District Court New South Wales Medium Neutral Citation: R v ARAYA [2016] NSWDC 430 Hearing dates: 9 December 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Convicted: Sentenced to a term of imprisonment of 3 years with a non-parole period of 1 year 8 months. Catchwords: Criminal – Sentence, offer a bribe to a member of the NSW Police Force, on parole. Legislation Cited: Crimes (Sentencing and Procedure) Act 1999 Police Act 1900 Cases Cited: 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 Category: Sentence Parties: Director of Public Prosecutions Gustavo Henry Araya - Offender Representation: Counsel: Solicitors: Director of Public Prosecutions Ms Heathcote, Lawyer – Offender File Number(s): 2014/82759 sentence 1. HIS HONOUR: Gustavo Henry Araya was arraigned before me and tried by jury in relation to four counts on an indictment. Count 1 alleged that he on 18 March 2014 at Cabarita supplied a prohibited drug, namely methylamphetamine, in an amount that was not less than a large commercial quantity applicable to that prohibited drug. Count 2 was an allegation that he on the same date at the same place supplied a prohibited drug, namely ephedrine. Count 3 was an allegation that he on 18 March 2014 at Cabarita supplied a prohibited drug, namely 3,4-methylenedioxymethamphetamine, and count 4 was an allegation that he on 18 March 2014 at Cabarita in the State of New South Wales offered a bribe, namely $2 million, to Senior Constable Michael Cook, a member of the New South Wales Police Force, for the purpose of inducing him to neglect his duty. 2. The prisoner was found not guilty of counts 1 to 3, but guilty of count 4 and is today appearing for sentence in relation to that count. The offence for which he was found guilty by a jury verdict is an offence contrary to s 200(2) of the Police Act 1900 and it carries a maximum penalty of seven years' imprisonment and/or a fine of $22,000 I am informed by the Crown. I am not aware of how that is expressed in penalty units. There is no standard non parole period. 3. In relation to this matter I am informed that the prisoner had 50 days of pre sentence custody before being released on bail. He was arrested on 19 March 2014 and was in custody for a few days until 21 March, released and then, as I understood the chronology that was revealed during the course of the trial, was charged in relation to some of the matters for which he was subsequently tried after drug analysis certificates were obtained later in 2014 and went into custody when I remanded him in custody after the verdict of the jury in October of this year. 4. In respect of that aspect of the matter whilst there has been 50 days in custody in relation to this matter, the large bulk of that custody has been subsumed into or by the revocation of the parole to which he was subject at the time of the offending. I am informed at the last occasion the matter was before me, which I believe was last Friday although I do not have a transcript of the proceedings, that since I remanded the prisoner in custody his parole has been revoked and he is required to serve a term of one year three months by way of balance of parole from 24 October 2016. As I understand the matter that balance of parole theoretically expires on 23 January 2018. 5. On the issue of the relevance of the requirement of the prisoner to serve the balance of parole, I am mindful of the fact that of course a person who has his or her parole revoked and is ordered to serve the balance of parole can be reviewed during that period of time and released again to parole by direction of the Parole Authority. That release to parole of course would be subject to any intervening court orders, which is the situation here. 6. In fixing a commencement date for the sentence I propose to impose, which I have already indicated to the prisoner, I have determined that I should commence the sentence I impose from 24 May 2017. I have fixed upon that date in the context of the judgment of the Court of Criminal Appeal from 2006 of Callaghan, particularly the judgment of Simpson J, who in that judgment reviewed a number of authorities that considered the appropriate approach for sentencing an offender, subject to a balance of parole in the context of the provisions of the Crimes (Sentencing Procedure) Act 1999. 7. Her Honour pointed out that where an offender is to be sentenced for an offence or offences that involve consideration of the aggravating factor of offences committed whilst subject to "conditional liberty", the Court must be very careful in fixing a commencement date not to - to use her expression - "double dip". That is acknowledge the aggravating factor but then fix the commencement of the sentence so far into what is left of the balance of parole as to impose upon the offender a form of "double penalty". Hence I have determined that the commencement of the sentence that I propose to impose will be halfway through approximately the balance of parole otherwise required to be served by the prisoner. 