Abubakar Braimah-Mahamah v The Queen

[2016] NSWDC 138

District Court

New South Wales

Medium Neutral Citation:	Abubakar Braimah-Mahamah v R [2016] NSWDC 138
Hearing dates:	14 and 17 June 2016
Date of orders:	15 July 2016
Decision date:	15 July 2016
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	The appeal is allowed; The convictions imposed by the Local Court are confirmed; and Pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender is directed to enter into a good behaviour bond for a period of 16 months from today.
Catchwords:	APPEAL – COMPUTER OFFENCES – unauthorised access to or modification of restricted data held in computer – solicitor from the Office of the Director of the Public Prosecutions; SENTENCE – appeal against severity of sentence – plea in mitigation – purposes of sentencing – appropriateness of conviction – denunciation of offending conduct – general deterrence – s 9 bond
Legislation Cited:	Crimes Act 1990 (NSW) s 308H Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 8, 9(1), 10, 21A(3) Criminal Procedure Act 1986 (NSW) s 169
Cases Cited:	Baines v R [2016] NSWCCA 132 Einfeld v R [2010] NSWCCA 87 JCW v R [2000] NSWCCA 209 Lee v Regina [2011] NSWCCA 169 Qing An v Regina [2007] NSWCCA 53 R v Borkowski [2009] NSWCCA 102 R v Gent [2005] NSWCA 370 R v Kennedy [2000] NSWCCA 527 R v Mauger [2012] NSWCCA 51 R v McGaffin [2010] SASCFC 22 R v Talia [2009] VSCA 260 Salter v The Director of Public Prosecutions (NSW) [2011] NSWCA 190 Wagih Hanna Awad Nakhla v R [2011] NSWCCA 143
Category:	Sentence
Parties:	Mr Abubakar Braimah – Mahamah (Appellant) NSW Police (Respondent)
Representation:	Counsel: Mr D Marr (Appellant) Mr M Higgins (Respondent) Solicitors: Ms A Brady (Appellant) Crown Solicitor’s Office (Respondent)
File Number(s):	2014/173843
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 22 January 2016 Before: Wahlquist LCM

Judgment

1. Mr Abubakar Braimah-Mahamah [1] appeals from a decision of the Local Court of NSW made on 22 January 2016 sentencing him to perform 100 hours of community service (concurrently) in respect of each of eight charges of accessing restricted data held in a computer contrary to s 308H of the Crimes Act 1990 (NSW). The appeal was brought on the grounds of the severity of sentence.

   1. Hereinafter referred to as the “offender”

2. It is was submitted on the offender’s behalf that I should take account of the circumstances his plea, remorse, prior good character, lack of antecedents and the extra-curial punishment suffered following the commission of the offences and exercise the discretion under s 10 of the Crime (Sentencing Procedure) Act 1999 (NSW) [2] so as not to record a conviction.

   2. Hereinafter referred to as the “1999 Act”

FACTS

3. The offender was employed by the Office of the Director of Public Prosecutions [3] first as a paralegal from 20 October 1990 to 9 May 2002. He was admitted as a solicitor on 15 February 2002 and commenced as a Prosecution Officer (lawyer) on 10 May 2002. He was promoted to various grades but ultimately resigned his employment on 13 June 2014, two days after he was arrested and charged for these offences on 11 June 2014.

   3. Hereinafter referred to as the “ODPP”

4. The offences arise out of conduct of 13 December 2013 when the offender unlawfully accessed documents on a restricted computer system belonging to the ODPP known as “CASES”.

5. Between 3 May 2012 and 13 December 2013 he had a personal relationship with Mr Hudu Abdulai Alhassan. [4]

   4. Hereinafter referred to as “Mr Alhassan”

6. From 3 May 2012, Mr Alhassan was a defendant in criminal proceedings in NSW having been charged for various indictable offences including:-

1. Supply a large commercial quantity of a prohibited drug;

2. Supply a prohibited drug; and

3. Driving recklessly.

7. Mr Alhassan pleaded not guilty to the offences but was found guilty on 10 November 2015 of supplying not less than a large commercial quantity of a prohibited drug, namely 1980.7 grams of methylamphetamine following a trial in the Sydney District Court.

8. Three other co-accused not known to the offender in this case were also charged and they pleaded guilty to the charges against them on or about 26 October 2015.

