New South Wales Court of Criminal Appeal CITATION: Regina v Potter [2005] NSWCCA 26 HEARING DATE(S): 14/02/2005 JUDGMENT DATE: 18 February 2005 JUDGMENT OF: Bryson JA at 1; Barr J at 2; Hoeben J at 3 DECISION: Leave to appeal against sentence granted. Appeal against sentence dismissed. CATCHWORDS: CRIMINAL LAW - s249B(1)(a) Crimes Act 1900 - corruptly receive benefit - taking into account past criminal conduct with which offender has not been charged - relevance of good character in breach of trust offence - effect of delay in sentencing - balancing mitigating discounts with objective seriousness of offence. Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 JCW (2000) 112 A Crim R 466 Pearce v The Queen (1998) 194 CLR 618 R v Cartwright (1989) 17 NSWLR 243 R v Dibb [2003] NSWCCA 117 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 R v NP [2003] NSWCCA 195 R v Todd (1982) 2 NSWLR 517 Veen (No 2) v The Queen (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629 Rodney Wayne Potter - Applicant PARTIES: Crown - Respondent FILE NUMBER(S): CCA 2004/2398 P Byrne SC - Applicant COUNSEL: GIO Rowling - Respondent Oates & Smith - Applicant SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0883 LOWER COURT JUDICIAL OFFICER: Freeman DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2398 BRYSON J BARR J HOEBEN J Friday, 18 February, 2005 REGINA v Rodney Wayne POTTER JUDGMENT 1 BRYSON JA: I agree with Hoeben J. 2 BARR J: I agree with Hoeben J. 3 HOEBEN J: The applicant, Rodney Wayne Potter, seeks leave to appeal from sentences imposed upon him by his Honour Judge Freeman in the District Court on 17 December 2003. On 26 September 2003 the applicant pleaded guilty at the Downing Centre Local Court to five counts under s249B(1)(a) of the Crimes Act that he did on specified dates between December 1999 and March 2000 corruptly receive a benefit. Three further matters under s249B(1)(a) of the Crimes Act were asked to be taken into account on a Form 1. 4 Each of the offences carried a maximum term of imprisonment of seven years. In relation to counts 1-4 his Honour sentenced the applicant to imprisonment for 2 years to commence on 17 December 2003 and expire on 16 December 2005. The non-parole period was 9 months to commence on 17 December 2003 and expire 16 September 2004. In relation to count 5 his Honour took into account the Form 1 matters and the applicant was sentenced to a term of imprisonment for 2 years and 6 months to commence on 17 September 2004 and expire on 16 March 2007. The non-parole period was 12 months to commence on 17 September 2004 and expire on 16 September 2005. The sentence on count 5 was therefore cumulative on the earlier sentences. The total non-parole period was 1 year and 9 months. Factual background 5 From approximately 1993 until 2000 the applicant was Chief Steward of the Greyhound Racing Control Board (the Board) which became the Greyhound Racing Authority (the Authority). The business of the Board and then the Authority was the control and management of greyhound racing in New South Wales. His duties included ensuring that the greyhound racing industry was run fairly and the supervision of the rules associated with greyhound racing in New South Wales. 6 In order to understand the charges, it is necessary to set out in summary form the corrupt behaviour of the applicant in the period 1993-2000. 7 The Board and its successor the Authority had put in place procedures to prevent the use of performance enhancing drugs. These procedures included the practice of testing dogs which won feature races. The testing was done by taking a urine sample from the dog, securing this in a purpose designed container, sealed with individually numbered aluminium seals, and having the sample conveyed by the stewards to an analytical laboratory. It was there tested for the presence of any prohibited substance. 8 In addition, on each program one or sometimes two races would be randomly selected as those for which the winner would be similarly tested. The random selection of these races was achieved by placing numbered balls in a sack. A volunteer chosen at random would be asked to extract sight unseen a ball the number of which would determine the race on the program of which the winner would be tested. 9 The corrupt conduct of the applicant was designed to subvert these procedures. When forewarned by one of his co-conspirators that a particular dog should if possible not be tested, the applicant would hold in one corner of the sack the numbered ball corresponding to the race in which that dog was entered. Thus the ball would not be available to be withdrawn by the volunteer and the race in which the suspect dog was entered would not be one of those selected for testing. 10 If testing of the dog could not be avoided, eg the dog was the winner of a feature race, then the applicant would destroy the sample taken from that dog and substitute clean urine so that the subsequent testing would not identify the presence of any prohibited substance. Usually the applicant effected this exchange during the delivery of samples to the analytical laboratory. 