8. In relation to the facts of the matter, shortly stated, police attended upon the premises of the prisoner in March 2014 which was an apartment at 18 Edgewood Crescent, Cabarita. The prisoner was the lessee of unit number 71, which was shown in a video recording of searches conducted of the premises. That particular unit or apartment had a designated parking area underground which had provision for two car parking spaces. The prisoner, when police attended at his residence, was in company with a number of people who are not significant for the purposes of this sentencing exercise. Some, as I understand it, were relatives of him. 9. The police ostensibly attended upon his premises to serve a Firearms Prohibition Order. Police were informed at the time of the issue of the order that the prisoner was living somewhere in the Eastern Suburbs, but in fact by the time the order was served he was then living in Cabarita. Exercising powers available to them under the relevant legislation relating to the service of Firearms Prohibition Orders they conducted a search. This was a well organised affair and it would seem, although it is not significant for my purposes, that police had come to the premises in large numbers in anticipation of finding items perhaps other than firearms. Of course, under the Act, they are entitled to ensure that the prisoner was not in possession of firearms at the time of the search. The order had been issued because the prisoner was on parole. 10. The search of the apartment involved some discussions with the prisoner. Part of those discussions were excluded by me and conceded by the Crown to be admissible. Those discussions that were either before the jury or not before the jury ultimately led the police to the underground car park, and within the car space allocated to the prisoner's unit there was found two motor vehicles. Inside one motor vehicle and behind that motor vehicle were found a number of prohibited drugs. 11. The prohibited drugs, the subject of count 1 in the indictment, that is the methamphetamine, weighed 2.5 kilograms approximately. It was a very substantial haul of prohibited drugs. With regard to the ephedrine there was approximately 104 grams of that prohibited drug and there was 7.4 grams of MDMA which is greater than the trafficable quantity. The prisoner was prosecuted in relation to that matter on the basis of the deeming provisions in ss 25 and 29 Drug Misuse and Trafficking Act 1995. 12. The accused was present during the searches in the apartment and then in the car space. I have watched the video of the search of the car space. At the finding of the respective drugs that were found and then brought to his attention, although not all of them were at that point, it is clear on the evidence of the accused's reaction that even if he was not in possession of those drugs, as is consistent with the finding of the jury in relation to counts 1 to 3, he certainly was well aware of the character of the drugs that were shown to him, particularly the drugs found inside the car, and the implications for him of the finding of the drugs in a motor vehicle parked in a car space that was part of the property that he had leased. The prisoner, as I said, was on parole at that relevant time. In fact the prisoner was on parole in respect of an offence of supply of prohibited drugs. 13. When the relevant prohibited drugs were found and shown to him, the prisoner was arrested. This was recorded in the video recording that was admitted into evidence and then was transported by two police officers to Burwood Police Station. Those two police officers were Detectives Cook and Eisenhuth, who were the primary witnesses in the Crown case. 14. When the prisoner was being conveyed to Burwood Police Station he was sitting in the back seat with one of the officers. As I understand it the other officer was driving. The prisoner said in the course of travel to Burwood Police Station, "I won't say anything on record, I'll just say 'no comment'. I'm so fucked." This was not an admission of guilt, it must be fairly said, but it certainly reflects that I have observed earlier that the prisoner appreciated from the proceeds of the search that he was in a very difficult position. 15. Mr Eisenhuth said, "Wait until we get back to the police station. We will book you in and speak to you about it back there." The prisoner in response said, "Boys, we can swap it with MSM. I'm serious. I'll give you $2 million and look after youse for the rest of your life." "MSM" I point out was understood by the police officers to be a cutting agent that is used to mix with amphetamine type drugs. But is not itself a prohibited drug. 16. Constable Cook said to him words to the effect, "We are not corrupt, we can't do that." The prisoner then said, "If I get done for this I'll just kill myself. I know what this means, I'm serious, I'll do 20 years. I was helping my brother out because he got a $35,000 debt." The last part of what the prisoner said could have been construed as an admission at least of his knowledge of the presence of the drugs. But may not have necessarily been an admission of guilt of the particular charges brought by the Crown. 17. The prisoner was taken to the police station and participated in an electronic interview. During the course of that interview, after questions in respect of prohibited drugs or items that were believed to be prohibited drugs being found in the search, the prisoner was asked if he agreed that he had offered the police "a large amount of money to make this matter go away." The prisoner said in answer to that quote, "Like I said I was very drunk. I drank five bottles of scotch and I had just finished. I just polished off two bottles of wine this morning." He said he had been drinking a lot the "last five days", that he had not been "normal". All he could think about or what he did not want to think about was a "woman that cheated on me". 