9. An electronic file for the Mr Alhassan matter was created in CASES.

10. Each document saved or added to an electronic CASES file was allocated a unique identifying alphanumeric title. Further each employee was issued with a user login so as to allow access to the CASES system. Before logging in, the user is required to input their user login details and acknowledge a warning as to the consequences of unauthorised use.

11. All lawyers at the ODPP were permitted to access and read documents contained in the electronic files for matters that were not within their practice, except matters which required special security clearance. The authority to do so was governed by the ODPP Code of Conduct and the ODPP Information Security Policy & Guidelines and Corruption Prevention Policy.

12. To access an electronic file the user was required to input the matter name and number into the search field and then to click on the “Attachments” button on the matter screen. On each occasion that the matter or its attachments were accessed, the incident would be logged for tracking and security purposes

13. By reason of his employment as a Prosecution Officer (lawyer) the offender was issued with a user login.

14. It was an accepted fact that at no time was the offender required or authorised for the purposes of his duties as a lawyer employed by the ODPP to access the Mr Alhassan CASES file.

15. The offender’s relationship with Mr Alhassan came to attention following 19 December 2013, when Mr Alhassan made an application at the Parramatta District Court to vary his bail conditions. On that occasion, the managing lawyer of the Parramatta office of the ODPP spoke to the offender. The offender was observed having a conversation with Mr Alhassan outside the Court. When asked whether he intended to attend Court whilst the bail variation hearing was being conducted or give evidence, the offender indicated that he would not do either, was embarrassed by the attention and had decided to leave.

16. The offender subsequently advised the managing lawyer at the Campbelltown office of the ODPP why he had attended Parramatta District Court that day and confirmed that he was not there to give evidence and had not intended to give evidence while Mr Alhassan applied for a variation to his bail conditions.

17. An audit was subsequently authorised for the offender’s access to CASES and his telephone and email. It was disclosed that he had accessed the Alhassan file on CASES on 61 separate dates between 3 May 2012 and 13 December 2013. Over the 61 day period, the offender accessed 48 attachments to Mr Alhassan’s electronic file a total of 127 times.

18. Although the offender objected to paragraphs 44 and 45 of the statement of facts referring to circumstances which related to incidents beyond the matters before me, I allowed those paragraphs to stand for reasons given in my decision of 17 June 2016. The offender did not require the prosecution to formally prove the matters the subject of those paragraphs through a contested facts hearing.

19. The audit outcome is relevant in that it indicates that whilst the subject matter of the offences in this appeal were confined to 13 December 2013, they were not isolated incidents. In these circumstances, it was not open to the offender to advance a case of mitigation on such a basis. [5]

    5. JCW v R [2000] NSWCCA 209 [4] – [9] (Spigelman CJ)

20. The facts also indicate that during the period of 5 May 2013 to 24 May 2014 the offender made telephone contact with Mr Alhassan on approximately 80 occasions.

21. However, the prosecution does not assert that the offender disclosed any of the information that he accessed on the CASES computer system to Mr Alhassan or to any other person.

22. The documents accessed by the offender involved eight occasions on 13 December 2013 being within 6 months preceding the filing of the Court Attendance Notices. It is acknowledged that it is not possible to say what period of time for which any of the documents were accessed. However, it is clear that the documents were accessed during the period between 11:32:12 and 11:50:18. The list of documents is set out in the facts as follows:

Time accessed	Doc Ref	Document title	Description of document
11:32:12	A2650353	ALHASSAN Hudu_2_2013_09_23_14_34_04_570	Various bail documents Various bench sheets Non-publication/suppression order Application for public interest immunity claim, closed court, non-publication and suppression order Statement of Steven Anthony Patton dated 5/4/2012
11:38:54	A2650352	ALHASSAN Hudu 1_2013_09_23_14_00_18_834	Bench sheets Notices of committal, listing, file transfer Alhassan CANs Bail applications, determinations Crown submissions in relation to bail
11:40:48	A2651615	Ojimba and others ARRAIGNMENT NOTE	Arraignment note re R v Alozie, Ojuimba, Ndiokewlu & Alhassan
11:44:56	A2651614	Ojimba and others FINAL arr indict	Indictment R v Alozie, Ojimba, Ndiokewlu and Alhassan 26/9/2013
11:45:47	A2651613	Ojimba FINAL arr indict	Indictment R v Ojimba 26/9/2013
11:46:46	C252469	Cr responses to S91 submissions on behalf of ALOZIE in ABDULA 201214275	Crown submissions in response to Alozie s.91 submissions
11:48:03	C242337	Submissions to the Director re: Induced Stmt in ABDULA & OR 2012014275	Submissions to the Director by Peter Low seeking approval to obtain induced statement from offender awaiting sentence dated 21/3/2013
11:50:18	C236080	Alhassan	Pre-committal advice

