Application by Christopher John Laycock under s 78 Crimes (Appeal and Review) Act 2001

[2015] NSWSC 1429

Supreme Court

New South Wales

Medium Neutral Citation:	Application by Christopher John Laycock under s 78 Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1429
Hearing dates:	On Written Submissions
Date of orders:	29 September 2015
Decision date:	29 September 2015
Jurisdiction:	Common Law
Before:	Hall J
Decision:	Application made pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 is dismissed
Catchwords:	CRIMINAL LAW – Appeal and review – Application for inquiry into sentence under s 78 Crimes (Appeal and Review) Act – Applicant pleaded guilty to five counts relating to offences committed while he was a police officer – Applicant claimed sentencing judge had proceeded on an incorrect factual basis – Statement of “agreed facts” tendered on sentence was said to have contained errors and was not agreed to by the applicant – Applicant contended that the sentences imposed were manifestly excessive as a result – Applicant contended disparity between his sentence and sentence of co-offender – Applicant contended sentencing judge had failed to take into account extra curial punishment he had suffered through the loss of his family home – Applicant’s grounds on the application had already been considered by the Court of Criminal Appeal and dismissed – Applicant had not sought special leave to appeal to the High Court of Australia – Whether basis for inquiry into sentence under the Act – Whether basis for referral of matter to the Court of Criminal Appeal – No error established on part of sentencing judge – No error established by Court of Criminal Appeal – No facts or circumstances existing sufficient to cause sense of disquiet or unease with respect to sentence – Application dismissed – No grounds established for a direction or referral under s 79(1) Crimes (Appeal and Review) Act.
Legislation Cited:	Crimes (Appeal and Review) Act 2001
Cases Cited:	Allan – Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2012] NSWSC 1596 Application by Alarn Scott McCormick pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2015] NSWSC 708 Application by Ivan Robert Marko Milat pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2014] NSWSC 434 Application by Roseanne Beckett pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1773 Application of FD [2015] NSWSC 285 Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Application of Victor Makarov Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2013] NSWSC 1468 CL v The Queen [2014] NSWCCA 196 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 Green v The Queen [2011] HCA 49 Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW [2006] NSWCA 172; 66 NSWLR 151 Milat, Ivan Robert Marko – Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 Skaf, Bilal – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 Varley v Attorney General (NSW) (1987) 8 NSWLR 30
Category:	Principal judgment
Parties:	Christopher John Laycock (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant (in person) J Caldwell (Respondent)   Solicitors: Self-Represented (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2015/14933

Judgment

1. This is an application brought by Christopher John Laycock under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”) for an inquiry into the sentence imposed on him by the District Court (Williams DCJ) on 5 April 2012. The sentence was confirmed by the Court of Criminal Appeal (Adamson J with Hoeben CJ at CL and Fullerton J agreeing) in CL v The Queen [2014] NSWCCA 196.

2. On 20 July 2011, the applicant pleaded guilty to five offences. He was sentenced for those offences, and four additional matters recorded on three Form 1 documents. Adamson J included the following table in her judgment relating to the applicant’s appeal to the Court of Criminal Appeal which sets out all of the offences for which the applicant was sentenced and the indicative sentences given by his Honour, the sentencing judge:

Count No	Section of	Offence	Maximum Penalty	Indicative Sentence (after reduction of 15% for plea)
1	S 111(2) Crimes Act 1900	Aggravated enter dwelling house with intent to steal (in company) on 4 December 2003	14 years	2 years 18 months
Form 1	S 188 Crimes Act 1900	Receiving some of the victim's money	10 years	3 years 6 months
2	S 111(2) Crimes Act 1900	Aggravated enter dwelling house with intent to steal (in company) on 22 July 2004	14 years	3 years and 6 months
Form 1	S 178BA(1) Crimes Act 1900	Dishonestly obtaining a benefit by deception being some of the victim's money	5 years
3	ss 117, 308C(1) Crimes Act 1900	Unauthorised accessing of a computer function (the police "COPS" computer system) with intent to commit larceny on 23 September 2004	5 years	2 years
4	S 249B(1) Crimes Act 1900	As an agent of the Crown, corruptly receive benefit on 24 September 2004, involving a person suspected of being in possession of child pornography	7 years	3 years
5	S 107(1) Police Integrity Commission Act 1996 (NSW)	Give false evidence to the Police Integrity Commission at a hearing on 8 October 2004	5 years and/or 200 penalty unit fine	2 years
Form 1	Ditto	Two further charges of same.	Ditto