18. He was further questioned about the conversation in the car. He prevaricated. Although it must be said he did not deny what had been put by the police. The prisoner said, "I did say something to - I don't know what I said at the time to that effect, and I agree that he said 'We don't do that sort of thing' and something to that effect." When asked if he had anything else to say about the matter, he said: "I did say something but I didn't say - I was very distraught, I was very drunk. I didn't say it in a sense - like, you know, I was just talkin' and he - he just - it was hypothetical and he said it to me like" 1. and there were some missing words, "that's the way I felt". He was then further asked at question 160, "Did you have any intentions of?" and his answer was "No". 2. The issue litigated before the jury was that the Crown had not proved beyond reasonable doubt that he had the intention to offer a bribe, amongst other factual contextual matters or relevant matters, including the size of the offer in circumstances where there was no evidence the prisoner could afford to give the police $2 million. 3. I watched the video of the search of the premises where the prisoner was first spoken to police and the video of him in the underground car park. The two police officers, Cook and Eisenhuth, conceded that the prisoner was affected to some degree, but he certainly was not on my observation and their evidence "well-affected" and not "drunk". I accept that he was to some extent disinhibited in his manner and in his speech during the period of time that he was in the presence of police before he went to the Burwood Police Station. But he was alert to what was going on during the search, as I have pointed out, because he fully realised the impact or implication of what had been found. 4. The matter advocated on his behalf at the trial effectively was, had the Crown proved beyond reasonable doubt that he was serious in what he said? The jury found against him in that regard. 5. With regard to the other evidence available to me, I have a pre sentence report prepared by Community Corrections. The prisoner being on parole it was important that I should have that document. That document sets out a history of supervision going back to the mid 1990s, including the parole supervision to which I have referred. It is important to put the Community Corrections Service record in a context of the prisoner's criminal history. 6. The prisoner was born on 24 March 1973. He has a number of convictions in New South Wales, in the Children's Court which I will ignore, in the Local Court for dishonesty in 1993, in the Sydney District Court in August 1997 for possession of a loaded firearm in a public place, after an appeal from the Local Court. He has some driving convictions of no significance. He has a conviction for obtain financial advantage by deception, for which he was placed on a community service order in 2001, a matter the subject of comment by Community Corrections. He was further convicted in 2004 in the Sydney District Court of obtaining property or money by deception. 7. He was imprisoned for 18 months commencing in August 2005 with a non parole period of 12 months for one such offence and received an identical term of imprisonment for another offence of the same character. In respect of two offences for obtain money by deception committed at about the same time, or slightly before those offences that I mentioned, he was on the same occasion sentenced to 18 months and two years' imprisonment with various non parole periods that were slightly accumulative upon the sentence imposed by the District Court. An appeal to the Court of Criminal Appeal was unsuccessful. 8. Most significantly on 19 April 2011 he was convicted of supplying a large commercial quantity of a prohibited drug. The remarks on sentence have not been provided to me. I do not understand why not. The criminal record refers to it as being "knowingly concerned" in the commission of that offence or an attempt to commit that offence. He was sentenced to seven years three months imprisonment commencing in March 2008. He obviously had been in custody some time before being sentenced. A non parole period of four years three months was imposed, and hence, as I pointed out, the offence with which I am concerned whilst subject to that parole period. 9. Running somewhat parallel with the matters I have outlined is a separate criminal history from the ACT. The last recorded conviction in the ACT is in 2000, but before that there are a number of convictions for driving with a prescribed concentration of alcohol, theft, assault police, a conviction or a finding of guilt in relation to an offence of armed robbery dealt with in the ACT Supreme Court in 1989, for which the prisoner was committed to an institution for 18 months. He must have been a juvenile at the time of that offending. He was "convicted" in 2000, the last of the convictions, of possessing a drug of dependence. He failed to appear and a warrant was issued in relation to possessing a drug of dependence and sale of supply of drugs of dependence. What has happened to those matters I do not know. The prisoner's behaviour in custody since he went back into custody since 24 October 2016 has been unremarkable. He is not a problem or a difficulty for Corrective Services. 10. The prisoner has had a considerably disrupted upbringing. Without going into the detail of it, as I understand it he was born in Argentina. He came with his parents to Australia in 1974 presumably when he was about one year of age and is an Australian citizen, but his mother and father separated in acrimonious circumstances. His father took the prisoner back to Argentina and his mother had to struggle to have her son return to Australia. The Community Corrections Service reports upon the prisoner having a "supportive relationship for four years" and this is confirmed in a reference written by the prisoner's current partner. I am, I must confess in that context, having some difficulty understanding why then in 2014 the prisoner claimed that he had been on some form of bender in respect of a person who had "cheated on him", although it may have been a reference to a business matter rather than a matter of romance. 