23. Although no attempt was made to delineate the significance of the various documents, the prosecution drew attention to the document the subject of Charge 7. That document contained submissions to the Deputy Director of Public Prosecutions dated 21 March 2013, recommending that NSW Police be permitted to take an induced statement from a potential witness, being an offender awaiting sentence for a Commonwealth importation matter. The person concerned had apparently indicated a willingness to assist police with some information which may have been of indirect assistance in the prosecution of some of Mr Alhassan’s co-accused, and in exchange it was proposed to offer him an affidavit of assistance to use in his sentencing proceedings. The potential witness later changed his legal representation and indicated that he was not prepared to give evidence in Court. On 3 July 2013, the NSW Police advised the ODPP of the same.

24. The dates of the offender’s access on 13 December 2013 post-dated the advice of the witness declining to assist NSW Police and I accept, as it was conceded before me, that it did not influence the decision of the witness to withdraw any offer of assistance.

25. The majority of the documents which have been accessed contained data which could be described as “for external use” – that is, available outside the confines of the ODPP in advancing the prosecution. Nevertheless there are clearly some internal documents including that which the prosecution had drawn my attention.

26. Whatever the sensitivities of the documents accessed, it is not in issue that all were “restricted” on the CASES system.

OFFENCE

27. Section 308H of the Crimes Act 1900 (NSW) is in the following terms:

308H Unauthorised access to or modification of restricted data held in computer (summary offence)

(1) A person:

(a) who causes any unauthorised access to or modification of restricted data held in a computer, and

(b) who knows that the access or modification is unauthorised, and

(c) who intends to cause that access or modification,

is guilty of an offence.

Maximum penalty: Imprisonment for 2 years.

(2) An offence against this section is a summary offence.

(3) In this section:

"restricted data" means data held in a computer, being data to which access is restricted by an access control system associated with a function of the computer.

28. It is apparent from the terms of the section, the definitions of access in s 308A(1) and unauthorised access in s 308B(1) that it covers a potentially large scope of conduct. However three factors are clear:-

1. the offence covers access in both the private and public sectors;

2. to the extent the offence is committed by “accessing”, it is not an ingredient that the offender utilises or acts on the basis of the information and nor that there be any actual harm or loss; and

3. Access can relate to data in a matter that is active or no longer active.

CIRCUMSTANCES OF THE OFFENDING

29. According to Mr Jones’ report:-

“Mr. Braimah-Mahamah reports that in 2013 he became aware of a member of the Ghanaian community who had been charged. As a senior member of the Ghanaian community, Mr. Braimah-Mahamah offered the individual emotional support. During this time, Mr. Braimah-Mahamah accessed the CASES system as a matter of curiosity without considering the implications of his behaviour.” [6]

6. Exhibit A, Tab 9.1 at [7]

30. Mr Jones’ states that the offender’s reasoning and offending behaviour were entirely inconsistent with his level of intelligence and past behaviour, and that it was so lacking in judgment that it cannot be viewed as idiomatic. [7] I accept that this is so.

    7. Ibid [30]

31. Mr Jones proceeds to describes how the warning message relating to unlawful access to information which had been in existence for the past 15 – 20 years, lost effectiveness as many of the functions the offender performed involved sourcing ‘… similar cases undertaken by other offices and solicitors.’ According to Mr Jones understanding this was a practice endorsed by the ODPP as an informal education and information sharing system of greater significance. However, Mr Jones notes:-

“Since its inception, the warning message was presented Mr. Braimah-Mahamah each time he logged into the computer system. Whilst initially he attended to the contents of the message, over time he reports he ‘clicked’ the acknowledgement button without thinking or reading the warning message. Essentially, his process of routinely logging on became a habit of automatic response and, becoming habituated to the message, Mr Braimah-Mahamah attended less to the information in the message each time he logged into the system” (citation omitted) [8]

8. Ibid [34]

32. Accepting this desensitisation to the warnings as providing some context as to what occurred, it is inconceivable that the offender by reason of his relationship with Mr Alhassan and his position as a senior ODPP lawyer was not aware of the conflict of interest in which he was placed. So much appears confirmed by his actions on 19 December 2013 when he spoke with ODPP managing lawyers at both Parramatta and Campbelltown.