3. The applicant was sentenced to a total aggregate sentence of 7 years 6 months imprisonment. The non-parole period was 4 years 6 months, representing 60% of the head sentence. The applicant will be eligible for release on parole on 28 September 2016.

4. The applicant applied for leave to appeal against his sentence to the CCA on the basis of six grounds as follows:

“1.   His Honour erred in not properly taking into account the extra curial punishment suffered by the applicant;

2.   His Honour erred in not properly taking into account the extent of delay within the proceedings;

3.   His Honour erred in his consideration of matters irrelevant to sentencing by having regard to factual errors and failing to have regard to omitted facts;

4.   His Honour erred in not properly taking into account the extent of assistance given by the appellant to authorities and applying an overall reflective discount;

5.   His Honour erred in failing to apply proper and correct principles of parity in respect of co-offenders; and

6.   The sentence is manifestly excessive.”

5. The Court allowed leave to appeal but dismissed the appeal, finding that none of the six grounds were made out.

6. The applicant in his present application does not press the issue of delay or the manner in which the issue of assistance was dealt with by the sentencing judge (Grounds 2 and 4 in the CCA appeal). The remaining grounds are linked, with the exception of Ground 1. The applicant’s contention is, broadly, that the sentence he received was the result of the sentencing judge proceeding on an incorrect factual basis (Ground 3 in the CCA appeal). This is said to have meant that his overall criminality was assessed as higher than it would have otherwise been, which in turn resulted in a sentence which was manifestly excessive (Ground 6 in the CCA appeal). The alleged factual errors are said by the applicant to have also infected the sentencing judge’s approach to the question of parity (Ground 5 in the CCA appeal). The crux of the applicant’s claim is that the sentencing judge relied upon a document tendered at the sentence hearing by the Crown entitled “Agreed Facts on Sentence” which was not, in fact, what had been agreed to. In his present application the applicant also asserts failure by the sentencing judge to take into account extra-curial punishment, namely, the loss of the applicant’s family home (Ground 1 in the CCA appeal).

7. Applications under s 78 CAR Act

8. Part 7 of the CAR Act is entitled “Review of Convictions and Sentences”. Section 78 appears under Division 3 of that Part and provides:

78 Applications to Supreme Court

(1)   An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2)   The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

9. Section 79 is in the following terms:

79 Consideration of applications

(1) After considering an application under section 78 or on its own motion:

(a)   the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b)   the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2)   Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3)   The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a)   it appears that the matter:

(i)   has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii)   has previously been dealt with under this Part or under the previous review provisions, or

(iii)   has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv)   has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b)   the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A) The Supreme Court may defer consideration of an application under section 78 if:

(a)   the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

(b)   the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

(c)   the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(3B)   This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from:

(a)   the fact that the convicted person was:

(i) questioned under section 24 of the Crime Commission Act 2012, or

(ii) required under section 24 or 29 of that Act to produce a document or thing, or

(b)   either or both of the following:

(i)   evidence obtained directly from that questioning or requirement,

(ii)   any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing.

(4)   Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5)   The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).

10. In accordance with s 79(4), proceedings under the section are not judicial proceedings. They are, rather, in the nature of inquiries and the Court performs an administrative act in considering the application: Application of FD [2015] NSWSC 285 at [4] (Garling J); Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 per Johnson J at [5] referring to Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 [124].

