Citation: DPP v Mourched [2010] NSWLC 2
Court: Local Court of New South Wales (Downing Centre)
Date: 23 March 2010
Judge(s): Chief Magistrate G L Henson
Background
The defendant, a company director, was charged with publishing a false statement for financial advantage under s 178BB(1) of the Crimes Act 1900. The charge arose from an Independent Commission Against Corruption (ICAC) investigation into tendering practices at RailCorp. The defendant submitted a tender in 2002 for air conditioning work and maintenance, valued at $955,620, falsely asserting that no subcontractor would be used.
The defendant knew at the time that this assertion was untrue. He also had an existing commercial arrangement with companies beneficially connected to Said Marcos, a member of the RailCorp Tender Evaluation Committee. The arrangement involved directing financial benefits to Marcos in exchange for corrupt influence over the tender process.
To the defendant's credit, when another member of the Marcos family later sought his assistance in fabricating invoices to mislead the ICAC investigation, he refused and did not assist Marcos in those proceedings.
Legal Issues
- What discount from sentence was warranted for the guilty plea, given the timing of that plea and the delay in entering it?
- Which statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 applied?
- What weight should be given to subjective mitigating factors, including the defendant's lack of prior criminal history, age, and cooperation?
- Whether a sentence of imprisonment should be suspended or served by way of home detention.
Decision
Guilty plea discount: The defendant's counsel submitted that the plea was entered at the earliest opportunity, warranting a discount toward the upper end of the 10 to 25 per cent range. The Chief Magistrate rejected this characterisation. The plea was entered approximately eight months after proceedings commenced, after the prosecution had prepared a significant brief of evidence, and after a period of negotiations. Applying the principles in R v Thomson & Houlton and R v Borkowski, the utilitarian value of the plea was assessed at 15 per cent.
Aggravating factors: Four statutory aggravating factors were accepted as established. The conduct was found to constitute planned or organised criminal activity. The arrangement between the defendant and Marcos involved deliberate structuring of the tender process and an agreed mechanism for directing financial kickbacks through associated companies. The Chief Magistrate also found that the offending involved a breach of public trust and was motivated by greed.
Objective seriousness and mitigating factors: The Chief Magistrate assessed the appropriate pre-discount sentence at 20 months imprisonment, arriving at 17 months after applying the 15 per cent discount. The offending was regarded as serious given the public sector context, the significant sum involved, and the planned nature of the corruption. Mitigating factors, including the defendant's good character, lack of prior offending, refusal to assist Marcos in misleading ICAC, and prospects of rehabilitation, were taken into account but did not displace the primacy of general deterrence.
Manner of service: The Chief Magistrate declined to suspend the sentence, finding that suspension would provide little by way of general deterrence. However, given the defendant's age, lack of criminal history, and rehabilitation prospects, the court considered home detention a possible alternative and adjourned for a suitability assessment by the Probation and Parole Service.
Orders Made
- The defendant was convicted of publishing a false statement for financial advantage.
- Sentenced to 15 months imprisonment, comprising a minimum term of 12 months and 23 days, with an additional term of 4 months and 8 days on parole.
- Sentence not suspended.
- Proceedings adjourned to 4 May 2010 for a home detention suitability assessment by the Probation and Parole Service.
- Bail dispensed with pending the adjourned date.
Key Takeaways
- A guilty plea entered approximately eight months after commencement of proceedings, following preparation of a significant prosecution brief and a period of negotiation, does not qualify as a plea at the earliest opportunity; a 15 per cent utilitarian discount was applied rather than a higher figure.
- Under the principles in R v Borkowski, delay in entering a plea for reasons unrelated to ultimate guilt reduces the available discount, even where the offender was aware of their guilt from the outset.
- Corruption in public sector tendering attracted strong weight for general deterrence and denunciation as sentencing considerations, with the Chief Magistrate treating those factors as paramount.
- Suspension of a sentence of imprisonment was found inappropriate where general deterrence is the primary sentencing objective, consistent with the Court of Criminal Appeal's reasoning in R v Taylor.
- A sentencing court in the Local Court is not constrained by its jurisdictional penalty limit when assessing objective seriousness; it considers the full statutory maximum first, then applies the jurisdictional cap only when determining the actual penalty to be imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Criminal Procedure Act 1986 (NSW), s 267 (Table 1)
Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383 (guilty plea guideline judgment)
- R v Borkowski [2009] NSWCCA 102 (restatement of guilty plea principles)
- R v Doan (2000) 50 NSWLR 115 (jurisdictional limit and maximum penalty)
- R v Taylor [2000] NSWCCA 442 (suspension and general deterrence)
- R v Cartwright (1989) 17 NSWLR 243
- R v El Rashid (unrep, 7/4/95, NSWCCA)
- R v Ingrassia 41 NSWLR 447
- R v Mears (1991) 53 A Crim R 141
- R v Mungomery (2004) 151 A Crim R (at [40])
- R v Seiler [2003] QCA 217
- Dodd v R [2010] QCA 31
- Cobiac v Liddy (1969) 119 CLR 257
- Thornloe v Filipowski 52 NSWLR 60