11. The prisoner's education is rudimentary and largely disrupted by his time in Argentina and return to Australia. He undertook a tiling apprenticeship. He has been involved in various businesses, including a car rental business in the ACT and owning a coffee shop after his release on parole, which he had to abandon or forego because of his bail conditions for the current offending. 12. The prisoner in terms of his substance abuse has some difficulties with alcohol, although not significant difficulties. He appears to be a regular drinker of alcohol. Surprisingly or not surprisingly, bearing in mind his background of involvement in the drug trade, he does not use illicit drugs. He claimed to the Community Corrections officer that he had made the offer to bribe the police officer "in an attempt to make the harassment go away". 13. He states that he had "no means to support his bribery offer" and blamed his language on the alcohol that he drank. Clearly even in the context of the matters arising in the trial that are consistent with the verdicts of not guilty in relation to drug supply matters, the Community Corrections Service notes both alcohol and personal matters as requiring attention and a need for the prisoner to address his associates. 14. In fact the Crown has produced a 'Revocation Report' that was prepared for the benefit of the Parole Authority. Whilst the prisoner's response to parole had been satisfactory, there was a need for him to more closely address the "non association conditions". That is to be more careful with his associates because it is quite clear on the evidence available to me, accepting that the prisoner did not supply the prohibited drugs, that the prohibited drugs that were found by police belonged to people with whom the prisoner had a personal association and had access to the prisoner's residence. 15. The Community Corrections Service regarded the prisoner as both amicable and reliable in his contact with Community Corrections. He has an encouraging "good work ethic", but he may benefit from counselling to develop more appropriate coping strategies with challenges that arise for him. 16. The prisoner did not give evidence on sentence. He produced three references, one from a prospective employer confirming the availability of employment, one from a person who would appear to be a friend of some standing, had known him since he was a teenager and has had some contact with him through some church activities many years ago, then approximately three years ago when this former friend or current friend met the prisoner at a "tourist park" on the central coast. He spoke of the regard Mr Araya is held in by members within his community and made the claim the prisoner had "appeared to distance himself" from "bad influences". The truth of the matter is if he had distanced himself from "bad influences" he would not be in current predicament, if in fact that is the true picture. 17. His current partner has prepared a reference. She speaks of her affection for him. She speaks of his positive qualities. The regard again held of him by members within his community. She speaks of him being an outgoing person but having difficulties struggling to adapt to a "constructive lifestyle", particularly with legal obligations and other matters whilst on parole. I have borne in mind the requirements of his bail have placed some restriction upon his liberty. 18. He has also had to undertake parole appointments, but it must be said, as I have said to his counsel, that even allowing for the fact he was ultimately acquitted of what could be regarded as the more serious charges, it is something of a surprise that the prisoner obtained bail in the context of the allegations against him whilst being on parole for the supply of drugs. Of course every suspect has the presumption of innocence, but the Bail Act does not operate respecting that presumption on occasions. 19. His partner also reported to the Court, as had Community Corrections, the prisoner had expressed remorse for his conduct and wished to address the background to his offending behaviour. I noted, as I said earlier, the Community Corrections officer in taking the prisoner's explanation believed the prisoner sought to "minimise" the character of the offending. 20. I had oral submissions from learned counsel for the prisoner who conducted an excellent case for his client at the trial. He pointed to what he submitted to be the spontaneity of the offer of the bribe. It was an offer without "premeditation" or "planning" and with that submission I agree. He submitted that what the prisoner said was driven out of "panic" and he may well have been panicking as he drove to the Burwood Police Station, given what he understood the police at that point had found. 21. Counsel also pointed to the prisoner being personally upset because of some difficulties in his private life, about which he spoke to police, and I am prepared to accept that when the police arrived at his apartment it was at a bad time for the prisoner personally. There was evidence available to me that people were at the apartment to speak to the prisoner for reasons relating to his upset at that time. 22. He also pointed to the fact the prisoner had consumed some alcohol which had affected him. I have already dealt with that aspect. He submitted that it was a foolish action on the part of the prisoner. Certainly with the wisdom of hindsight it was foolish given the fact that he was ultimately acquitted of the more serious charges. I was taken to the explanations the prisoner gave to investigating police. 