R v Thompson

[1994] QCA 393

IN THE COURT OF APPEAL [1994] QCA 393

SUPREME COURT OF QUEENSLAND

C.A. No. 336 of 1994.

Brisbane

[R v. Thompson]

Before Pincus J.A. Davies J.A. Derrington J.

T H E Q U E E N

v.

STEVEN PAUL THOMPSON

(Applicant)

_________________________________________________________________

Pincus J.A. Davies J.A. Derrington J.

_________________________________________________________________

Judgment delivered 16 November 1994

Judgment of the Court
_________________________________________________________________

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED BY VARYING SENTENCES IMPOSED BELOW. ALL 20-YEAR SENTENCES IMPOSED BELOW REDUCED TO 12 YEARS. RECOMMEND THAT, IN RELATION TO ALL 12-YEAR SENTENCES, APPLICANT BE CONSIDERED FOR PAROLE AFTER HAVING SERVED 4 YEARS. OTHERWISE SENTENCES IMPOSED BELOW CONFIRMED.

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CATCHWORDS: CRIMINAL LAW - sentence - offender convicted of over 2000 property offences - over $3.24M in property taken - offender informed police of majority of offences - but for information offender would not have been convicted of more than 20 offences - police affidavits to effect that applicant provided information relating to the commission of offences by other parties - question as to what reduction in sentence should be made taking those factors into account.

Perrier (No. 2) [1991] 1 V.R. 717

Hayes (1981) 3 A.Crim.R. 286.

Counsel:	Mr D Rangiah for the appellant. Ms L Clare for the respondent.
Solicitors:	Boystown Legal Service for the appellant. Director of Prosecutions for the respondent.

Hearing Date: 27 October 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16/11/1994

This is an appeal against sentences imposed in the District Court in relation to 2,289 counts of property offences; there were 886 burglaries, 184 counts of house-breaking, 1,115 counts of stealing, 63 counts of unlawful use of a motor vehicle and smaller numbers of other offences including armed robbery, dangerous driving, wilful damage and attempted false pretences. Of those offences, 2,169 were taken into account under s. 189 of the Penalties & Sentences Act 1992, and those 2,169 offences involved the theft of or damage to property in a sum of about $3.24M. Many of the offences were committed while the applicant was on probation or bail in respect of other offences. The applicant committed the offences from when he was 20 years of age until he was nearly 24.

The judge imposed a variety of sentences of which the highest were as follows. For one count of armed robbery in company and eight counts of burglary, the applicant was sentenced to imprisonment for 20 years and it was recommended that he be considered for parole after 6 years and 7 months; for each count of housebreaking he was sentenced to 12 years imprisonment with the same recommendation for parole.

It is desirable to say more about the armed robbery count, the only one on which the applicant was tried. The sentencing judge pointed out that, although no violence was used, a threat of violence was made; the robbery was of a service station and was carried out by two men, one of whom was the applicant, who was armed with a rifle. A small amount of money was taken, and the Crown relied upon the implicit threat constituted by the presence of the rifle. It does not appear that any personal violence was used or threatened in relation to any of the other offences.

Prior to these convictions, the applicant had been convicted of many offences including drug offences, breaking and entering, burglary and stealing. He had been sentenced to a number of terms of imprisonment: in 1992, 9 months, 3 months and then 6 months, and in 1994, 6 months and again 6 months. According to the prosecutor who appeared before the sentencing judge, in July, August and September 1993 the applicant was persistently being arrested and he began to co-operate in October 1993, taking the police on "tours of south-east Queensland reliving his career". It appears that on many occasions he had scaled the outside of highrise buildings to enter units, particularly on the Gold and Sunshine Coasts, but he had also used other methods. The offences now in question were principally committed from 1990 to 1993.

The judge was told that one of the investigating police officers had said that, but for the co-operation of the applicant, he would have been charged with fewer than 20 offences, and that statement was not disputed. His Honour was also informed that the applicant had stolen to acquire funds to pay for a bad drug habit, but that he had also lived well during the time when he was committing the offences. He was said to have been a model prisoner since his incarceration began.

