R v Wallis

[1999] QCA 288

99.288

COURT OF APPEAL

de JERSEY CJ
BYRNE J
WHITE J

CA No 62 of 1999

THE QUEEN

v.

STEPHEN JOHN WALLIS  Applicant

BRISBANE

..DATE 27/07/99

JUDGMENT

BYRNE J:  The applicant was convicted on his own pleas of guilty of two charges of official corruption and eight of forgery.  The corruption offences took place in late 1993 and early 1994.  The forgery offences took place over a period of almost four years between May 1992 and March 1996.

The applicant, who was born in late 1959, was serving a sentence of five years' imprisonment following a conviction at a trial for the supply of dangerous drugs.  That sentence was imposed in February this year.  He has a criminal history extending over some 20 years, although with the exception of the drug supply charge for which he was imprisoned and some other drug offences, his prior convictions were not for especially serious matters.  Many related to driving offences although a couple involved some dishonesty.

The corruption charges arose out of dealings with a
Ms Parkinson, an employee of the State Public Service, to procure drivers' licences in the false names of Daniel James Young and James Andrew Whiting.  The applicant corruptly paid money to Ms Parkinson to obtain these false licences, which were used in connection with the forgeries.

In February 1992 the applicant used the name Young to open a bank account and forged the application by signing that name. 
In early 1993 he forged a signature purporting to be that of Whiting to buy land. 

In December 1993, in connection with the corrupt arrangement with Ms Parkinson to obtain the false licence in the name of Whiting, he forged a writing purporting to contain Whiting's signature on a driver's licence application form.

In early 1994 he forged the signature of Young on a contract to buy land.  Shortly afterwards, he corruptly arranged for Ms Parkinson to provide him with a false driver's licence in the name of Young, and again forged a writing purporting to contain a signature on the licence application form.

In January 1995 he used Young's name on a mortgage granted over the land which had been purchased in Young's name.

In February 1996 he used the name Whiting on a contract to buy land.  The next month he endorsed a cheque in that name for payment into a bank account.

The motivation for these offences did not clearly emerge and no finding was made by the sentencing Judge with respect to it.  The prosecutor had suggested, somewhat obliquely, that the purpose of the offences was to "hide money".  The explanation offered by defence counsel was also less than clear. 

For the applicant, the sentencing Judge was invited to infer that the transactions were engaged in to disguise the existence of these properties from the applicant's former wife out of a concern that she was likely to press him in the future with respect to the properties and that he would not otherwise have been able to get on with his life, as it was said.

As events have transpired, it has not been shown that anyone actually suffered financial loss as a consequence of these transactions.  But the offences must have been motivated by a concern to avoid the ordinary consequences of the application of the law to the applicant in his circumstances.

There were several mitigating factors, all of which appear to have been taken into account. An early plea of guilty had been notified; no doubt considerable resource savings resulted. While in custody, the applicant had made useful attempts towards rehabilitation. His time in custody had also been somewhat more than usually difficult for reasons which were explained to the sentencing Judge (it was said) pursuant to section 13A of the Penalties and Sentences Act.

The applicant was sentenced to imprisonment for two years in respect of the official corruption offences, and to 12 months' imprisonment on each of the forgery counts.  The sentences were made concurrent with each other but cumulative upon the existing sentence of five years' imprisonment.  The sentencing Judge made a recommendation for eligibility for parole on 21 February 2001.  This date is six months after the date of the applicant's parole eligibility in respect of the five year sentence.

The recommendation for considerably earlier than usual parole in respect of these sentences was made on account of what the sentencing Judge compendiously described as "mitigating factors".

The official corruption offences in particular were, as the sentencing Judge aptly recognised, serious in their nature, calling for a sentence which gave appropriate emphasis to issues of both personal and general deterrence.  Those who would bribe public officers must expect punishment calculated to deter such misconduct.  And drivers' licences are relied on in the community for identification for a variety of purposes. Sometimes there is real potential for harm where false licences are used. 

The applicant's prior criminal history, though not especially serious, scarcely presented a case for leniency.  And though the forgery offences associated with the official corruption are not in the most serious categories that can be envisaged, nor were they trivial, especially viewed in light of the persistence in them over a period of almost four years.

It was submitted that the head sentence of two years in respect of the official corruption charges is excessive in comparison with the sentences imposed on Ms Parkinson - the public servant who arranged for the issue of the licences. 

She was dealt with for 15 counts of official corruption and 15 of associated forgeries in connection with the issue of the false licences.  We know, however, nothing of her prior criminal history; and I am unable to discern from such material as we have a satisfactory basis for a conclusion that the sentence imposed on Ms Parkinson, in comparison with those imposed on this applicant, indicates some unjustified disparity.

Mention was also made of the totality principle.  The five years' sentence of imprisonment in respect of the drug offence was, as I have said, imposed after a trial.  We have had the advantage of the sentencing remarks of the Judge who imposed that sentence.  It appears that the applicant was dealt with for an involvement in a very large supply of the first schedule drug Lysergide.  Some 10,000 tablets were involved.  $42,000 was the price paid in respect of these dealings by an undercover agent.

In my view the sentences of two years' official corruption are not, in all the circumstances, shown to be inconsistent with the application of the totality principle. 

Although the sentences were not light, in my view they were not beyond the range of a sound sentencing discretion, especially when regard is had to the recommendation for parole after only one quarter of the head sentence for the official corruption offences is served.  I would accordingly refuse this application.

THE CHIEF JUSTICE:  I agree.

WHITE J:  I agree also.

THE CHIEF JUSTICE:  The application is refused.

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