Regina v Thomas

[1999] NSWCCA 34

Reported Decision: 107 A Crim R 311

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Thomas [1999] NSWCCA 34
FILE NUMBER(S):	CCA 60466/98
HEARING DATE(S):	11March 1999
JUDGMENT DATE:	11 March 1999
PARTIES :	Regina v Alan Robert Thomas
JUDGMENT OF:	Mason P at 16; Grove J at 1; Dunford J at 17

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0822; 97/11/0113; 96/11/0879; 97/11/0140
LOWER COURT JUDICIAL OFFICER:	Flannery DCJ

COUNSEL:	W.G. Dawe, QC (Crown) In person
SOLICITORS:	S.E. O'Connor (Crown)
CATCHWORDS:	Criminal Law and Procedure - Sentence - Assistance to Authority
ACTS CITED:	Crimes Act 1900
CASES CITED:	R v Gallagher 1991 23 NSWLR 220 R v Cartwright 1989 17 NSWLR 243
DECISION:	Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60466/98

MASON P
GROVE J
DUNFORD J

11 March 1999

REGINA v ALAN ROBERT THOMAS

JUDGMENT

1 GROVE J : This is an application for extension of time and leave to appeal against severity of sentence by Alan Robert Thomas who appeared for sentence before Flannery DCJ in the Sydney District Court on a number of occasions culminating in sentences being imposed on 1 June 1998. The extension of time should be granted and further comment on that is not necessary. The applicant is presently held in the Special Purpose prison at Long Bay for reasons which will be apparent from what appears hereunder.
2 The applicant is now aged 49 years and was formerly a detective sergeant of police. Setting to one side the crimes for which he is now in prison, there was evidence of commendable police service. He had no prior convictions. He was married and the father of two small daughters as well as an older son from a previous marriage. That son was in frequent contact with the applicant and his new family and stayed with them as a member of their unit on regular occasions. The applicant’s wife gave extensive evidence at the sentencing hearing. As a result of significant assistance which the applicant has given and is continuing to give to law enforcement authorities his wife and daughters were placed into protection although it appears that they withdrew from the scheme last year during the sentencing proceedings.
3 The applicant pleaded guilty to offences charged in four indictments and adhered to pleas of guilty previously given to a magistrate in respect of four further charges upon which he was committed for sentence pursuant to s 51A of the Justices Act. In respect of the first three indictments offences scheduled on forms pursuant to the Criminal Procedure Act were taken into account. The terms of the charges were more completely specified by Flannery DCJ in his remarks on sentence and it suffices for present purposes that I record short descriptions. The first indictment consisted of a single count of conspiracy to pervert the course of justice, and two offences of possessing and disposing respectively of unlicensed firearms were taken into account on the schedule; the second indictment contained three counts of perjury, and taken into account were two charges of perverting the course of justice; the third indictment contained a single count of attempting corruptly to receive commission, and taken into account on a schedule were 18 offences of unlawfully accessing the police computer system, two offences of attempting corruptly to receive a commission and four offences of corruptly receiving commission; the fourth indictment contained two counts of concealing a serious offence, in each case the offence related to a separate murder, and finally, the committals by a magistrate were for sentence on one count of perverting the course of justice and three counts of corruptly receiving commissions.
4 The applicant is not legally represented in this appeal but has placed submissions before the Court in writing. In the initial application filed with the Court the applicant indicated that the discount for assistance to authorities which he had received was 50% whereas he claimed other persons who had given similar sorts of assistance were more favourably treated. The applicant stated “this is the only matter I wish to raise in this appeal against the sentence imposed upon me”. The learned sentencing judge (as was necessary) imposed a series of sentences upon the applicant but he made orders that all sentences could be served concurrently so that the effective enveloping term amounted to a total sentence of eight years penal servitude which was divided into a minimum term of three years and an additional term of five years. It ought to have been specified that the applicant would become eligible for release on parole at the expiry of the three year minimum term; s 8 Sentencing Act. Since filing the original notice the applicant has received a copy of his Honour’s unpublished further remarks on sentence and has indicated a wish to challenge a fact found therein. That challenge should also be dealt with. The applicant was represented by counsel in the sentencing proceedings and by consent, and I gather, at the suggestion of counsel then appearing for the applicant, his Honour’s published remarks on sentence were supplemented by a confidential document prepared for this Court should, as in the event has happened, either the applicant or the Crown have sought to bring the sentences before it for review. The reason for this course was stated by his Honour to be his concern that disclosure “could be gravely detrimental” to the applicant in the sense that the detail of the assistance that he had given and was giving may place his life and the lives of his family in jeopardy from wrongdoers whose activity he had revealed and in respect of which he was prepared to give testimony in any prosecution.
5 The applicant referred to a statement in the confidential remarks when his Honour recorded that the applicant outlined to detectives who were interviewing him that he had agreed to provide an alibi for a man referred to as “X”, who had been charged with murder, for the sum of $100,000. “X” was tried for murder in the Supreme Court and found not guilty after false alibi evidence (in respect of the arrangements for which the applicant had participated) was given. He did not himself give evidence. The interview included these questions and responses:
“Q. How much money over the, the period of time you’ve known them, would you have gotten off “X”?
A. Oh, I included them all in, you know, all in one group because …
Q. How much would you have gotten off this group?
A. Oh you know, I’d say I would have received you know about one hundred thousand dollars.”