33. On 10 March 2014, subsequent to this matter coming to attention, the Director of Public Prosecutions wrote to all staff advising of the restrictions on accessing matters on the CASES system. [9]

    9. Exhibit A, Tab 9.13

SUBJECTIVE FACTORS

34. The offender is aged 61 years of age.

35. He was born in Ghana and migrated to Australia in 1978 to pursue university studies. He completed his studies at the University of New England where he also met his first wife. After completion of his studies he moved to Sydney, married in 1982 and had five daughters. His first wife died in tragic circumstances in 1996 and as a consequence he raised his daughters (then aged between six months and 11 years) as a single parent. He remarried in 2009 and by all accounts has a loving and supportive family relationship. [10]

    10. Exhibit A, Tab 9.1 at [12] – [13]

36. Although the Court proceedings and loss of employment have affected him, Mr Bradley Jones observed that the offender is managing his emotional and psychological functioning well. [11]

    11. Ibid [18] – [19]

Plea of Guilty

37. The offender had in the first instance been charged with one count of misconduct in public offence in addition to the summary offences the subject of this appeal. On 12 October 2014 when the matter was listed for trial, the offender offered to plead guilty to the summary offences. On 13 October 2015, the NSW Solicitor General under delegated authority from the Attorney General of NSW determined to accept the offer, and not proceed with the indictable prosecution. In these circumstances the matter was remitted to the Local Court of NSW pursuant to s 169 of the Criminal Procedure Act 1986 (NSW). The offender entered a plea of guilty and was sentenced as indicated earlier. The prosecution acknowledges that a two week trial was avoided but only on the second day of its listing. Further, the prosecution asserts that there were no prior concessions of fact resulting in the trial needing to be fully prepared. On this basis the prosecution submits that the utilitarian discount should be limited to between 10 – 15%. In line with the principles referred to in R v Borkowski [12] (in particular, principles eight and nine), I accept that a discount of around 12.5% is appropriate.

    12. [2009] NSWCCA 102 [32] (Howie J); see also Lee v Regina [2011] NSWCCA 169 and Wagih Hanna Awad Nakhla v R [2011] NSWCCA 143

Remorse and contrition

38. The offender has provided a level of remorse and contrition as noted in the various testimonials by the witnesses to whom he has confided.

Mr Daniel Brown, on 30 October 2015 stated:-

“I know that Mahamah is very ashamed of himself and remorseful for his actions.” [13]

13. Exhibit A, Tab 9.2

Mr Charles Berko, an Examiner of Patents, on 16 January 2016 stated:-

“Mahamah has expressed regret and remorse for this offending action, to me, and is very upset with himself.” [14]

14. Exhibit A, Tab 9.6

Mr Osman Adam, the President of Canberra Muslim Youth Inc, on 17 January 2016 stated:

“He is highly remorseful and has suffered greatly for this breach of work trust” [15]

Mr Amendra Singh, barrister, on 18 January 2016 stated:-

“Mahamah has discussed his conduct to me. He has expressed his profound regret and shame at his conduct. I have no doubt that his remorse is genuine.” [16]

Mr Richard Waldersee, barrister, on 25 May 2016 stated:-

“He has expressed to me real remorse for his wrongdoing” [17]

Mr Bart Vasic, barrister, on 13 June 2016 stated:-

“When Mahamah told me of the offences he was genuinely and deeply contrite and embarrassed” [18]

15. Exhibit A, Tab 9.5

16. Exhibit A, Tab 9.2

17. Exhibit 1

18. Exhibit 1

39. Nevertheless there is force in the prosecution’s contention that the offender has not acknowledged the wrongfulness of his conduct. Reference in this regard is made in the statement recorded by Mr Jones in his report where he stated-

“With respect to his feelings regarding his behaviour, Mr. Braimah-Mahamah expressed remorse and sorry, stating, ‘I’m really sad. If I thought what I was doing was wrong I would not have done it. I am so sad about it, how it has upset so many people, the impact it has had. I am just sorry for it all.’” [19]

19. Exhibit A, Tab 9.1 at [8]

40. Notwithstanding this qualification in view of the offender’s character and background (discussed below) I accept that he should be viewed as being unlikely to reoffend. [20]

    20. s 21A(3)(g) and (h) of the 1999 Act

Good character

41. The offender has presented a number of testimonials speaking as to his prior good character. I have previously referred to some of these. Many of these testimonials were from people who were former professional colleagues and acquaintances of the offender over an extended period. I also have before me the oral evidence of Mr Kishore Govind given before the Local Court. Mr Govind was a former Crown Prosecutor in this State and judge in Fiji. The prosecution does not dispute prior good character.