11. Part 7 of the CAR Act is remedial legislation which was designed to overcome injustices which may occur in the administration of criminal justice: Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW [2006] NSWCA 172; 66 NSWLR 151 at 154 [5], 155 [8] (Spigelman CJ); Milat, Ivan Robert Marko – Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 at [11] (Johnson J).

12. Section 79(2) is a precondition to the exercise of the power in s 79(1) to take further action in relation to the application. In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001, supra, Johnson J set out the following principles applicable to applications made under s 78:

“6 The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].

7   Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19].

8   There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9].

Some Other Features of the Jurisdiction

9 The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.

10 The jurisdiction which a judge is exercising under Part 7 Crimes (Appeal and Review) Act 2001 is an administrative function which may be activated when the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence. The powers available under s.79 are limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal. They do not extend to a power to quash convictions or direct acquittals (as the Applicant sought in this case).

11 The nature of the jurisdiction under Part 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal. To invoke the fresh evidence rule at the ss.78-79 stage (as the Crown submissions of 30 November 2006 suggested by reference to R v Ion (1996) 89 A Crim R 81 at 93-94) does not sit well with the function being performed. In decisions concerning applications under s.475, it was observed that the fresh evidence rule had no application: Application of Esposito at page 2; Application of Visser at page 3.

12   If the judge refers the case to the Court of Criminal Appeal, however, that Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912: s.86 Crimes (Appeal and Review) Act 2001. On an appeal following referral, the test governing the reception of new and fresh evidence on appeal is applicable: R v Johns (2000) 110 A Crim R 149 at 151-153 [4]-[10], 165-169 [41]-[58]; R v Pollock [2005] NSWCCA 316 at [2]-[3], [24]ff.”

13. The principles referred to by his Honour in Holland have been frequently adopted in relation to s 78 applications: See eg Allan – Application for Inquiry into Conviction and Sentence pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2012] NSWSC 1596 at [5]; Skaf, Bilal – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 at [19]-[22]; Application of Victor Makarov Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2013] NSWSC 1468 at [5]; Application by Roseanne Beckett pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1773 at [16]; Application by Ivan Robert Marko Milat pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2014] NSWSC 434 at [7]; Application by Alarn Scott McCormick pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2015] NSWSC 708 at [5]; Application of FD [2015] NSWSC 285 at [4]. They are applicable to the present case. I am required to consider the application and the material relied upon by the applicant and whether a sense of unease or disquiet arises in relation to the sentence imposed.

14. Background

15. The applicant joined the New South Wales police force in 1989. In 1992 he sustained a back injury at work for which he underwent laminectomies in 1999 and 2001.

16. In December 2000 he became a Detective Sergeant at Burwood Local Area Command. Prior to this he had received a number of awards for his work which led the sentencing judge to observe that he had “clearly earned the respect and admiration of his colleagues and senior officers” (ROS 3). The offending conduct occurred between 4 December 2003 and 8 October 2004 while the applicant was a Detective Sergeant.

17. As noted above, a key concern in this application is whether the sentencing judge proceeded on an incorrect factual basis in considering the offences and their gravity. This arises from the submission by the applicant that the “Agreed Facts” relied on by his Honour were not agreed and were inaccurate. As such, it is useful to consider the facts surrounding each offence as apparently understood by his Honour, noting that some facts are disputed by the applicant. A number of names of offenders, witnesses and victims in the District Court and Court of Criminal Appeal proceedings were suppressed in those proceedings.

Count 1: Aggravated Enter of Dwelling House with Intent to Steal and Form 1 Matter (Receiving Stolen Property)

18. His Honour summarised the facts as follows at ROS 3-4:

“The first offence occurred on 4 December 2003…This offence was committed with a former police officer and an associate Chris Walker and X. Licensing Police had gained information in the course of a firearms inspection that Mr L had a safe that contained, amongst other things, large amounts of cash, apparently being the takings of Mr L’s restaurant. Mr Laycock told (the others) about this information and they agreed to carry out a robbery on Mr L’s premises. To avoid being recognised Mr Laycock waited in a van while Christopher Walker went into the premises pretending, with X, to be police officers. They successfully gained entry on that pretext as well as persuading Mr L to open the safe. They informed Mr L that they were going to take the money that was in the safe to check the serial numbers and then left. The proceeds were shared between the three…”