6 The judge’s observation that there had been an agreement to receive $100,000 for provision of the alibi for “X” was, as the applicant asserts, incorrect. However, given the circumstances and the content of the answers that I have recited, I am unable to conclude that that inaccuracy in any way tainted the ultimate exercise of sentencing discretion by Flannery DCJ. It would appear that the jumbling of the information concerning the sum of $100,000 occurred in a police collation of facts for the purpose of placing before the Court but there is no basis for any suggestion that the inaccuracy played any part in inflating any sentence imposed upon the applicant.
7 In the written submissions the applicant contended that, as his original solicitor and counsel assigned by legal aid withdrew in February 1998 by reason of a conflict of interest arising out of other professional commitments, the subsequently appointed counsel and solicitor had insufficient time to properly prepare his case. In fact, on his own calculations, approximately two months were available and I am unable to attribute any validity to this complaint. My view is somewhat fortified from the observation that the matters were before the sentencing judge on 13 March, 17 April and 8 May and the applicant wrote a letter to his counsel dated 14 May which commenced with the expression “Thank you for the excellent manner you conducted my sentencing hearing last Friday”. The applicant forwarded a copy of this letter to the Court.
8 The applicant referred to an incident said to have occurred during the proceedings when counsel said to the presiding judge that perhaps he should have drawn “a clearer picture” which was accompanied by a gesture of drawing a square in the air with his fingers. The applicant complained that he gained the impression that this angered the judge and he went on to express a conclusion that he did not receive proper legal representation. There is no reflection in his Honour’s remarks or in his conclusion as to sentence which gives rise to any justifiable impression that any anger was vented upon the applicant. The transcript of evidence and the material placed before the judge are eloquent of diligent and competent attention to matters which could be advanced on behalf of the applicant. I reject the contention that the applicant did not receive proper representation.
9 I return to the principal thrust of the applicant’s written argument. He stated that Flannery DCJ had remarked that having regard to all the charges if he was not to take into account the assistance by the applicant he would have imposed a sentence of “eight years with a non parole period of six years”. The applicant then contended that it was stated by his Honour that he had decided “to reduce my non parole period from six years to three years”. It is from arithmetical extrapolation of these remarks that the applicant reaches the conclusion that he was given a “discount” of 50%. Save for Federal offences, the language of the submission has been obsolete since the supersession of the Parole of Prisoners Act by the Sentencing Act 1989. It can be observed, of course, that division of a total sentence of eight years pursuant to the formula mentioned in s 5(2) of the Sentencing Act would result in a minimum term of six years with an additional term of two years.
10 The transcript does not reveal any remarks in terms attributed to his Honour however an affidavit of Elizabeth Catherine Corbett sworn 10 March 1999 deposes to her presence on behalf of the Director of Public Prosecutions at the proceedings on 1 June 1998 where she heard Flannery DCJ indicate that the “total” minimum term will be 3 years but would have been 6 years but for assistance. She has exhibited a contemporaneous notation to that effect. His Honour was not obliged to separately quantify the amount of discount: R v Gallagher 1991 23 NSWLR 220. It is clear that the special circumstances expressly found were a basis for the division of the total term otherwise than in accordance with s 5(2) of the Sentencing Act. It would appear that the exercise engaged in by Flannery DCJ was to reduce the minimum term component of the division of total term whereas what the applicant was entitled to was a discount of sentence (as distinct from minimum term) for his assistance to authority. Although his Honour apparently limited himself to the remarks mentioned, it is open to conclusion that the total of 8 years was so low as an assessment for the overall offences that some discount was in fact applied. Accepting, as I do, the evidence of Ms Corbett there remains no revelation of what process was adopted to result in the total term of eight years. The circumstance that there was no submission from the applicant about term other then the asserted insufficiency of the reduction of minimum term from 6 to 3 years can be noted but some reference should be made. Arithmetically, if a similar discount has been applied to the longest sentence, his Honour would have to be taken to have started with a notional sentence of 16 years penal servitude which is two years in excess of the available maximum for the offence specified in the single count of the relevant indictment. I cannot perceive that the overall criminality for the 39 offences in the indictments, committals for sentence and schedules could possibly be adequately reflected (ignoring discount for assistance) by an enveloping total imposition of 8 years and I therefore conclude that that figure represents the discounted result of some higher notional assessment upon which the record is silent. It appears however that his Honour’s intention was, as the applicant claims and Ms Corbett’s evidence suggests, to apply a reduction of 50%. Although I would not assess the maximum prescribed penalty as appropriate to the count in the first indictment, if the structure of the various impositions for the other crimes is preserved, I would impose a sentence of 14 years penal servitude on that count to reflect the totality of criminality involved. I would thereafter apply the discount of 50% for assistance to reach a sentence of 7 years penal servitude.
11 In his original filed document the applicant claimed that Flannery DCJ commented that he could “understand why (the applicant) could feel I should lodge an appeal against his decision”. The applicant went on to repeat his assertion about the “discount” of 50%. The reference to appeal made by his Honour appeared in the published remarks on sentence and referred to his adoption of the suggestion that there be a second confidential set of remarks detailing the assistance given by the applicant. His Honour stated:
“I have adopted a suggestion, lest this case goes on appeal, (it is the sort of case in which either side may appeal because of the unusual set of facts)”.
12 The applicant made a further attribution to the remarks of the sentencing judge that because the applicant was helping numerous people “with the money I obtained from people who were trying to rort the judicial system” that he was a “type of Robin Hood”. This contention does not find expression in the record of proceedings.
13 The applicant has sought to support his assertion of the inappropriateness of the “50% discount” which, as I have sought to demonstrate has uncertain arithmetical antecedents in the applicant’s own impressions of the proceedings, by reference to discounts said to have been received by other prisoners. The applicant goes so far as to assert that his “discount” of 50% is the lowest received by any person imprisoned with him in the Special Purpose unit. The contention that for assistance to authority a discount of over 50% is either the norm or the common experience is contrary to my observations in the passage of appeals through this Court. Reference has been made to R v Cartwright 1989 17 NSWLR 243, where in the joint judgment (Hunt and Badgery-Parker JJ) the following appears (@ 255-6):
“There is, of course, no fixed tariff in this State against which a discount for assistance to the authorities can be judged. Nor do we suggest that there should be, as the possible variations between individual cases are infinite. In R v King (at 123), the English Court of Appeal referred to a tariff for discounts in that country of between about one-half and two-thirds of what was otherwise an appropriate sentence, according to the particular circumstances. We believe that there may well be some cases where less than one-half discount would be appropriate. But the magnitude of the discount given is nevertheless very apparent.