42. It is appropriate to take good character into account, bearing in mind the provisions of s 21A (3)(f) of the 1999 Act. However in this context less weight must be afforded in light of the principles summarised in R v Gent. [21] In that case the Court reaffirmed R v Kennedy [22] where Howie J (with Simpson J agreeing) stated:-

“21 It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.”

21. [2005] NSWCCA 370 [48] – [58] (Johnson J with McCllenan CJ at CL and Adams J agreeing)

22. [2000] NSWCCA 527 [52]

Lack of prior antecedents

43. In terms of antecedents the offender has only one matter on his record, being a conviction for driving whilst suspended on 17 June 2007. I accept that for the purposes of s 21A(3)(e) of the 1999 Act that the offender does not have a significant record of previous convictions. Nevertheless the nature of the offence is such that those who commit it would often have no or limited antecedents and accordingly less weight is to be afforded on this ground. [23]

    23. R v Gent [2005] NSWCA 370 [59] (Johnson J with McCllenan CJ at CL and Adams J agreeing)

Extra-curial punishment

44. The offender has resigned his employment with the ODPP after being initially suspended and has not renewed his practising certificate occasioning consequent financial loss. The decision to suspend and the subsequent decision to resign were by brought about by being charged for the offences rather than being convicted for them.

45. Notwithstanding this, I accept that the offender has effectively lost his employment consequent to the events the subject of these matters and has since been unable to obtain employment. I accept that conviction in these matters could have detrimental consequences for the offender’s future employment. Whilst this is a relevant factor to take into account in exercising the discretion pursuant to s 10(3)(d) of the 1999 Act, it must be acknowledged that as the offending occurred within employment the case for mitigation and the ability to engage the discretion must be less be less. [24]

    24. R v Talia [2009] VSCA 260 [27] – [28] (Ashley and Weinberg JJA)

46. Insofar as his ability to resume legal practice by reference to an ability to obtain a practising certificate is concerned I am not satisfied that the generalised prognostications provide a basis for me to consider this as extra-curial punishment. Nor do I consider it pertinent to the exercise of the discretion under s 10 of the 1999 Act, to avoid potential consequences of any inquiry by the Law Society of NSW as to the offender’s fitness to practise, and to be issued with a practising certificate. [25]

    25. R v Mauger [2012] NSWCCA 51 [21] (Harrison J with Beazley JA and McCallum J agreeing)

47. The offender’s loss of standing within his profession and within the Ghanian community has been referred to in various testimonials. In particular, Mr Jones refers to the Ghanaian community in respect of which he has held various positions including the Chairman of the Association of Northern Ghanians. [26] However the offences involved transgression whilst in a position at the ODPP in circumstances involving a member of the Ghanian community with which the offender had a relationship. In my view no weight is to be afforded to his loss of standing in the community. [27]

    26. Exhibit A, Tab 9.1 at [23] and [41]

    27. Einfeld v R [2010] NSWCCA 87 [101] Basten JA (with Hulme and Latham JJ agreeing)

ANALYSIS

48. Much of the argument before me centred on whether a conviction should be imposed.

49. In support of an argument that convictions should not be imposed counsel for the offender drew attention to statistics provided by the Judicial Commission of NSW. These are limited to eight offenders from October 2011 to September 2015. [28] Bearing in mind the few sentences and the breadth of potential offending that the offence can cover, the statistics are of little assistance. [29]

    28. Exhibit 2

    29. Qing An v Regina [2007] NSWCCA 53 [98] (Beazley JA with Hislop J agreeing); see also Baines v R [2016] NSWCCA 132 [111] (Fagan J)

50. The prosecution referred to the sentence imposed on the offender referred to in Salter v The Director of Public Prosecutions (NSW) [30] as instructive. [31] However, the facts of that case differed significantly and the appeal did not directly relate to the severity of the sentence.

    30. [2011] NSWCA 190

    31. In Salter, the offender was sentenced to a term of 200 hours of community service in relation to each charge (to be served concurrently).

51. In the South Australian case of R v McGaffin, [32] Gray J stated:

    32. [2010] SASCFC 22

“31 The significance and importance of the recording of a conviction was the subject of the observations of this Court in Yousef, where Sulan and Layton JJ observed:

... A conviction does not merely record a finding that the person committed the crime charged: it condemns him for that crime; it is a communicative act, communicating censure to the convicted person. The recording of a conviction acts as a general deterrent to those who may be inclined to offend in a similar way.