The material before the Court included affidavits (Exhibit "Z") by police officers relating to the applicant's co-operation in telling the police about the offences he had committed, and also acting as an informant. We will not give detailed information in these reasons concerning the latter aspect since, presumably, doing so might increase the risk that the applicant's actions will bring about retaliation against him or his family. It is necessary to say, however, that the affidavits support the view that the information the applicant supplied to the police about offenders other than himself has been of great value.

Counsel were unable to refer us to any authority in which there has considered an offender guilty of a comparable collection of burglaries, house breakings and the like. The primary judge gave fairly extensive reasons; the most important part of them is contained in the following sentence:

"The allowance for timely pleas, ex officio indictments, the material in Exhibit Z are to be balanced against the fact that there was a trial for armed robbery in company for which little or no allowance should be made, and that Crown counsel submits the appropriate sentence is in excess of 20 years' but it should be reduced to 20 years' to give recognition to matters in your favour and to put you in a position, on his submission, where you would not be prevented from applying for parole earlier than 13 years".

As has been mentioned, the highest sentence imposed was 20 years, so that it appears that his Honour accepted the submission of the Crown; it should be added that counsel for the applicant below did not disagree with the proposition that a sentence of about 20 years would be appropriate.

In our opinion, if one left out of account altogether both aspects of co-operation - information about the applicant's own offences and information with respect to others' offences - a sentence of 20 years imprisonment for these offences could well have been appropriate, even for such a young man; where millions of dollars worth of property has gone and little of it has been recovered, and where thousands of offences have been committed, such a sentence might not be thought excessive. For the purposes of arriving at suitable discounts, we propose to use 20 years as a starting-point.

The Crown has given us two decisions in which large sums were stolen: Higgs (1986) 8 Cr.App.R.(S.) 440 - ,3M and Ross (1989) 11 Cr.App.R.(S.) - ,1.5M. The sentences were reduced to 8 years and 9 years respectively, but these were not very comparable cases. Counsel for the applicant has referred us to Pooley (C.A. No. 130 of 1985, 12 August 1985) a case involving misappropriation of about $1M, of which about $200,000 was recoverable. There a sentence of 9 years imprisonment was upheld in the Queensland Court of Criminal Appeal. We have also noted the decision in the "white collar" case of Jarrett (Coldrey J, Victorian Supreme Court, 30 June 1994). Jarrett was involved in a complicated series of deceptions which produced $3M for him, those deceived being shareholders in a public company. Because of Jarrett's co-operation and promise to give evidence against co-offenders, as well as other strong mitigating circumstances, he was sentenced to 18 months imprisonment, to be suspended after 6 months. It is of interest to note that there the Crown told the judge that a wholly suspended sentence would not be inappropriate.

It is repetitive to say so, but on the material placed before the judge, which his Honour accepted, less than 1% of these offences would have come before the Court but for the information the applicant supplied.

On the other aspect of co-operation, Mr Rangiah for the applicant referred us to the decision of the English Court of Appeal in King [1986] 82 Cr.App.R. 120. King had organised 31 professionally executed burglaries and three robberies, the total amount of property involving more than ⊥150,000. He was sentenced to 6 years imprisonment, but that was reduced on appeal to 42 years because of information given by King, which enabled the police to solve many other crimes. After referring to the advantages of encouraging criminals to provide information of the kind King gave the police, the court remarked that an expectation of substantial mitigation was required in order to produce the information and:

"The amount of that mitigation, it seems to us, will vary...from about one-half to two-thirds reduction according to the circumstances as outlined above".

In the case before them the judges thought the starting point was about 10 years or more, but in view of the "great" assistance given, that was reduced to 42 years.

In the Victorian Court of Criminal Appeal, the proper amount of reduction in a heroin case produced a sharp difference of view. In R v. Perrier (No. 2) [1991] 1 V.R. 717, a courier who had brought heroin in from overseas co-operated with the police so as to bring about the detection of his principal. The courier was sentenced to 5 years imprisonment with a minimum of 3 years, and the principal was sentenced to 22 years. On appeal the courier's sentence was increased to 7 years with a 5 year non-parole period, but Brooking J expressed the view that the prosecution might well exclaim, as did King Pyrrhus: "Another such victory and we are undone". McGarvie J, as his Excellency then was, referred to the difficulties of preventing trafficking in heroin and suggested that in sentencing couriers:

"...the objective of securing their co-operation to implicate principals should substantially prevail when that objective runs counter to the objective of deterring people from acting as couriers by imposing heavy sentences" (725).

