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Court of Criminal Appeal 17 September 1999

REGINA v DUONG [1999] NSWCCA 353 revised - 27

[1999] NSWCCA 353

Also reported as 109 A Crim R 60
DrugsFraud & dishonesty
CROWN APPEAL INADEQUACY OF SENTENCE OFFER BRIBE SUPPLY PROHIBITED DRUG POLICE CORRUPTION.

Citation: Regina v Duong [1999] NSWCCA 353
Court: New South Wales Court of Criminal Appeal
Date: 17 September 1999
Judge(s): Wood CJ at CL, Newman J, Foster AJ

Background

The respondent was apprehended in September 1996 near Holbrook carrying approximately 2.6 kilograms of high-purity heroin with an estimated street value of over $8 million. At the time of arrest, he repeatedly offered two arresting officers $100,000 to release him and his companion. Both officers refused.

The respondent was sentenced separately for each offence. In February 1997, Mitchelmore DCJ sentenced him to a minimum term of five years for supplying a large commercial quantity of a prohibited drug. The bribery charge had initially been listed as a Form 1 matter (a related offence to be taken into account at sentencing) but was removed after the respondent indicated he would contest it. He later pleaded guilty to the bribery charge before Williams DCJ, who sentenced him in March 1999.

Williams DCJ imposed a three-year head sentence on the bribery charge but structured it to run concurrently with the drug supply sentence, reasoning that the bribery was part of a general pattern of behaviour at the time of arrest and that no additional imprisonment was warranted. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentence imposed by Williams DCJ for the bribery offence was so inadequate as to be indicative of error or departure from principle, justifying a Crown appeal under s 5D of the Criminal Appeal Act
  • Whether the principle of totality of criminality could justify imposing a wholly concurrent sentence for a serious bribery of police, effectively leaving that offence unpunished
  • What sentencing approach is required when an offender attempts to bribe arresting officers in connection with the very offence for which they are being apprehended

Decision

The Court of Criminal Appeal held unanimously that the sentence imposed by Williams DCJ was manifestly inadequate and reflected a serious error of sentencing principle. By structuring the bribery sentence to run entirely concurrently with the existing drug supply sentence, the sentencing judge left the respondent wholly unpunished for the bribery offence.

Wood CJ at CL emphasised that bribery or offering a bribe to police in the execution of their duties is a most serious offence, one that strikes at the heart of the criminal justice system. Save in the most exceptional circumstances, such an offence calls for a significant term of imprisonment imposed cumulatively, or at least substantially cumulatively, upon the sentence for the primary offence. No exceptional circumstances existed here.

Newman J, delivering the leading judgment, rejected the respondent's submission that the totality principle and the existing drug sentence justified the concurrent approach. His Honour found that while totality is a relevant consideration, it cannot operate to extinguish meaningful punishment for a distinct and serious offence. The bribery was a separate criminal act, not merely incidental conduct forming part of the drug supply offence.

The Court quashed the sentence imposed by Williams DCJ and substituted a head sentence of five years for the bribery offence, structured as a minimum term of three years commencing upon the respondent's eligibility for release under the drug supply sentence, followed by an additional term of two years. This approach gave effect to cumulative punishment while still accounting for the totality principle and the finding of special circumstances made by Mitchelmore DCJ.

Orders Made

  • Crown appeal upheld
  • Sentence imposed by Williams DCJ quashed
  • Substituted sentence: five-year head sentence comprising a minimum term of three years commencing 20 September 2001 and expiring 19 September 2004, followed by an additional term of two years commencing 20 September 2004 and expiring 19 September 2006

Key Takeaways

  • Offering a bribe to police officers during the execution of their duties is a serious offence that strikes at the heart of the criminal justice system, as confirmed by the Court of Criminal Appeal applying the principle stated in R v Pangallo.
  • Save in the most exceptional circumstances, a bribery of police conviction requires a significant term of imprisonment that is cumulative, or substantially cumulative, on the sentence for the primary offence in connection with which the bribe was offered.
  • A wholly concurrent sentence for bribery of police will ordinarily constitute a manifest inadequacy, because it leaves the offender entirely unpunished for a distinct and serious criminal act.
  • The totality principle operates to moderate the overall sentence, but it cannot justify structuring a sentence so that a serious offence carries no real penal consequence whatsoever.
  • Crown appeals under s 5D of the Criminal Appeal Act remain available where a sentence is so manifestly inadequate as to reveal a clear departure from established sentencing principle, even where the departure arises from an over-application of the totality principle rather than a miscalculation of facts.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act (NSW), s 5D
- Police Service Act 1990 (NSW), s 200(2)(a)
- Drug Misuse and Trafficking Act (NSW), s 25(2)

Cases
- Griffith v The Queen (1977) 137 CLR 293
- The Attorney General of South Australia v Tichy (1982) 30 SASR 84
- R v Pangallo (1991) 56 A Crim R 441
- R v Taouk (1992) 65 A Crim R 387
- Ibbs v The Queen (1991) 163 CLR 447