Wilson v Tasmania

[2004] TASSC 98

[2004] TASSC 98

CITATION:            Wilson v Tasmania [2004] TASSC 98

PARTIES:  WILSON, Thomas Joseph
  v
  STATE OF TASMANIA

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 57/2004
DELIVERED ON:  8 September 2004
DELIVERED AT:  Hobart
HEARING DATES:  26 August 2004
JUDGMENT OF:  Slicer, Evans and Blow JJ

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Character of offence – Generally – Bribery of police officer.

Aust Dig Criminal Law [832]

REPRESENTATION:

Counsel:
           Appellant:  C J Gibson
           Respondent:  J Ransom
Solicitors:
           Appellant:  A T Legals
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2004] TASSC 98
Number of Paragraphs:  14

Serial No 98/2004
File No CCA 57/2004

THOMAS JOSEPH WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J
EVANS J
BLOW J
8 September 2004

Order of the Court

Appeal dismissed.

Serial No 98/2004
File No CCA 57/2004

THOMAS JOSEPH WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J
8 September 2004

1. I have read the reasons for judgment prepared by Blow J and agree with both his reasoning and conclusion.  I would dismiss the appeal.

File No CCA 57/2004

THOMAS JOSEPH WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
8 September 2004

1. I agree with the reasons for judgment prepared by Blow J and would dismiss the appeal.

File No CCA 57/2004

THOMAS JOSEPH WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
8 September 2004

1. This is an appeal against sentence.  The appellant was sentenced to 18 months' imprisonment, with a non-parole period of 10 months, on a charge of bribery of a public officer, contrary to the Criminal Code, s83(b). The appellant contends that the sentence was manifestly excessive. He does not contend that a sentence of imprisonment was inappropriate, but contends that his sentence was too long.

1. The appellant pleaded guilty to the charge.  The undisputed facts as stated to the learned sentencing judge were essentially as follows.  Allegations were made that the appellant was selling large amounts of amphetamines from his home.  Police officers therefore obtained a search warrant and searched his home.  The search took place on 16 January 2004.  The searching officers seized small amounts of amphetamines and cannabis, as well as $11,775, which was in cash in a bag in the appellant's bedroom.  The appellant told police officers that he was the proprietor of an automotive business, and that the money belonged to that business.  The appellant was detained in custody from the day of the search until 15 April in relation to other matters.  On 19 April the appellant telephoned a Detective Constable Adams and requested the return of the money found in his bedroom.  Mr Adams requested the appellant's solicitor to have the appellant provide him with business documents relating to the money.  On 21 April an anonymous informant told Mr Adams that the appellant wanted his money back, and that he was prepared to offer Mr Adams $2,000 cash if he was able to return his money with no questions asked.  On 23 April at the Launceston police station the appellant had a conversation with Mr Adams about the return of the money.  On 26 April, the appellant telephoned Mr Adams and invited him to come to his workshop at St Leonards to discuss his money.  Mr Adams contacted the appellant on 27 April and asked him if he was still prepared to offer him money in exchange for the $11,775 cash that the police had in their possession.  The appellant said that he was, but that he did not want to discuss it over the phone.  Mr Adams told the appellant that he would be in contact with him to arrange a time and place to meet.  On 4 May Mr Adams phoned the appellant and arranged to pick him up from his home so that they could discuss the money.  Later that morning Mr Adams picked up the appellant from his home, and drove to a park where the $11,775 was discussed.  The appellant offered Mr Adams $2,000 in exchange for the remainder of the money.  The two men agreed to meet a short time later to exchange the cash.  At about 12.15pm they met in a car in Launceston.  Mr Adams had the cash in a bag.  The appellant took possession of it, removed $2,000, handed it to Mr Adams, placed the balance down the front of his trousers, got out of the vehicle, and was arrested a short time later. 

1. The appellant was interviewed by other police officers shortly afterwards.  He admitted giving Mr Adams $2,000 as a bribe.  He gave quite a detailed explanation of the events that had occurred.  His explanation was to the effect that the idea of a bribe was originally a joke.  He said that, after first approaching the police in April about the return of the money, he had been drinking in a hotel with a lady friend who knew Mr Adams, and a couple of other friends.  The lady told him she had received a message on her mobile phone from Mr Adams, saying to say hello to him.  As a joke, he told the lady to "tell him I'll slip him a grand if he gives it back for me".  He later spoke to Mr Adams by telephone.  Mr Adams asked whether he had receipts in relation to the money, and said the police could hold on to it because the matter was still under investigation.  His solicitor subsequently advised him to get the relevant papers together and show them to the police.  Subsequently Mr Adams rang him, told him that, "Taxation have become involved", and said words to the effect of, "You might have had another way that you could go about it."  He then realised that Mr Adams was taking seriously the suggestion that he might accept a bribe for returning the money.  He needed the money, and realised that he had an opportunity to get his money back by bribing Mr Adams.  He therefore proceeded to arrange to meet Mr Adams, to attend the arranged meetings, and to give him the bribe. 

