Richard Eric Charles Massey v R (No.2) No. SCCRM 94/345 Judgment No. 4791 Number of Pages 6 Criminal Law and Procedure Sentence

[1994] SASC 4791

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MILLHOUSE(2) and PERRY(3) JJ

CWDS
Criminal law and procedure - sentence - taking part in supply of heroin - prison officer delivering small quantity of heroin outside prison in expectation of receiving loan from a prisoner - previous good character - involvement of police in providing opportunity for commission of of fence - suspended sentence of 3 years' imprisonment with 2 year non-parole period not excessive.

HRNG ADELAIDE, 22 September 1994 #DATE 7:10:1994

Counsel for appellant:     Mr G R Algie

Solicitors for appellant:    C B McDonough and Co

Counsel for respondent:     Mr J J Doyle QC with Mr S A Millsteed

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant has appealed against a sentence of three years' imprisonment with a two year non-parole period suspended upon his entering into a one year good behaviour bond for the crime of taking part in the supply of heroin.

2. The appellant was a prison officer who delivered a small quantity of heroin outside the prison at the request of a prisoner from whom he was seeking a loan. The facts are set out in more detail in the reasons for the dismissal of the appeal against conviction; Massey v R (No 1)(CCA, 7 October 1994, unreported, Judgment Number 4787 available on SCALE).

3. Mr Algie for the appellant has argued that the sentence was excessive particularly in view of the history of the relationship between the prisoner and the appellant and the pressure under which that had placed the appellant. He argued that that pressure arose, at least in part, out of the methods adopted by the police in the course of their investigation and that that factor was not given sufficient weight.

4. The appellant by virtue of his occupation, was in a position of public trust. He allowed himself to be corrupted by accepting a promised favour in the form of a loan from a prisoner. Such pressure as he was under was created by his own actions in making plans for himself and his family in the expectation of receiving the promised favour. The sentence is not a heavy sentence for delivering heroin, especially when the aggravating feature of the abuse of position is considered. The learned sentencing judge expressly referred to the appellant's previous character and the relationship with the prisoner. The suspension of the sentence indicates that he gave full weight to those factors.

5. I would dismiss the appeal against sentence.

JUDGE2 MILLHOUSE J Appeal against conviction and sentence by a man who pleaded guilty to taking part in the supply of heroin.

2. The first question the Court had to decide was whether a person may appeal against conviction when he has made a "judicial confession", pleaded guilty.

3. This is what had happened in the District Court. The appellant asked for and was given a voir dire on the question of entrapment, whether there should be either a stay of proceedings or the exclusion of evidence. Judge Bright was against the appellant. The appellant pleaded guilty and the Crown entered a nolle prosequi on the other count in the Information, improperly exercising public office.

4. Had the appellant maintained his plea of not guilty he would most likely have been convicted - although as we know, in a trial "there's many a slip 'twixt the cup and the lip", a witness may have fallen under a bus and so on. If he had been convicted the appellant could then have appealed and a ground could have been that the evidence obtained by entrapment should have been excluded. A lot of time and money would have been spent, wasted really, to get to the same position as we were in at the beginning of the hearing of the appeal. Fortunately not only had it been sensible to proceed as the appellant did but the procedure is also supported by authority. The Solicitor General told us that this is often done in England. It has been done here too. In R v Romeo (45 SASR 212) (the facts of which have some similarity to the facts here), the Court permitted an appeal after a plea of guilty. Johnston J considered the question at pages 226-228. At page 226 he said:-
    " The Crown accepted that there was a right of appeal
    against conviction in these circumstances: the judgment
    of a court in passing a conviction based upon a plea of
    guilty which plea is made on an erroneous basis that a
    defence is not open is a judgment which is in error in
    law within the meaning of s 353(1) of the Criminal Law
    Consolidation Act 1935, and alternatively it was conceded
    by the Crown that it may be regarded as a miscarriage of
    justice. Similarly, the Crown conceded that a ruling
    that the discretion to exclude evidence will not be
    exercised may be similarly categorised; for the purposes
    of the present case the Crown was prepared to concede
    that it could be so categorised. The question of a right
    to appeal had been discussed between the appellant and
    the trial judge before the plea was entered and the plea
    was entered upon the understanding to which the Crown was
    a party that the accused would not lose the right of
    appeal."

5. We were not told whether the matter had been discussed by counsel at this trial, as it had been in Romeo, but the Solicitor General accepted that we should hear the appeal and we proceeded to do so.

