New South Wales Court of Criminal Appeal CITATION : R v PAPADOPOULOS [2000] NSWCCA 477 FILE NUMBER(S) : CCA 60496/00 HEARING DATE(S) : 22/11/2000 JUDGMENT DATE : 22 November 2000 PARTIES : REGINA v Manthos PAPADOPOULOS JUDGMENT OF : Barr J at 1; Carruthers AJ at 16 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0101 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER : COUNSEL : Crown: WG Dawe QC Applicant: IS Lloyd QC SOLICITORS : Crown: SE O'Connor Applicant: Jack Rigg DECISION : Leave to appeal granted; appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60496/00 BARR J CARRUTHERS AJ Wednesday, 22 November 2000 REGINA v Manthos PAPADOPOULOS JUDGMENT 1 BARR J: Manthos Papadopoulos seeks leave to appeal against a sentence imposed upon him in the District Court. The applicant pleaded guilty before Shadbolt DCJ to one count of bribing a police officer. At the same time he asked his Honour to take into account one further offence of the same kind. His Honour took that matter into account and sentenced the applicant to imprisonment for two years with a non-parole period of nine months. The maximum custodial penalty for the offence is seven years' imprisonment. 2 The applicant was the operator of a nightclub at Kings Cross. He had permission to operate his business at his premises but on conditions that spruikers were not permitted beyond the street alignment of the premises and that the premises closed at 3am. Other nightclubs in the district were not so restricted and the applicant saw himself as at a resulting disadvantage. On a number of occasions those conditions were breached and the police took court action. 3 In June 1998 the applicant lodged an appeal in the Land and Environment Court to have the restrictions removed. 4 The applicant was not prepared to wait for the results of that application, however, and made arrangements for a private meeting with a police officer. The meeting was held and the applicant asked for a meeting under the auspices of the police with all nightclub operators in the vicinity of the applicant's nightclub, for representations to be made to the South Sydney Council to have the restrictions on his licence removed and for there to be fewer prosecutions for breaches of the conditions of his licence. Having made those requests he handed the police officer $1,000 in notes. 5 The matter taken into account was a further bribe of $500 of the same police officer several days later. 6 It was submitted that the sentence must be seen as manifestly excessive in view of the plea of guilty, the applicant's clear adult record, his age - twenty-seven years at the time of the offences - his strong family ties and his real prospects of rehabilitation. It was submitted that his Honour erred in failing to consider all possible alternatives to an immediate custodial term of imprisonment. It was submitted that his Honour erred in his assessment of the objective seriousness of the offence and gave undue weight to the need for specific and general deterrence, particularly in holding that the public's proper expectations and the need for general and specific deterrence must outweigh the applicant's good record. 7 It was further submitted that his Honour gave insufficient weight to the following factors: 1. That bribes were paid to a single police officer. 2. That the applicant's reason for paying the bribes was to have a blind eye turned to breaches of restrictions imposed upon him against which he was appealing and was ultimately successful. 3. That the bribes were made at a time when the applicant was feeling a genuine sense of grievance and had commenced lawful proceedings to have the restrictions removed. 4. That the applicant was not seeking to have genuine criminality such as drugs overlooked. 8 It was submitted that his Honour was correct in finding, as stated in the remarks on sentence, that the applicant's criminality was "towards the lower end of any scale constructed for such an offence" and that that finding, combined with statistical sentencing figures, demonstrated that the sentence was manifestly excessive. So the sentence imposed did not approach the lower end of the scale. 9 The words relied on need to be understood in context. During his remarks on sentence his Honour dealt with the submission about the size of the bribe and continued thus: In this case the bribe was hardly massive, and the public benefit it was designed to subvert was the proper prosecution of the prisoner for permitting his spruikers to stand on Darlinghurst Road. But bribery cannot merely be reduced to questions of the magnitude of the bribe and the public benefit set to naught. All bribery, whatever its nature is aimed at subverting public officials. It is all, large or small, an attack on public honesty, that is its true vice and that is what the legislation is designed to strike at, and this is what might be regarded as the third element, common to all bribery. What can be said on behalf of the prisoner, in respect of the crime itself, is that firstly from his point of view there were circumstances which operated unfairly against him and there seems little doubt that he felt a genuine sense of grievance. Secondly he had set in train appropriate legal action to put these matters to rights. The case apparently was not heard until this year when his appeal was upheld and the matter returned to the council to delete the conditions regarding spruikers and times of operation. Thirdly he was not seeking to have genuine criminality, such as drugs, overlooked. He apparently ran a place of entertainment which was otherwise within the law. These matters rather than any overtones of incitement place it towards the lower end of any scale constructed for such an offence. However, I also have to take into consideration that the attempted subversion of police, must always be regarded as a serious matter. Further there is a specific deterrent to be considered. There may not be many who run such places of entertainment, but what happens to the prisoner will come to their attention and they will therefore be warned that bribery is taken seriously and it is not to be regarded by them as an incident of the conduct of such clubs. The public have, since the Police Royal Commission, quite appropriately, heightened expectation that bribery will be treated otherwise than leniently and that both those who accept bribes and those who offer them will be treated equally. Against these matters I have weighed the prisoner's previously clear record, his strong family ties, as evidenced by his sister, and the surrounding circumstances which no doubt, induced in him, a sense of injustice and frustration and I have also taken into account his plea of guilty, although it was at the last minute. The passing of money and the contents of the tapes have never been in dispute. 10 In my opinion his Honour's remarks were appropriate. I do not think that his Honour's words can be read so as to demonstrate that his Honour fell into error. In my opinion only a custodial sentence was appropriate for such a serious bout of criminality and his Honour must have had in mind only the available range of custodial sentences. The maximum penalty was seven years' imprisonment. Two years is towards the lower end of a scale, the maximum of which is seven years. 11 Neither does the sentence appear to me to be disproportionate to the seriousness of the offender's criminality, the essence of which was the desire to corrupt police officers. 12 Judicial Commission statistics show that only one offence of this kind has been dealt with in the higher courts over the last nine years. The accused in that case was sentenced to a minimum or perhaps a fixed term of two years' imprisonment. 13 Counsel for the applicant however relied upon the results of cases dealt with in the Local Court. There were twenty-two such cases over the same period and most were dealt with by way of a fine. Only two were dealt with by prison sentences. 14 In my opinion those statistics do not assist the applicant because those cases are more likely to be the kinds of minor cases suitable to be dealt with in the Local Court, where the maximum sentence is in any event two years' imprisonment. This was not such a case. 15 On the whole, therefore, the statistics put before the Court confirm my impression that the sentence was well within the proper range of his Honour's sentencing discretion. Accordingly, I propose that leave to appeal be granted but that the appeal be dismissed. 16 CARRUTHERS AJ: I agree. 17 BARR J: The orders of the Court are as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.