R v Malyon CA435/97 [1997] NZCA 212 (18 December 1997)

Last Updated: 19 April 2013

IN THE COURT OF APPEAL OF NEW ZEALAND CA435/97

THE QUEEN

v

RONALD DAVID MALYON Coram: Thomas J

Tipping J Blanchard J

Judgment: 18 December 1997

(ex parte)

_{JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J}

The appellant pleaded guilty to a charge of receiving and was found guilty of possessing cannabis for supply and of bribery of a law enforcement officer. He was sentenced to one month on the receiving charge and 18 months and two years respectively on the possession and bribery charges. All of these sentences were imposed cumulatively leading to an effective sentence of three years and seven months. The appellant now appeals against his sentence. After being considered by three judges of this court a request for legal aid was declined. The appellant has filed written submissions and the appeal has been determined by reference to them.

The facts relating to the offending are as follows. The receiving charge related to a car which the appellant accepted in part or full settlement of a debt where he should have been aware that it was suspect. The cannabis charge arose from the Police finding three pounds of cannabis leaf valued between $8,000 and

$12,000 in the appellant’s basement. The Police also found $5,000 in cash in the toes of some shoes placed next to the appellant’s bed. The bribery charge arose out of the appellant offering an officer this money for the “Police Christmas Club”

or for himself in return for no charges being laid. The appellant denied the two more serious offences, saying that his comments regarding the “Police Christmas Club” had been badly misconstrued.

The appellant puts forward two grounds of appeal. They are:

1. That the sentence of two years imprisonment for the bribery charge is manifestly excessive; and
   
2. The total sentence of three years and seven months imprisonment is manifestly excessive.
   

The written submissions of the appellant focus on the decision of this Court in R v Sunesh Ram (CA 23/94, 16 March 1994). In Sunesh Ram the appellant was an Indian who, through an intermediary, offered a bribe to an immigration official. He was initially sentenced to 18 months imprisonment but on appeal this term was reduced to nine months. Essentially, the appellant contends that his case is less serious than that in Sunesh Ram and that as result he ought to receive a sentence on the bribery charge which is less than or at least commensurate with the sentence given in that case. As regards the total sentence the appellant submits that the sentences for the cannabis and the bribery offences ought to have been concurrent, rather than cumulative, since arguably they were both related.

There are a number of differences between the appellant’s situation and the defendant’s position in Sunesh Ram. The first is that the defendant in Sunesh Ram was described as “a mature man with no previous offending of good character, with a positive background both in respect of family and employment”. In contrast, the appellant in this case, while a mature man, has a list of previous convictions which include drug and other offences for which he has been jailed on several occasions. Such a history marks the appellant’s character as quite different from that of the defendant in Sunesh Ram. He has also shown little remorse for his actions.

Second, while the bribery was not as direct as that in Sunesh Ram, it was equally insidious. In his submissions the appellant has argued that his comments

have been misconstrued, that they were in fact made in jest, and that as a result his case differs from Sunesh Ram in its seriousness. However, the jury’s finding of guilt means that this explanation was not and cannot now be accepted. The offer made by the appellant must, therefore, be viewed as a serious attempt to bribe a Police Officer in the course of performing his duties. As Lord Templeton said in Attorney General v Reid [1994] 1 NZLR 1, [b]ribery is an evil practice which threatens the foundations of any civilised society and calls for serious treatment and condign punishment”. Viewed in this way the actions of the appellant cannot be taken anywhere near as lightly as he suggests.

The third problem is that in Sunesh Ram it was only with some reluctance that the Court reduced the sentence from 18 to nine months. The Court warned that further examples of this kind of offending may well require for deterrent purposes a reconsideration of the sentencing levels evidenced by The Queen v Vergis (CA 165/92, 17 July 1992). In Vergis the defendant paid a 17 year old clerk in the immigration office to provide a residence permit and associated returning resident visas. He was initially sentenced to two years on the five charges of forgery but this was reduced on appeal to nine months. The defendant in Vergis was described as a first offender who had contributed to his community, who had the support of his family, his friends and associates and as someone who had shown a deep sense of shame and remorse.

We do not intend to embark on a reconsideration of Vergis in this case. It is sufficient to note that there is a number of factors which mean that the sentence imposed in Sunesh Ram and Vergis is not appropriate here. In Sunesh Ram the Court was guided by a need for parity with regard to a particular co-offender and with regard to the sentence imposed in Vergis. There is no such need in this case as the appellant, with his list of previous convictions and his lack of remorse, is markedly different to the two defendants in Sunesh Ram and Vergis who were both given credit for their personal circumstances. Most importantly, it is clear that the courts must deal severely with such efforts to corrupt our system of justice. New Zealand has remained relatively free of the corruption which has afflicted some police forces across the Tasman. The need to maintain the integrity

of our police force means that a deterrent sentence must be imposed. Therefore, the sentence of two years cannot be said to be manifestly excessive.

The appellant contends that the sentences for the cannabis and bribery offences ought to have been imposed concurrently rather than cumulatively. Arguably, the bribe did arise out of the cannabis offending. However, it was a completely separate and distinct offence.

Given the appellant’s previous convictions for possession of cannabis oil and possession of cannabis for supply the appellant could well have received four years for the cannabis offence alone. While such a sentence would have been at the high end of the scale it is one which this Court would not have interfered with. It must also be borne in mind that the appellant could not lay claim to any credit, either because of his personal circumstances or because he pleaded guilty. Thus the overall sentence was clearly within the permissible range. This Court has stated on a number of occasions that where the sentencing judge has accurately assessed the overall criminality of the offender the individual components of the sentence will not be interfered with (See R v Swain CA 158/92, 8 July 1992). While the sentence might have been constructed differently, the sentencing judge accurately assessed the overall criminality of the offender.

Therefore, for the reasons given above, the appeal is dismissed.