23. He made the submission that the prisoner could have said any amount to the police in the context of what he was saying. But it is to be borne in mind, given the character of the statement he made to the police, that he used the words to the police "I am serious". Of course there is no evidence that the prisoner had a capacity to actually provide $2 million, I will deal with an aspect of the objective seriousness of the offending that is connected to that matter when I deal with the Crown's submissions. 24. It was submitted on behalf of the prisoner that the offending was of the lowest level of objective seriousness of offending of this type, a submission I cannot accept. I accept the evidence of continuing personal support for the prisoner, but the truth of the matter is when he is released on parole his associations will need to be very closely monitored. Submissions were made about the commencement date of the sentence which I have taken into account. 25. The Crown set out the formal matters relating to the maximum penalty and the like and drew my attention to the decision of Duong [1999] NSWCCA 353. I also had drawn to my attention two other authorities with which I am more familiar, Pengallo (1991) 56 A Crim R 441 and the decision of Taouk (1992) 65 A Crim R 387, particularly the judgment of Justice Badgery-Parker. 26. Counsel for the Crown in her submissions to me particularly drew my attention, apart from the principles contained within those judgments, to other aspects of the decision of Duong. That was a Crown appeal where an offender driving Sydney to Melbourne or from Melbourne to Sydney, in possession of 2.6 kilograms of heroin valued at $8 million, when stopped by Highway Patrol officers in southern New South Wales offered a bribe of $100,000 to police to permit him in effect to be let go with the drugs in his possession. He was convicted of the supply of a large commercial quantity of heroin and sentenced to a minimum term of five years with an additional term of three and a half years by one judge, and for reasons that I do not understand, neither did the Court of Criminal Appeal, a different judge gave him an entirely concurrent sentence for the "bribe" matter. The maximum penalty of that offence being the same as it is in this matter. 27. On appeal the Crown's application was upheld and the Court quashed the orders of the sentencing judge and instated a sentence of five years with a minimum term of three years imprisonment dating from the expiry of the non parole period for the supply matter. Justice Newman speaking for the Court spoke of the offence being within the category of the "worst type of case" and he noted that had the "attempt succeeded" two policemen would have been corrupted and "no less than $8 million worth of heroin would have found its way onto the streets of Sydney with the horrific social consequences that would flow from that release". 28. I just pause for a moment to point out that the High Court of Australia has recently discussed the issue of categorising offences as "worst case offences". Learned counsel for the Crown in relation to this matter submitted that the offending with which I am concerned was "very similar" and sought to submit that this offence that the prisoner had committed was "akin to the offence of attempt to pervert the course of justice" but was in fact a "substantive offence" in the manner discussed in Taouk. 29. The High Court in Killic [2016] HCA 48 recently discussed the use of the expression "the worst category of offence" it was an expression that raised, of course, in the famous landmark case of Veen (No 2), a decision of the High Court from 1988. The Court said in Killic at [19]: "It is potentially confusing therefore and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being "within the worst category." It is a practice which should be avoided." 1. The Court said at [20]: "That there were other reasons to avoid the use of the expression "the worst category" of an offence not infrequently where an offence does not warrant the maximum prescribed penalty a sentencing judge may observe in the course of his or her sentencing remarks that although the offence is serous or particularly serious instance of the offence it is not within the worst category. To do so is not inaccurate and it may be thought a convenient form of legal shorthand, but lay persons are unlikely to be familiar with the legal signification of the expression and as a result might wrongly take it to mean that the judges underestimated the seriousness or effects of the offence. In order to avoid difficulties of that kind sentencing judges should avoid using the expression "worst category" and instead, in those cases where it is relevant to do so, state in full whether the offence is or not so grave as to warrant the maximum prescribed penalty." 1. This offence is not so grave as to warrant the maximum penalty, but it is not an offence at the lowest level of seriousness. It is a serious offence of its type. I accept in the context of assessing the seriousness of the offending in the context of the facts of the case that a person who believes himself to be "innocent" or "setup" may for a number of reasons in a desperate and reflex manner make the offer of a bribe. This prisoner, was on the jury's verdicts, in that situation, particularly in the context of being on parole and the heavy suspicion that lay with him given where the drugs were found. It is to be pointed out that the prosecution by the police were able to produce evidence to the Court during the trial showing the prisoner having a personal connection with the motor vehicle that was parked in the parking space inside which the bulk of the prohibited drugs were found, although its ownership was a moot question. 