Citation: Anthony Simon Retsos v Regina [2006] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 28 March 2006
Judge(s): Sully J, Simpson J, Howie J
Background
The appellant was a private businessman who assisted a Rockdale City councillor in soliciting a bribe from a property developer. The developer had lodged a development application and rezoning request with Rockdale City Council, and the appellant approached him seeking $240,000 (later raised to $250,000) to secure councillor support for the application. The developer reported the approach to the council and to the Independent Commission Against Corruption (ICAC).
When called before ICAC, the appellant initially gave false evidence on multiple occasions, denying any involvement in the corrupt solicitation. He was recalled twice and only admitted the truth on his third appearance. He subsequently pleaded guilty to four counts in the District Court: one count of aiding and abetting the corrupt solicitation of a benefit, and three counts of giving false evidence before ICAC. He also asked the court to take into account 34 further instances of knowingly false evidence before ICAC.
At sentence, Judge Finnane QC in the District Court imposed an aggregate of three years' imprisonment to be served by way of periodic detention (meaning the appellant reported to a detention centre on weekends rather than serving full-time custody), together with fines totalling $80,000. The appellant sought leave to appeal against the severity of those penalties.
Legal Issues
- Whether the sentencing judge erred in imposing fines totalling $80,000 in circumstances where the relevant legislation did not permit fines to be imposed alongside terms of imprisonment for those offences
- Whether the sentences breached the parity principle, given the sentences imposed on co-offenders
- Whether the sentencing judge erred by failing to set a non-parole period on the sentences of imprisonment
Decision
On the fines issue, the Court of Criminal Appeal accepted the appellant's argument. The fines totalling $80,000 were impermissibly imposed under the applicable legislation and were quashed in full. The sentencing judge had erred in ordering fines alongside the custodial sentences for these particular offences.
On parity, the Court considered the sentences imposed on the co-offenders but found no basis to interfere with the imprisonment component of the appellant's sentence on that ground.
On the non-parole period, Sully J acknowledged that the sentencing judge's reasoning for declining to set a non-parole period was inadequately expressed and failed to engage clearly with the statutory criteria. This amounted to an error. However, that finding did not automatically warrant intervention: the Court then considered under section 6(3) of the Criminal Appeal Act 1912 (NSW) whether a more lenient sentence was warranted in law, and answered that question with an unqualified no.
Sully J was emphatic that the existing sentence of three years' periodic detention was already, in his view, "extraordinarily lenient" for offences involving corruption of a public official and repeated dishonesty before ICAC. The Court declined to use the mechanism of setting a non-parole period as a device to further reduce the practical effect of the sentence. The imprisonment component therefore remained undisturbed.
Orders Made
- Leave to appeal granted
- Appeal allowed to the extent only of quashing the orders for payment of fines totalling $80,000
Key Takeaways
- The Court of Criminal Appeal confirmed that fines imposed alongside imprisonment for these particular offences were impermissible under the applicable legislation and must be quashed.
- A sentencing judge's failure to articulate adequate reasoning engaging with the statutory criteria for declining to set a non-parole period constitutes a legal error, even if that error does not ultimately result in a different sentence.
- Under section 6(3) of the Criminal Appeal Act 1912 (NSW), identifying a sentencing error does not automatically entitle an appellant to a more lenient outcome: the Court must be satisfied that a different sentence is warranted in law before substituting one.
- Sully J expressed clear and emphatic views that offences involving corrupt conduct by or with public officials, and dishonesty before ICAC, are serious matters deserving condign punishment, not further mitigation.
- In dismissing the bulk of the appeal, the Court declined to set a non-parole period where doing so would have operated merely as a mechanism to soften an already lenient sentence of periodic detention.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 249B(1), 249F(1)
- Independent Commission Against Corruption Act 1988 (NSW), s 87
- Fines Act 1996 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45(1)(a), (b) and (c)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Browne v Reg CCA 62, 14/3/06