There is an important public interest in convictions being recorded to express community disapproval of a defendant’s conduct. A court will be more inclined not to record a conviction where the offending has had no direct effect on a victim, and where the breach is not deliberate and blatant.

32 In Lambert, Sulan J further observed:

... the question of whether to record a conviction is one of considerable importance. The Court observed that there are persons and organisations, including prospective employers, companies such as credit providers, and government departments such as immigration authorities, which have a legitimate interest in knowing the truth about the character of persons who deal with them. Furthermore, if a court concludes that, in the circumstances of a particular case no conviction is to be recorded against an offender, that fact is of significance to any person or organisation which may have a legitimate interest in the background and character of that offender.” (Footnotes omitted)

52. White J (with Doyle CJ agreeing) stated:

“81 The recording of a conviction serves many purposes. First and foremost, it is the formal record of the adjudication of the offender’s guilt, and thus comprises a formal and public declaration that the person engaged in the charged criminal conduct. As such it forms part of the community’s denunciation and censure of the conduct and the community is entitled to expect, as the words of s 39 of the CLSA indicate that, unless there is good reason not to do so, convictions will be recorded. Secondly, the prospect that a conviction will be recorded forms part of the deterrent effect of a sentence. This is because the recording of a conviction can have a significant deleterious effect on an offender, and can act as a form of continual punishment.

82 As was pointed out by Sulan J in R v Lambert, after referring to the Queensland Court of Appeal decision in R v Breise, there are many employers and organisations in the community who refer to criminal records, whether to satisfy themselves of the absence of such a record, or as to the nature and extent of the record in a particular case. A requirement for a so-called “Police Check” is now commonplace, in particular for those who work with children, or who are involved in community activities involving children. As I understand it, a “Police Check” involves a certification by the police of a person’s criminal record.

83 In general, the more serious the offence the less likely it is that a court will be able to find good reason not to record a conviction.”

53. In R v Mauger, [33] Harrison J (with Beazley JA and McCallum J agreeing) stated in reference to s 10 of the 1999 Act:-

“19 Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of that offence: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305. However, the focus must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 577.”

33. [2012] NSWCCA 51

DETERMINATION

54. Even accepting the data accessed had varying levels of sensitivity the offences were committed in relation to an active matter in a public office involved in the prosecution of criminal offences. The access involved the offender having an ongoing personal relationship with the person to whom the data related. It is inconceivable that the offender was not aware that a conflict of interest existed. Although the conduct occurred on the one day, it was not isolated. This does not aggravate the offences but it does now allow a submission of mitigation on the basis of involving isolated conduct. There is a clear public interest in the ODPP staff meeting high standards of conduct. By not doing so, the offender not only breached the obligations of his position but potentially compromised himself, undermined the confidence of the public and more specifically, the confidence of those who in their dealings rely on the integrity of ODPP staff to ensure compliance with the required standards. The offences charged each carried a maximum period of two years imprisonment. The offending was not trivial nor did it involve any extenuating circumstances. In written submissions, counsel for the offender conceded that what was involved was a serious error in judgment. In my view the offences fall just above the lower range of objective seriousness.

55. In considering the purposes of sentencing under s 3A of the 1999 Act, I have borne in mind the deterrent effect of the extra-curial punishment referred to in respect of both the offender and others who may be in a similar position. I accept that the offender has been specifically deterred, the likelihood of him reoffending is low and that he has excellent prospects of rehabilitation. To an extent, the offender has already been made accountable for his actions. However, the ability to mitigate the sentence by reference to the matters discussed is limited in the way I have outlined.

56. I acknowledge that the potential consequences of conviction may be significant. However bearing in mind the purposes of sentencing and in particular, the notions of general deterrence and denunciation, this is not a case where the matter should be dealt with pursuant to s 10 of the 1999 Act.

57. Taking all matters into account including the timing of the plea, a sentence appropriate to the level of offending is the imposition of bonds under s 9 of the 1999 Act for a period of 16 months.

ORDERS

58. For these reasons the orders are:

1. The appeal is allowed;

2. The convictions in each matter are confirmed;

3. The orders of Wahlquist LCM made on 22 January 2016 are otherwise set aside and pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender is directed to enter into a good behaviour bond for a period of 16 months from today.

Endnotes

Decision last updated: 15 July 2016