2. In the context of the Crown seeking in the matter that I am concerned with to draw parallels with Duong there are a number observations that need to be made noting and respecting the sentence that it was imposed on Mr Duong by the Court of Criminal Appeal in 1999. The first point to be made is the matter that was underlined by the Court of Criminal Appeal in 2012 in the decision of R v RCW (No 2), where a colleague of mine in a busy list at Gosford was attracted to a particular sentence imposed in a matter dealt with by the Court of Criminal Appeal and effectively based the sentence for the case at bar upon that decision. The Court of Criminal Appeal observed that it was wrong in principle for a judge to fixate on one case involving different considerations as providing necessarily a yardstick for the appropriate sentence for the matter to be determined. 3. In this particular matter, concerning myself with the matter of Duong, it is to be pointed out that Mr Duong was guilty of the offence of supplying prohibited drugs for which, in effect, he had been intercepted by police, or in respect of which by reason of his possession of the heroin he had attracted police attention. The offer of the bribe, although far more modest that the $2 million offered by this prisoner, was to escape an inevitable conviction. In other words, a rightful conviction. It was a "realistic" offer. But further, as Justice Newman pointed out, a bribe that was designed to permit him to continue his journey with the drugs to reap the financial benefit of his criminal conduct and also to visit the considerable harm done to the wider community by the drug heroin being available to it. In other words, the offer of the bribe was an attempt to escape a rightful conviction and continue the prisoner's role in the drug trade. 4. Here, the bribe offered was to make possible consequences of the investigation go away, an investigation that ultimately led to the prisoner being found 'not guilty' of the charges that related to his alleged possession of the drugs. In other words, the bribe was not designed to avoid a "proper conviction" or an inevitable conviction. It was not also a bribe to continue to use the drugs for profit and cause the resultant damage to the community. I note the size of the bribe. Whether the prisoner could pay it or not is not to point. It was a bribe calculated, in my view, to achieve the purpose of corrupting the police of conveying the prisoner back to the police station. But also the size of the bribe, almost breathtaking in its magnitude, demonstrates that the prisoner had not really thought through what he was doing. There is no evidence produced by the Crown that the prisoner could have afforded a bribe of $2 million which would be, in my view, a relevant factor to take into account. But it is not to point in the context of his moral and criminal liability that he could not raise the money. I note the evidence at trial in respect to the drugs found at the premises does not reveal those drugs to be any more than a third of the value of the bribe that was offered. 5. Further, the offer of the bribe was ultimately and objectively an exercise in futility. Not because the police could not be corrupted. Their investigation of the matter proved that to be so. But because there were many more police involved in the investigation. In the matter of Duong, the police who were offered the bribe were the only two police that had at that point contact with Mr Duong. In this particular matter, the prisoner had been taken away from where the drugs had been seized, they were clearly in the possession of other police officers. There were other police officers video recording and photographing various matters and it was clear that the course had been set in motion for the drugs that had been seized to be forwarded on to the laboratory for analysis or examined by scientific officers and the like. 6. The finding of the drugs was a matter of record, it was filmed and photographed. The offer the prisoner made was to police who were being asked to do something in relation to a matter that was completely out of their control. Again, this reflects the prisoner not thinking through the matter. It shows most importantly that it was not premeditated although I note even if it could be regarded as fairly "amateurish", the criminality is not necessarily diminished because crimes are poorly planned or not professionally undertaken. Professionalism in the committing of a particular crime may speak of aggravation of the objective seriousness, but it must be fairly said too in relation to the issue of offering bribes that it is not a common offence found in the Courts thankfully. One would scarcely have the opportunity one would have thought to develop the "professionalism" that a drug supplier or a burglar or an armed robber may be able to develop in relation to a particular form of criminal activity. It is to be said the prisoner's offending was reactive to the circumstances. But, as I said, not planned or premeditated. I am mindful, of course, in Taouk the offences committed were committed without even the knowledge of the person who was to be corrupted, but that does not detract from the objective seriousness of particular offending. 