11 The Independent Commission Against Corruption (ICAC) had instituted a formal investigation in December 1999 in relation to the greyhound racing industry. The conduct of the applicant as chief steward was part of the focus of this investigation. Ultimately the Commission held private and public hearings from 11 April 2000. 12 During the covert investigation phase by the Commission the applicant had been observed to tip out the urine sample of the dog "Injection", while purportedly transferring it for testing on 14 December 1999. This was the offence covered by count 1. 13 The second count referred to a similar activity also observed by ICAC investigators. This involved a sample taken from a dog "Tiani Drive" and it occurred on 10 January 2000. 14 The third count was based on a legally intercepted telephone conversation between the applicant and a greyhound trainer. This occurred on 30 March 2000 and in the conversation the applicant acquiesced in the trainer's request that the dog did not "draw them out". This referred to the applicant ensuring that the race was not one of those selected for testing. 15 The fourth count involved the same trainer. A dog "Reckless Abandon" won at Wentworth Park in record equalling time. The applicant although on holidays on 18 March 2000, the day on which the dog raced, attempted to exchange the sample taken from the dog with a clean sample when he returned to work on 21 March 2000. In fact the true sample from that dog had already been removed by ICAC investigators. The true sample when tested was positive for two prohibited substances. 16 The fifth count involved the applicant's relationship with a punter, who also owned a couple of dogs. In early March 2000 legally intercepted telephone calls indicated that the punter was enlisting the aid of the applicant to "cover up" for dogs on which he was willing to bet because of their likely drug-affected performances. The items on the Form 1 referred to similar exchanges of clean urine with test samples taken from drug-affected dogs. 17 By way of further background the applicant had first been employed as a steward in 1981. He progressed to Deputy Chief Steward in about 1991, served in that position for two years and was appointed Chief Steward in September 1993. 18 It is not clear when the applicant first commenced acting corruptly, but it was either in 1992 or 1993. Thereafter he continued in that behaviour until he was interviewed by ICAC investigators on 30 March 2000. The applicant estimated that urine substitutions occurred at the rate of six-ten times per year. 19 Over the years that this conduct took place, the applicant was paid by trainers and others either a fixed amount per race or ten percent of prize money won by the affected dogs. When interviewed by the ICAC investigators, the applicant was receiving $1,000 per month from the trainer referred to in counts 3 and 4 and $400 per month from another trainer. He had received a few thousand dollars from the punter referred to in count 5. The motivation for the corrupt behaviour was financial gain and it seems clear that the applicant had received substantial sums of money between 1992/1993 and March 2000. 20 When the applicant was interviewed by ICAC investigators, he was completely candid with them and co-operated fully. He also actively assisted in the ICAC investigation. This assistance included wearing a listening device and recording conversations with other persons with whom he had engaged in corrupt activities. Those conversations apparently provided valuable evidence in support of the ICAC investigation. He indicated his willingness to give evidence in relation to the prosecution of others brought about by the ICAC investigation. 21 His Honour accepted that the applicant entered his plea of guilty at the earliest opportunity and his Honour allowed a twenty five percent discount. In relation to the applicant's co-operation and assistance to ICAC and the Authority, his Honour found that he was entitled to a further fifty percent discount. 22 Although the applicant was interviewed by the ICAC investigators on 30 March 2000 he was not charged with any offence until September 2003. During that time he sought to earn a living as a self-employed gardener. As of the date when the sentences were handed down the applicant was earning approximately $500 per week from that business. 23 His Honour found that special circumstances did exist in relation to the applicant. He identified them as the difficulties which the applicant would confront in prison as a result of the assistance which he provided, the fact that this was his first time in prison and his very good prospects of rehabilitation. His Honour also identified a need to ensure by appropriate supervision that upon his release from prison, the applicant's difficult financial circumstances would not lead him again into crime. Appeal Ground 1 – The learned sentencing judge erred in his assessment of the criminality of the applicant by taking into account conduct not charged 24 The point made in this ground is that the actual conduct with which the applicant was charged covered the period December 1999 - March 2000. On four occasions during his remarks on sentence (P.6.1, 7.4, 7.7 and 8.1) his Honour stressed the period of seven-eight years over which the applicant had been engaging in similar corrupt conduct. Counsel for the applicant made specific reference to the following: "All told, the prisoner enriched himself by a substantial sum over a very long period. …The crimes are very serious indeed and the charges brought are but representative of the prisoner's criminality." (ROS p7) 25 It was common ground that the five charges were not presented to the court as "representative counts". There was as such no admission that prior conduct was to be included as conduct charged representatively. (JCW (2000) 112 A Crim R 466 at [10] and [67]). 