His Honour expressed the view that if the courier's co-operation resulted in the conviction of the principal trafficker, the courier admitting the offence and pleading guilty "might well have the period of sentence reduced by about two-thirds" (726). Murphy J agreed with the order proposed by McGarvie J, but Brooking J thought the discount allowed to be too generous.

It should be noted that in another decision of the Victorian Court of Criminal Appeal, Prideaux (1988) 36 A.Crim R. 114, where an attempt was made to have a sentence reduced because of information supplied well after sentencing, the court held in effect that the matter was best left to the executive government.

Another indication that in appropriate circumstances heavy discounts may be granted for co-operation of the kind being considered is to be found in the Western Australian case of Hayes (1981) 3 A.Crim.R. 286. There the applicant had been sentenced to 7 years imprisonment, principally for a number of offences of breaking and entering with intent. There had been co-operation to enable the police to identify and prosecute other persons. Burt CJ remarked:

"It is well recognised and has always been that informers can be of enormous value in the detection of crime and in the bringing of offenders to justice. Some would say that for that purpose their use is essential...Hence the dilemma. If, when an informer comes to be punished for his own criminal acts, no reward at all is given to him for the information given by him leading to the apprehension and punishment of other criminals, that information will not be forthcoming...If, on the other hand, the reward for an informer so placed is too large, it could lead to the giving of false evidence and to many other abuses". (287)

His Honour also said:

"But should it appear that the information given has been of substantial assistance in the detection of crime and in the conviction of offenders and that the disclosures made have been full and frank, then when he comes to be sentenced some allowance should be made on that account. In a number of reported cases it appears that the allowance has been substantial and it has resulted in a reduction in the sentence of 50% or even more. But each case must of necessity rest upon its own facts".

The sentences were reduced from 7 years to 4 years.

The disadvantages under which the court labours in a case like the present are that the information placed before it by the police is necessarily general rather than specific; further, it is untested. Having studied the statements made by the police here, and there being no suggestion that they should not be taken at face value, we think the present to be a case in which a substantial and identified discount should be given for the applicant's having provided information to assist in the investigation of offences other than those which he himself committed. To give a "lump sum" discount, allowing for that sort of co-operation as well as the applicant having revealed and given the details of nearly all the offences for which he has himself been convicted, is not an adequate response; it is better to make clear just how much Exhibit "Z", considered by itself, has saved the applicant.

In respect of the applicant's co-operation in relation to other offenders, we would reduce the starting-point of 20 years by 40%, to 12 years. Then we would take one-third off the non-parole period to allow for the pleas of guilty, and other co-operation in relation to the applicant's own offences, producing a recommendation for consideration of parole after 4 years.

The result is a great reduction in the sentence which would
have been appropriate but for the co-operation we have mentioned.
The reason for the magnitude of the reduction is the
corresponding magnitude of the offender's co-operation, not only
in voluntarily bringing to the attention of the police nearly all
the offences of which he has been convicted, but because he has

run the risks involved in providing highly valuable information

about offenders other than himself.

The application will be granted and the appeal allowed by varying the sentences imposed below. The 20 year sentences imposed below will be reduced to 12 years and we recommend that the applicant be considered for parole, in relation to all the 12 year sentences, after 4 years. Otherwise the sentences imposed below are confirmed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 336 of 1994
[R. v. Thompson]
Before:Pincus JA

Davies JA

Derrington J

THE QUEEN

v.

STEVEN PAUL THOMPSON

Applicant

REASONS FOR JUDGMENT - DERRINGTON J.

Judgment delivered 16/11/1994

The facts and relevant considerations are fully stated in the joint judgment of Pincus JA

and Davies JA. The difficulty arises in the implementation of the latter.

In my opinion, for the applicant's conduct in volunteering to police his guilt of a number

of offences which could not have been associated with or proved against him, and for his

assistance to the police in other matters, his longest sentence should be reduced to thirteen years.

For his cooperation in the disposal of the charges against him, including his pleas of

guilty, he should have the benefit of a recommendation for consideration for parole after five

years. This may seem less than a suitable allowance for this factor, but it has in some part

already been allowed for in respect of the first feature that went to reduce his head sentence, to

which it is related.