7. I have taken into account all the submissions that have been made by the parties, particularly, concentrating on the very helpful submissions of the Crown and the reliance upon the Crown, not only as to the assessment in principle of the offending, particularly, from the decision of Duong, but as I understood the Crown submissions the attempt to draw a parallel between this level of offending and the prisoner's. In that regard, I note what the Court said about the matter at [15] - [23]. 8. In sentencing the prisoner, I have had regard to s 3A Crimes (Sentencing Procedure) Act. Offences of this type require an element of general deterrence to be present, a significant element of general deterrence, and in the prisoner's case, given his background, an element of personal deterrence. I should point out that prisoner's criminal history is not an aggravating factor under s 21A Crimes (Sentencing Procedure) Act 1999 ('the Act') but it entitles him to no particular leniency. He has to be adequately punished in the context of the purposes of sentencing made accountable for his offending but also, I am required even at this stage of his life to promote his rehabilitation. I have taken into account all the purposes of sentencing, I do not believe that the community is required to be protected from the prisoner. With regard to s 21A of the Act, it is clear, that the commission of the offence on parole, that is "conditional liberty", is a significant aggravating factor under s 21A(2) of the Act and I have already referred to that matter. 9. In respect of mitigating factors there are few. However, I am prepared to find as a mitigating factor that the offence was not planned or organised criminal activity. I am prepared to find on balance, although there is some minimisation of the offending, that the prisoner has expressed relevant remorse. Although s 21A was not addressed in any depth or at all in the course of submissions apart from reference to the aggravating factor of offending committed whilst subject to conditional liberty, the truth of the matter is that the prisoner cannot claim any benefit in relation to his character. He is certainly is not a person who I could conclude is unlikely to reoffend although I note the support of his partner. She was in a relationship with him at the time of this particular offending it should be pointed out. I cannot conclude that he has good prospects of rehabilitation although I give weight to the Community Correction report which indicates that his reaction to parole supervision had been positive. I note, of course, the unusual circumstances in which this offending occurred without planning and the like. There appear to be no other mitigating factors under s 21A(3) that arise. 10. I have concluded that there are "special circumstances" pursuant to s. 44 of the Act. One special circumstance is the sentence I propose to impose will be partly accumulative upon the current balance of parole. I also believe there should be some further adjustment of the relationship of the non-parole period to the balance of the sentence to provide professional assistance for the prisoner to adjust to community living and also to give him some assistance or direction in relation to matters that are the subject of discussion in the presentence report because it is, as I said, clear to me, putting aside for the moment the acquittal in relation to the drug supply charges, that the position in which the prisoner found himself must have arisen from associations the prisoner had at that time. Of course, being a prisoner with his criminal history, if released to parole, he will find himself again the subject I would have thought of a Firearms Prohibition Order being served and he will be subject again, of course, to surveillance or searching by the police in those particular circumstances. In the context of the maximum penalty providing a yardstick for the worst category of offence, if that is the correct expression now in light of the High Court judgment to which I have referred, noting the subjective issues, the limited mitigating factors and the fact that the offence was committed on parole, I have concluded that the appropriate sentence should be three years imprisonment. Could you stand up thanks, Mr Araya? I am sorry, it had to take so long. I am sorry about the interruption. But the facts of the matter are that there many matters a judge is required to address otherwise he or she will be accused of not taking relevant matters into account. 11. In respect of the offence for which you are found guilty, you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of one year and eight months. That will commence on 24 May 2017. That non-parole period will, on my calculation, expire on 23 January 2019. I fix a balance of sentence of imprisonment of one year four months. That will expire on 23 May 2020. The total of imprisonment is three years with a non-parole period of one year eight months. You can take a seat thanks very much. 12. HIS HONOUR: Now, Madam Crown, I appreciate you were not involved in - were you in this case in the trial? 13. MAINE: No, your Honour, I wasn't, Ms Phillips. 14. HIS HONOUR: You weren't, I appreciate you being here, anything from you at all? 15. MAINE: No, your Honour, nothing further from the Crown. 16. HIS HONOUR: Right, thank you. Ms Heathcote, anything from you? 17. HEATHCOTE: No, thank you, your Honour. 18. HIS HONOUR: Thank you. 19. Mr Araya, do you understand the sentence I have imposed? 20. OFFENDER: Yes, your Honour. ********** 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. Decision last updated: 14 June 2017