26 This submission did not resile from the clear admissions made by the applicant in his record of interview with ICAC, the effect of which has been summarised above. It was accepted that the applicant's lengthy history of corrupt conduct could be taken into account when assessing the objective seriousness of the offences with which the applicant had been charged. It could also be used to demonstrate that the character and antecedents of the applicant did not show that the offences with which he had been charged were the first criminal conduct in which he had engaged (Weininger v The Queen (2003) 212 CLR 629 at [29]). The applicant's complaint was that the extensive corrupt conduct, which had occurred before the offences with which the applicant had been charged, had been used by his Honour as a significant aggravating factor. This approach underlay the whole of his Honour's judgment and accordingly revealed error. 27 It is trite law that an offender should only be sentenced for crimes with which that offender has been charged. It is also clear that his Honour's reference to the charges being representative of the applicant's criminality was wrong in point of fact. What is not clear is whether his Honour misused the applicant's criminal history in the way submitted. Apart from his Honour's unfortunate use of the phrase "representative of the prisoner's criminality", it is otherwise clear from the remarks on sentence that all his Honour was doing was stressing the objective seriousness of the breach of trust which underlay the offences with which the applicant had been charged. 28 His Honour's use of the word "representative" occurred in the following context: "All told the prisoner enriched himself by a substantial sum over a very long period. In doing so he was guilty of the gravest breach of trust; not just the trust of his employer, but that of all of the innocent owners trainers and punters, who were involved in the greyhound racing industry. His corruption put at risk public confidence in that whole industry. Some have been unjustly enriched, others, most others, have been cheated. The crimes are very serious indeed and the charges brought are but representative of the prisoner's criminality." (ROS 7.4) 29 Later his Honour said: "What the prisoner stands to lose is substantial. What he has done since being exposed is commendable. What he did, however, for the best part of a decade, was engage in a premeditated, persistent, prolonged corruption, involving the most egregious breach of trust. The man in charge of ensuring that an entire industry was run fairly and squarely made himself a vehicle whereby corruption of that whole system was made possible. Such a course of conduct cannot attract less than a substantial sentence." (ROS 12.1) 30 As was properly conceded on behalf of the applicant the five matters with which he was charged and the three Form 1 matters cannot be looked at in isolation. To do so would distort the true nature of the criminality involved. They were but individual instances of a course of corrupt conduct which had lasted for seven-eight years. In order to assess the objective seriousness of that conduct, regard had to be had by the sentencing judge to the historical context in which the offences occurred. 31 It seems to me that that is all that his Honour did. His Honour was wrong to say that "the charges brought are but representative of the prisoner's criminality". His Honour, however, did not use the history of the applicant's criminality in that way. He used it to demonstrate the seriousness of the offences with which the applicant had been charged. Despite the unfortunate use of the word "representative", his Honour's use of that historical material was permissible. (Veen (No 2) v The Queen (1988) 164 CLR 465 at 477.) This ground of appeal fails. Ground 2 – The learned sentencing judge erred in his approach to his assessment of the good character of the applicant before and since the commission of the offences and the demonstrated rehabilitation of the applicant 32 The applicant's submission under this ground was twofold. There was a complaint that the applicant's prior conduct had been wrongfully taken into account when assessing good character before the charges were brought and that his Honour had failed to give adequate weight to the applicant's efforts to rehabilitate himself during the three and a half years between when his corrupt conduct had been discovered and when he had been sentenced. 