6. The facts are accurately set out in the Reasons of Judge Bright. I need only summarise them.

7. The appellant had been a prison warder at Yatala. A man named Hunt, (whom the learned trial judge described as "a clever con man ... an able pretender, manipulator and persuader") was a prisoner. Hunt came to know that the appellant was in need of money. Hunt offered the appellant a loan, first of $5 000 and a week later of $10 000. (Hunt, I think, had no money to lend but the appellant must have assumed he had.) Hunt dangled the loan before the appellant. The appellant became increasingly anxious to get the money. It was mental torture really: the more Hunt delayed in producing the money the more desperate for it the appellant became.

8. (On the voir dire Mr Algie, for the appellant, sought to call a psychologist to give evidence of the temptation which the appellant, an apparently mentally normal man, must have experienced to do what Hunt asked of him so as to get the loan. The learned trial judge heard the evidence de bene esse but later rejected it, saying:-
    "Having heard it, I do not think that it takes me into
    areas where ordinary experience would not allow a
    reasonable judge or juror to form his own opinion about
    susceptibility to pressure and temptation.... It is only
    rarely that evidence to explain ordinary human behaviour
    is admissible. That is classically a matter for jury
    determination. In the present case I do not find the
    fact that a man succumbs to pressure and temptation so
    unusual that I feel I can be assisted by the evidence
    led. I rule that it is not admissible." The learned judge was quite right.)

10. There seems to be no evidence that prison officers may not borrow money from prisoners but it is so wrong a thing to do that I need no evidence to assume it is forbidden and regarded as a serious offence. Indeed the other count of improperly exercising public office was based on it.

11. Hunt told the police of his offer to the appellant and the appellant's acceptance.

12. The authorities - I use that wide term to embrace the prison administration and the police - suspected a drug ring at Yatala and other corruption amongst prison officers. There was at the most only a vague suspicion that the appellant, a man previously of good reputation, was involved in either. Yet when the police found that the appellant was prepared to take a loan from Hunt they decided to "test" him further. They learnt that the appellant had already done some favours for prisoners. Their first test was to get Hunt to ask the appellant to bring into the gaol pornographic literature for him. The appellant did so.

13. The police devised a scheme, with Hunt's help, to test the appellant further, this time in relation to drugs. That the police first introduced drugs into all this, is of significance: there had been no mention of drugs up to this point. Hunt was to ask the appellant to get some heroin for Hunt's de facto (not in gaol): the police would then "spring" the appellant.

14. Hunt may be a most untrustworthy person (the Crown did not call him, or his de facto, on the voir dire): certainly he did not follow the police scheme. The appellant said he needed $200 to buy the heroin: he could not get it on credit. The police supplied $200: Hunt's de facto gave it to the appellant: the appellant took the money into Yatala and gave it to Hunt: Hunt got heroin in the gaol and gave it to the appellant: the appellant took it out and handed it over to Hunt's de facto in exchange for a solicitor's trust account cheque for $10 000. He was then "sprung" by the police. (It will be noticed that Hunt had not followed police directions but changed the arrangement: that was a risk the police took in working with an unreliable person.)

15. The question is, was this entrapment? Were the actions of the police and of Hunt such that the evidence obtained by "testing" the appellant should not be used?

16. The answer is not easy. In R v Ridgeway (60 SASR 207) Matheson J quoted (at pages 230-231) Street CJ in R v Dugan ((1984) 2 NSWLR 554) describing the balance which a Court must keep: the quotation is apt:-
    "The Court is required to make a relative, balanced
    assessment of the interests of the community in
    facilitating the apprehension of offenders and bringing
    them to conviction, on the one hand, and, on the other
    hand, repudiating conduct and subterfuge in the processes
    of criminal investigation that are unfair or unlawful in
    the sense of bearing so gross a character as to offend
    relevant concepts of democratic decency.

The seriousness of the criminal conduct or plans being
    investigated will be relevant in arriving at this
    balanced assessment, as will be what is known or
    reasonably believed of the persons under investigation."

