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District Court 16 December 2016

R v ARAYA

[2016] NSWDC 430

Fraud & dishonestyPublic order & justice offences
CRIMINAL

Citation: R v Araya [2016] NSWDC 430
Court: District Court of New South Wales
Date: 16 December 2016
Judge(s): Judge S Norrish QC

Background

The offender was tried by jury on four counts arising from a police search of his apartment and underground car park in Cabarita in March 2014. The search was conducted by a large contingent of officers ostensibly to serve a Firearms Prohibition Order. The car space allocated to the offender's unit contained two vehicles, behind and inside which police found approximately 2.5 kilograms of methylamphetamine, 104 grams of ephedrine, and 7.4 grams of MDMA.

The jury acquitted the offender on the three drug supply counts but convicted him on count 4: offering a bribe to a police officer. While being transported to Burwood Police Station after his arrest, the offender told the two detectives in the vehicle that he would give them $2 million to "look after youse for the rest of your life" in exchange for what was understood to be a cutting agent rather than the prohibited drugs themselves.

At the time of the offending, the offender was on parole for a prior offence of supply of prohibited drugs. Following the jury verdict in October 2016, his parole was revoked and he was required to serve a balance of one year and three months from 24 October 2016.

  • What was the appropriate sentence for the offence of offering a bribe to a member of the NSW Police Force under s 200(2) of the Police Act 1900?
  • How should the court treat the offender's status as a parolee as an aggravating factor in sentencing?
  • How should the commencement date of any new sentence be fixed to avoid "double-dipping" in circumstances where the offender was also serving a revoked parole period?

Decision

The court addressed the interaction between the new sentence and the revoked parole period. Judge Norrish QC drew on the Court of Criminal Appeal's analysis in R v Callaghan [2006], particularly the judgment of Simpson J, which cautioned against "double-dipping." That concept means a sentencing court should not both treat parole status as an aggravating factor and then set a commencement date so far into the balance of parole as to effectively penalise the offender twice for the same circumstance. To avoid this, the court fixed the commencement date at approximately the halfway point of the balance of parole period: 24 May 2017.

The court identified the offence as serious. The bribe of $2 million was made in direct response to the discovery of a large quantity of drugs and was plainly intended to induce police officers to neglect their duty. The fact that it was made on parole, specifically for a prior drug supply offence, was a significant aggravating feature.

Mitigating factors were limited. The offender had a relevant criminal history and the subjective circumstances available to him were modest. The court considered the maximum penalty of seven years' imprisonment as a yardstick for the worst category of case, consistent with the approach confirmed by the High Court in The Queen v Kilic [2016] HCA 48. Weighing all factors, the court fixed a total sentence of three years' imprisonment with a non-parole period of one year and eight months.

Orders Made

  • The offender was convicted of offering a bribe to a member of the NSW Police Force contrary to s 200(2) of the Police Act 1900.
  • Sentenced to three years' imprisonment, comprising a non-parole period of one year and eight months commencing 24 May 2017 and expiring 23 January 2019.
  • Balance of sentence of one year and four months, expiring 23 May 2020.

Key Takeaways

  • Under s 200(2) of the Police Act 1900, offering a bribe to a police officer carries a maximum of seven years' imprisonment; there is no standard non-parole period for this offence.
  • Where an offender is subject to a revoked parole period at the time of sentencing, the court must fix the commencement date of any new sentence carefully to avoid "double-dipping," that is, treating parole status as an aggravating factor while simultaneously imposing what amounts to a double penalty through the commencement date.
  • The District Court applied the principle from R v Callaghan that the new sentence should commence at approximately the midpoint of the balance of parole, balancing the need to mark the aggravating factor without compounding it through the start date.
  • Committing an offence while on parole for the same category of offending (here, drug supply) remained a weighty aggravating factor even where the offender was acquitted of the drug charges arising from the same incident.
  • The High Court's guidance in The Queen v Kilic [2016] HCA 48 on using the statutory maximum as a yardstick for the worst category of case was applied by the sentencing court in calibrating the appropriate term.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Police Act 1900 (NSW), s 200(2)
- Drug Misuse and Trafficking Act 1995 (NSW), ss 25, 29

Cases
- R v Callaghan [2006] HCA
- R v Duong [1999] NSWCCA 353
- R v Pengallo (1991) 56 A Crim R 441
- R v RCW (No 2) [2014] NSWCCA 190
- R v Taouk (1992) 65 A Crim R 387
- The Queen v Kilic [2016] HCA 48
- Veen (No 2) v The Queen (1988) 164 CLR 465