33 What his Honour said in relation to the applicant's character before the discovery of corrupt conduct is fully consistent with the guidance provided by the High Court in Weininger v The Queen. The absence of a criminal record meant only that his corrupt conduct had not been discovered. His Honour also had regard to the applicant's efforts to rehabilitate himself and took this into account when assessing special circumstances. The extent to which his Honour took those rehabilitation efforts into account when assessing sentence was a matter of discretion for his Honour and no error has been revealed in his Honour's exercise of that discretion. This ground of appeal fails. Ground 3 – The learned sentencing judge erred in failing to take into account adequately or at all delay on the part of the authorities in charging the applicant 34 The submission made by the applicant is not that his Honour failed to have regard to the question of delay but that his Honour failed to give that consideration adequate weight. There was no dispute that the delay had been considerable, ie in excess of three years. As his Honour noted during that time the applicant, through no fault of his own, was under considerable strain waiting for the inevitable charges to be brought. Reliance was placed upon the well-known passage in R v Todd (1982) 2 NSWLR 517 – p 519f-520A. During that period the applicant had taken substantial steps to rehabilitate himself but the beneficial results of those efforts had been lost as a result of his imprisonment. The applicant submitted that this was a major mitigating factor to which his Honour had too little regard. 35 As has been pointed out by this Court on many occasions: "The value to be attributed to a particular feature of a case cannot be assessed without having in mind all the other features in the case, favourable and unfavourable. Sometimes a preponderance of favourable features which result in any one of them receiving less weight than it might have received in the absence of the other favourable features. An example is the credit that must be given to an offender who has provided or undertaken to provide assistance to the authorities. The legislation provides, as the common law before it provided, that there is a limit to the value that may be given to such a combination of features. The resulting penalty may not be disproportionate to the nature and circumstances of the offence: Crimes (Sentencing Procedure) Act s 23(3); R v Cartwright (1989) 17 NSWLR 243. In a similar way different features which each entitle an offender to a less severe sentence may have overlapping effects, with the result that the appropriate total allowance will be less than the sum of the parts: R v Gallagher (1991) 23 NSWLR 220 per Gleeson CJ at 230-234." ( R v Dibb [2003] NSWCCA 117 (Barr J)). 36 In this case significant discounts were allowed by his Honour in relation to the early plea of guilty by the applicant and his assistance to ICAC and the Authority. His Honour also found special circumstances. In his remarks on sentence his Honour made specific reference to the detrimental effect of delay, particularly in relation to the applicant's efforts to rehabilitate himself. His Honour clearly had regard to that consideration. It was a mitigating matter which overlapped with other mitigating matters, which his Honour had to balance against the overriding requirement to make sure that the sentence finally pronounced was not disproportionate to the seriousness of the offence. 37 No error has been disclosed in his Honour's approach to this consideration, nor in his overall exercise of discretion when having regard to all mitigating features affecting the applicant's case. This ground of appeal fails. Ground of Appeal 5 – Lesser sentences were warranted in law 38 The applicant's submission under this ground is a quasi-mathematical one. If one applied a discount of twenty five percent for an early plea of guilty and fifty percent for the assistance provided by the applicant, the resulting sentence of 3 years and 3 months with a non-parole period of 1 year and 9 months meant that his Honour must have used as his starting point a sentence of 8 years. This is in excess of the maximum sentence imposed for this offence – 7 years. If the correct starting sentence of 7 years is used and if one applied the discounts found by his Honour, the resulting sentence, it is submitted, would be less than that awarded. 39 Reliance was placed upon the following passage in his Honour's remarks on sentence: "Indeed, applying the discounts, to which I already referred, produced a result a few months less than the sentence I consider in all the circumstances to be appropriate." (ROS 12.3) 40 With due respect to the careful submissions of senior counsel for the applicant, such an approach is fundamentally flawed. It fails to have regard to Pearce v The Queen (1998) 194 CLR 618 at [45]. The High Court there required sentencing judges to "fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality". 