1. There were some minor inconsistencies between the facts as asserted by the Crown and those asserted by defence counsel in her plea in mitigation, but those inconsistencies were insignificant in my view.  The Crown did not dispute the appellant's assertion that the idea of offering a bribe had started out as a joke, and that he had not formed any intention of bribing a police officer prior to Mr Adams surprising him by responding positively to that proposal.  The appellant was therefore sentenced on the basis of that account of events.  This crime would not have been committed if Mr Adams had not responded positively to the bribery proposal.  It was committed only because the appellant derived encouragement from the conduct of Mr Adams.  Counsel for the appellant relied heavily on that fact in submitting that the sentence was excessive.

1. At least for sentencing purposes, there was no suggestion that the money found in the appellant's bedroom had anything to do with drugs.  However the police were entitled to retain it, either pursuant to the Search Warrants Act 1997, s20, or pursuant to a common law power, pending the conclusion of any investigations to which it related. There is no suggestion that, at the time of the bribe, the police were legally obliged to return the money to the appellant.

1. The Court was referred by counsel to a number of cases in which offenders were sentenced for paying or offering bribes.  Information about sentences imposed in other cases is generally useful, but has to be used with caution because no two cases are alike.  Fortunately, counsel were able to refer us to very few bribery cases in which penalties have been imposed by Tasmanian courts.  In terms of seriousness, those cases all involved extremes of one sort or the other.  At the one extreme, there are a couple of cases concerning spontaneous offers of small bribes by motorists to police officers: Good v Wood B30/1990, Crawford J; R v Blair, Cox CJ, 7 September 2001.  At the other extreme, we have the outrageous criminality of a powerful man who, through an underling, offered a bribe to a member of Parliament with a view to preventing a change of government following a State election: R v Rouse 64/1990.  The facts of those cases were very different, and give no real guidance as to the question whether the appellant's sentence was manifestly excessive.

1. Under the Police Service Act 2003, s77(1), offering a bribe to a police officer for the officer to neglect his or her duties is an offence punishable summarily by imprisonment for a term not exceeding two years. However it was obviously the intention of Parliament that cases too serious for prosecution under that section would be the subject of charges under the Criminal Code, and that terms of imprisonment exceeding two years would thus be available for such crimes.  Counsel did not contend otherwise. 

1. Bribery of a police officer is a serious crime because it strikes at the integrity of our system of justice.  In my view bribery warrants consideration being given to a sentence of imprisonment in all but the most trivial of cases.  Further, I think that the bribery of a police officer involved in a drug investigation will often warrant more severe punishment than the bribery of an officer engaged in other duties.  Drug dealers no doubt have both the means and a strong incentive to offer very substantial bribes, in cash and in kind, to police officers.  The very nature of drug investigations is such that police officers involved in them have opportunities to communicate with criminals in private, to warn them of impending searches and investigations, and to interfere with the effectiveness of investigations in other ways.  The salary of a police officer might often be very small in comparison to the turnover or profits of a dealer who is under investigation.  Because of those facts, it is essential for the purpose of general deterrence that the courts impose substantial penalties in cases involving the corruption, or attempts at the corruption, of police officers involved in drug investigations.

1. The scale of an offender's criminality is obviously very significant in a case like this.  This case did not just involve a $2,000 transaction.  It involved an $11,775 transaction.  Although there was no suggestion that the cash found by the police was drug money, there was at least a chance that their investigations in relation to that money had not concluded when the appellant paid the bribe.  In return for the bribe, Mr Adams was purporting to do more than return the money.  He was purporting to abandon any further investigation into its source.  The effect of the bribe, if corruptly accepted, would have been to interfere with the investigation to which the bag of money related.

1. To make matters worse, the appellant has an amazingly large number of prior convictions.  He is 32 years old.  He has been dealt with by Tasmanian courts for offences almost every year since 1987, sometimes for dozens of offences at a time.  Not paying his fines seems to be a well established part of his way of life.  Amongst the wide spectrum of offences committed by him, there have been 21 offences of dishonesty, as the learned sentencing judge observed.  He has been sent to prison for 14 days in 1992 for assault; for 4 months in July 2000 for receiving stolen property, a number of firearms offences, two drugs offences, two breaches of bail, and two driving offences; for 10 weeks in April 2002 on two charges of receiving stolen property, two charges of failing to appear, two charges of breach of bail, one charge of injuring property, and one charge of unlicensed driving; for 6 months in August 2002 for trafficking in a narcotic substance; and for 4 months earlier this year for driving while disqualified and three breaches of bail.  The learned sentencing judge observed that he had not previously had the benefit of parole.  In ordering that he not be eligible for parole for a period of 10 months, his Honour imposed a non-parole period only one month longer than the shortest he could have specified. 

1. There are a number of matters that weighed in the appellant's favour.  He was under financial pressure, and therefore vulnerable to temptation.  He was co-operative with the police.  He pleaded guilty before a magistrate at an early stage.  Very significantly, he derived encouragement to commit this crime from the conduct of Mr Adams.  No police officer was in fact corrupted. 

1. However the fact remains that this was quite a serious crime, for the reasons I have explained.  It was not a spontaneous one.  Mr Adams caused the appellant to think that he was open to bribery at least a week before the bribe was paid.  In all the circumstances, I am not persuaded that the head sentence of 18 months' imprisonment was excessive.  I think that the appellant was somewhat fortunate, given his record, for an order to have been made whereby he will be eligible for parole after serving only 10 months of the sentence.  In my view the sentence, taken as a whole, was not manifestly excessive.  I would dismiss the appeal.