Wright v Chief Executive Officer of Queensland

[2010] QSC 235

SUPREME COURT OF QUEENSLAND

CITATION:

Wright v Chief Executive Officer of Queensland [2010] QSC 235

PARTIES:

LAWRENCE ERIC WRIGHT
(applicant)

v

CHIEF EXECUTIVE OFFICER OF QUEENSLAND
(respondent)

FILE NO/S:

BS 5567 of 2010

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2010

JUDGE:

Fryberg J

ORDERS:

Fix two years and nine months as the non-parole period in respect of the sentences imposed on the applicant in this Court on 15 March 2006.

CATCHWORDS:

Criminal law – Sentence – Sentencing orders – Non parole period or minimum term – Queensland – Federal offenders – State court sentencing federal offender – Sentence to be served in Queensland prison

Criminal law – Sentence – Post-custodial orders – Parole – Other matters – Relevant factors affecting fixing of non-parole period – Particular cases

Taxes and duties – Customs and excise – Penal provisions – Offences – Penalties – Other offences – Pecuniary penalties – Default periods of imprisonment – Non parole period not fixed at time of sentence – Application for reopening of order

Crimes Act 1914 (Cth), s 19AH

Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125, applied
R v Suarez-Mejia (2002) 131 A Crim R 577; [2002] WASCA 187, cited

COUNSEL:

C W Heaton for the applicant
C K Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Australian Government Solicitor for the respondent

HIS HONOUR:  I have before me an application by Lawrence Eric
Wright for an order that the Court fix a non-parole period
pursuant to s 19AH(1)(b) of the Crimes Act 1914 (Cth).

Mr Wright was convicted of a large number of customs offences
on the 15th of March 2006.  He was fined for those offences
and imprisonment in default of payment was ordered in respect
of them.  The fines were not paid and Mr Wright was taken into
custody on the 2nd of May 2007.

The total period of default imprisonment that he was liable to
serve was 1,657 days, and, to date, he has served three years,
one month and 19 days.

At the same time as Mr Wright was sentenced, I sentenced his
co-offender, Mr Bryce.  At that time neither offender raised
any suggestion that a non-parole period should be imposed.
However, the question has arisen since the time of sentencing
and it has been held that it is necessary as a matter of law
for such a period to be fixed.  I fixed a period of two years
and nine months in the case of Mr Bryce in proceedings
entitled Bryce v Chief Executive Officer of Customs (No 2)
(2010) QSC 125.

At the time of original sentencing, I considered whether there
should be a distinction drawn in the sentencing of Mr Bryce
and Mr Wright.  While I observed there were some minor
differences between their positions, I held on the whole that
no disparity was involved in sentencing them to the same
period and I did so.

The considerations which affect the fixing of a non-parole
period are similar to the considerations which affect the
determination of the original sentencing, although they may
bear somewhat different weight in the former context (see The
Queen v Suarez-Mejia [2002] WASCA 187 at para 48).

In the present case there is a remarkable similarity between
the two offenders.  The circumstances of the offending were
set out in my reasons for judgment in Bryce at paras 2
through to 10.  It is unnecessary to repeat them.  The
evidence originally disclosed more of Mr Wright's involvement
than of Mr Bryce's.  It showed on that evidence Mr Wright had
a greater level of activity in the offending than did Mr
Bryce.  However, I felt that Mr Bryce was happy to adopt his
co-offender's conduct and consequently imposed the same period
of default imprisonment.

I interpolate that, as was said at the time, the imprisonment
was imposed partly by way of punishment, a course which was
subsequently upheld by the Court of Appeal’s special leave to appeal was refused by the High Court of Australia.

Mr Wright now submits that not only are his circumstances of
offending indistinguishable from those of Mr Bryce, but that
his personal circumstances are sufficiently similar as to make
it appropriate to fix the same non-parole period.

Mr Wright was born in 1947 in South Africa and obtained
Australian citizenship in 1986.  He has no criminal history.
He is married.  His wife earns a small income from part-time
employment as a community worker or at least did so at the
time of original sentencing.  There is no material before me
as to her present position or as to any impact which the
sentence has had upon her.

Mr Wright had been involved in community work and charity work
and was well regarded by some who knew him.  He is now 62
years of age, very similar to Mr Bryce.  He has behaved well
in custody and a very favourable Parole Board Assessment
Report has been made in respect of him.

Counsel for the Chief Executive has pointed to only three
matters which, it is submitted, materially differentiate
Mr Wright's position from that of Mr Bryce. 

First, it is submitted that Mr Bryce was in worse health than Mr Wright.  Mr Bryce's health was referred to in his application.  Since his incarceration, a heart operation had been delayed but it was not suggested that that had produced any adverse consequences to him.  Mr Bryce also claimed that his memory had deteriorated but there was no medical evidence to support that.  He alleged also that, for a relatively short period after his incarceration, he had been given incorrect
medication but it was not suggested that any long-term
consequence arose out of that.  He required antidepressants.
That medical history played a very minor part in the fixing of
Mr Bryce's parole release date.  I accept Mr Heaton's
submission that it is an immaterial difference between the two
of them in the present application.

Second, Mr Copley submitted that Mr Wright appeared to have
taken active steps to defeat recovery of his illicit gains.
That submission referred to my finding in the original
proceedings that Mr Wright had transferred his half interest
in his matrimonial home to his wife shortly after the original
proceedings began.  I raised questions at that time as to the
recoverability of any penalty by action against Mr Wright.  In
fact, the Chief Executive has taken no steps to recover any of
the penalties and no evidence has been put before me to update
the position which stood at the time that I imposed sentence.
In those circumstances, I am not satisfied that, on the
evidence, Mr Wright's conduct is sufficient to warrant a
differential treatment of him as regards his non-parole period
particularly when one has regard to the purpose of parole and
the presumed fact that the ill-gotten gains were shared
between the two offenders.

Finally, Mr Copley submitted that it was found on sentence
that the conduct of the defence involved systematic falsehood
particularly on the part of Mr Wright.  That is true.  But
Mr Bryce relied on and adopted Mr Wright's falsehoods.  I do
not think that it provides a sufficient basis for
differentiating between them as regards a non-parole period.

The Parole Board Assessment Report demonstrates clearly that
the purposes of parole can be achieved in relation to Mr
Wright and, in my judgment, his personal circumstances, as
well as the circumstances of the offending, together with
considerations of parity, dictate that he should have the same
non-parole period as did Mr Bryce.

The order of the Court is:  fix two years and nine months as
the non-parole period in respect of the sentences imposed on
the applicant in this Court on 15 March 2006.

Otherwise, the application is dismissed.

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