41 In this case it was open to his Honour to fix sentences of 2 years with a non-parole period of 9 months for counts 1-4 and a separate sentence of 2 years and 6 months with a non-parole period of 12 months in respect of count 5, which also had regard to the three Form 1 matters. After then having regard to considerations of totality, in particular the objective seriousness of the offences, his Honour was entitled, as he did, to make the sentence in relation to count 5 cumulative on the sentences in respect of counts 1-4. 42 This is what his Honour did, having regard to the need for general deterrence because of the breaches of trust inherent in these offences: "Others faced with similar temptations must be fortified by knowing that the penalty for committing a breach of trust is bound to be a sentence of substantial duration (ROS 11.9) … Regretfully, I have concluded that the inbuilt leniency in such a sentence would not convey adequately the message of general deterrence, which in a case such as this must be applied by rigour." (ROS 12.9). 43 Even if one applied the mathematical approach relied upon by the applicant, error is not revealed. As a start point one needs to look at the sentence imposed in respect of count 5. The head sentence of 2 years and 6 months took account of the substantial discounts found by his Honour, particularly if one had regard to the way in which those discounts should be applied, ie not by adding them together but by applying them sequentially. (R v NP [2003] NSWCCA 195 at [30] and [47]). His Honour's starting point was therefore not in excess of the maximum 7 years provided for that offence. 44 The approach to sentencing in ground of appeal five implicitly involved a mechanistic approach, which not only failed to have regard to the objective seriousness of offences and the principle of totality, but also failed to have regard to the provisions of s23(3) of the Crimes (Sentencing Procedure) Act 1999. In that regard I respectfully adopt the comments of Simpson J in R v NP: "[49] The result of the rigorous application of what have become relatively standardised discounts (especially where a considerable discount for a plea of guilty is added to an even more considerable discount for significant assistance) can, on occasion, cause a sharp intake of breath, but that is the result of the application of correct and established legal principle. The results can appear to be disproportionate to the offence(s). Sentencing judges (as in this case) have to balance the need to impose proper punishment with the need to recognise the benefits to the criminal justice system gained by pleas of guilty and assistance to authorities. The correct balance is not always easy to achieve. [50] This is where s23(3) of the Crimes (Sentencing Procedure) Act 1999 demands consideration, and, sometimes, application. By that subsection, a sentencing judge allowing a discount for assistance to authorities, is required, notwithstanding, to ensure that the resulting sentence is not unreasonably disproportionate to the nature and circumstances of the offence(s). … [54] In my opinion, the extent of discounts allowed to offenders, particularly those allowed by reason of assistance to authorities, not infrequently results in a disproportionately low sentence. Section 23(3) is designed to redress any imbalance that may result. It is by reason of s23(3) that I agree with the orders proposed by Hodgson JA, notwithstanding that the rigorous application of the conclusions I have reached with respect both to the starting point of the sentences and the discount for assistance, would otherwise result in a greater reduction of the overall sentences." 45 No error has been demonstrated in his Honour's application of the discounts which he assessed in respect of the applicant's early plea of guilty and assistance to ICAC and the Authority. This ground of appeal fails. Conclusion 46 As his Honour appreciated, the applicant's culpability for the offences with which he was charged was at the top of the range for this type of offence. The very person entrusted with the protection of the greyhound industry in New South Wales was subverting its integrity for financial gain. That situation had continued for seven-eight years. Many innocent persons were adversely affected by the applicant's conduct – owners, trainers, punters and those who depended upon them. Even if error had been revealed in his Honour's approach to the sentencing of the applicant, I am of the opinion that the sentences imposed were not excessive and would not require the intervention of this Court. 47 If anything, the sentences of 2 years with a non-parole period of 9 months for counts 1-4 were unduly favourable to the applicant. It was appropriate to make the sentence in relation to count 5 cumulative on the other sentences. Having regard to the objective seriousness of the offences, and the principle of totality, the ultimate result of the sentences imposed – 3 years and 3 months with a non-parole period of 1 year and 9 months – does not reveal error. 48 I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed. ********** 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.