It is not always possible from the judgments in the various cases to ascertain the length of sentence considered to have been appropriate to the particular case (without reference to the assistance given), in order to calculate the extent of the discount in fact allowed. In R v King itself, such a sentence was considered to be ten years; the judge had imposed six years and this was reduced on appeal to four and a half years. In the earlier case of R v Sinfield , the equivalent figures were fifteen to eighteen years as otherwise appropriate, eight years imposed, reduced to five on appeal. In R v Golding , a discount of approximately 50 per cent was given. In R v Hayes , a sentence of seven years was reduced to four. In R v Heard aka Summers , a sentence of three years was converted into a bond for the same period. In R v Perez-Vargas , the initial sentences imposed without reference to the assistance given were considered to be excessive in any event, so that the extent of the reduction (although substantial) is masked. Again, the magnitude of the discounts given in all of those cases is apparent.”
In that case the effect of the order made was to apply a reduction of 50%.
14 Be that as it may, the sentencing judge was obliged to pay heed to s 442B of the Crimes Act (inserted by Act No 2 of 1992, subsequent to Cartwright ) which specifically bound him not to reduce a sentence, discounted for assistance to authorities, so that the sentence became unreasonably disproportionate to the nature and circumstances of the offence: see s 442B(2). It can be accepted that (in favourable terms) the sentencing judge said that he had “never seen anything like it” and he described the level of assistance as “huge”, “quite extraordinary” and “magnificent”. Accepting that those findings were open to his Honour and that this Court should act upon them I am nevertheless of the view that having regard to the seriousness, range and number of the applicant’s offences, any lower imposition of minimum term than that finally pronounced by Flannery DCJ would offend the terms of the obligation cast by s 442B(2). The applicant has made reference to his claim that he was “very mentally ill” at the time of his offences but it must be observed that they were committed over a significant span of time and obviously involved repeated and deliberate criminality. His position as a senior non commissioned officer in the police service could not be ignored.
15 Save the remark concerning $100,000 discussed above, I detect no error in his Honour’s remarks or assessment. The duty of this Court expressed in s 5 of the Criminal Appeal Act is, in effect, to dismiss the appeal unless it is of opinion that a less severe sentence should have been passed. The sentence imposed subject to adjustment to recognize the notional “overrun” of the prescribed maximum penalty on the count in the first indictment was well within the range of sound exercise of discretion giving proper account of the applicant’s assistance in accordance with the precepts of s 442B of the Crimes Act.
I would grant the extension of time and leave to appeal against sentence and make the following orders:
1. Appeal allowed to the extent that the sentence imposed on the first indictment be quashed.
2. In lieu thereof, taking into account the two matters on Form 1, the appellant be sentenced to 7 years penal servitude to consist of a minimum term of three years commencing on 4 January 1997 and expiring on 3 January 2000 together with an additional term of 4 years from 4 January 2000.
3. Specify the appellant will be eligible for parole from 4 January 2000.
4. Subject to the foregoing all other sentences and orders made in the District Court confirmed.
16 MASON P: I agree.
17 DUNFORD J: I also agree.
18 MASON P: The orders of the Court will be as proposed by Grove J.
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