17. Cox J with his typical thoroughness, erudition and clarity considered at length the whole question of entrapment in The Queen v Vuckov and Romeo (40 SASR 498). I am content to accept his conclusions. At pages 522-523 he said:-
    " The discretion to stop the trial may be exercised in a
    defendant's favour where he was induced to commit the
    crime with which he is charged by the wrongful
    importunities of the law enforcement authorities or, in
    some circumstances, of someone acting in a relevant sense
    on their behalf ... Certain general propositions may be
    made. Obviously there will be no entrapment, in the
    relevant sense, unless the police or someone acting on
    their behalf incited the defendant to commit the crime
    with which he is charged. What the cases refer to as
    'ordinary solicitation' of a suspected person may not be
    offensive, but 'calculated inveigling or persistent
    importuning' will be ... There is no question, then, of
    the automatic exclusion of the kind of agent provocateur
    evidence that has been regularly admitted by the courts
    in betting and brothel-keeping and sly grog cases. In
    The Queen v. Veneman and Leigh, a procuring case, Bray
    CJ said: 'Evidence of this kind has been admitted in
    the criminal courts for centuries. It is commonplace for
    evidence to be given by a police officer that a licensee
    has, at his request, sold him liquor after hours, or that
    a bookmaker has, at his request, accept his bets. And
    such evidence has been given and admitted in the case of
    graver crimes: see R. v. Nation.'

However, the learned Chief Justice ... posed a
    distinction between this sort of case and 'a case where
    the Crown witness beguiles or seduces an unwilling
    accused to commit or attempt to commit the crime'. ...
    There is a big difference between talking a man into a
    crime that, left to himself, he was unlikely to commit,
    and merely giving him the opportunity to do what he was
    already disposed to do. However, evidence of
    predisposition is not the only factor. What the police
    and their agent did, in what manner and to what extent
    either may have exceeded the bounds of propriety, will be
    important, possibly all important. As the conduct of the
    police is under judgment, it will be relevant to consider
    whether they had good reason to suspect that the
    defendant would willingly commit the crime in question,
    and evidence that he had done the same sort of thing in
    the past may tend to show that he was very ready to
    offend on the occasion charged against him. The nature
    and magnitude of the particular offence may also be
    relevant factors. Methods that would be regarded as
    objectionable in the investigation of minor breaches of
    the law may have to be accepted in the case of very
    serious crimes."

18. There can be no doubt at all about the seriousness of corruption and drug running going on in gaols. The public interest demands that both should, if possible, be uncovered and stopped. I accept that that was the object of the exercise here. Was, though, what police did in relation to the appellant fair or did they go too far?

19. I have come to the conclusion that the police did go too far, for this reason. While the appellant had already been guilty of wrongdoing, in being prepared to take the loan and doing favours for prisoners, before the police came into it, and while they may have been otherwise generally suspicious about him, they had nothing specific on him in relation to drugs. It was they who first introduced drugs into the plot. There is no evidence at all to suggest that the appellant would have done anything about drugs had it not been for Hunt's request to him, prompted by the police and reinforced by the teasing over the loan.

20. It is not enough, as the Solicitor General argued it was, that the police were concerned with corruption generally. I notice that Cox J in Vuckov (it is in the passage I have already quoted) referred to inciting a defendant "to commit the crime with which he is charged". Here the charge is taking part in the supply of heroin. Were we considering the other count, abandoned by the Crown, the Solicitor General would have been on stronger ground.

21. By the time the notion of drugs was introduced the appellant was desperate for money and was being not merely teased but tortured by Hunt through delay in producing it. By then, having been "strung along" he would have done almost anything to get the $10 000. This amounted to "calculated inveigling if not persistent importuning." It was not fair. The unfairness outweighs the public interest.

22. In my view it would be unjust for the evidence obtained in this way to be led. I regret that I cannot agree with the conclusion of the learned trial judge.

23. The appeal should be allowed.

24. What then should we do? During argument there was uncertainty as to the proper course, whether we should grant a permanent stay of the prosecution or merely exclude the evidence. In Vuchov (at page 518) Cox J said:-
    " A stay of proceedings appears to me to be in principle
    a more satisfactory way of dealing with the problem, at
    least in the general run of cases, than simply excluding
    the evidence as having been unlawfully or unfairly
    obtained."

25. I accept that and suggest that we should grant a stay.

26. With the conviction the sentence (it was three years imprisonment with a two year non parole period, suspended) also falls. I should say that in my view were the conviction to be upheld then the penalty imposed was moderate, one with which I would not interfere.

27. I suggest that the appeal against conviction be allowed.

JUDGE3 PERRY J I agree with King CJ that the appeal against sentence should be dismissed for the reasons given by him.