Count 2: Aggravated Enter of Dwelling House with Intent to Steal and Form 1 Matter (Obtaining a Benefit by Deception)

19. His Honour summarised the facts surrounding the second offence as follows at ROS 4:

“The second offence occurred on 22 July 2004. Police had mounted an operation called Cobalt, using, amongst other things, telephone interception warrants. This covert intelligence revealed a plan by Mr Laycock, Christopher Walker, X and two others [including H] to take money from a criminal called AH. Further observations and intercepts confirmed this plan in regard to AH’s premises, which firmed up to take action on 22 July 2004. On the pretext of executing a search warrant on the premises they confronted him as he left his car in the car park and gained entry to (the) premises. A sum of $20 000 cash was located. After a phone call was made they pretended that a TV in the premises was stolen property and AH was asked how much he was prepared to part with. Mr Laycock and X said “at least 10.” Mr Laycock waited outside while X returned to the unit. Two security guards, one of whom was an undercover police officer, spoke to Mr Laycock, who said that he was there on police business and produced police ID. X returned with $11,000 that he had obtained from AH. The five then left the area and the money was later divided after X had taken $1000 out of that amount which he retained. X gave Mr Laycock an additional $800 from the $1000 retained by him. The Form 1 offence relates to the obtaining of that benefit by deception.”

20. The reference to “at least 10” in the passage is taken to mean “at least $10,000”. It is apparent that through Operation Cobalt the police were at this point supervising the actions of the applicant and his co-offenders.

21. It is again noted that the applicant disputes certain of the facts stated by his Honour the sentencing judge.

Count 3: Unauthorised Accessing of Computer Function with Intent to Commit a Serious Indictable Offence of Larceny

22. His Honour detailed the third count on the applicant’s indictment at ROS 5-6 as follows:

“The third offence occurred on 23 September 2004… Mr Laycock and his associates devised plans to take money from various individuals. One target was LT, who police suspected was running a fraudulent immigration business. Mr Laycock obtained information about her from the police computer system, COPS. Christopher Walker had introduced Mr Laycock to a person who I will refer to as B in 2004 and he acted as a go-between between he and Mr Laycock. Mr Laycock and B discussed a number of plans and targets, some of which involved large sums of money. Mr Laycock said that he could supply names and addresses and other information for the purpose of B and others standing over those persons for reward pretending to be police officers.

On 8 September 2004 Mr Laycock was involved with B discussing an operation. Persons referred to as “the Old Man” and the “Australian couple” were mentioned, but Laycock told B that they had to do LT first. Mr Laycock accessed the COPS system on 23 September 2004 which showed that LT was to attend court on 29 September 2004. He also discussed her case with the officer in charge of her matter. Mr Laycock met B and said they were to confront the Asian woman at her home. He would bring someone, as would B. Discussions with an informer in late September 2004 showed that Mr Laycock and the person called H were desperate for money and again discussed possible sources for obtaining it.

On 27 September 2004 Mr Laycock phoned B to arrange a meeting at 10.30am where it was planned to approach the Asian woman, LT, on 28 September 2004 at her home. A further meeting was arranged for 5pm on 28 September 2004, but Mr Laycock did not attend. He had been served with a summons to give evidence at the Police Integrity Commission for 8 October 2004 because investigators were concerned at what was being planned in regard to [suppressed] and decided to forestall it.”

Count 4: Receiving a Corrupt Reward

23. The sentencing judge set out the facts surrounding the fourth offence, which occurred on 24 September 2004 and was referred to as the “Regpay Matter” as follows:

“In early 2004 intelligence revealed information about child pornography and the New South Wales Police, amongst others, carried out a number of investigations. Mr Laycock was involved in regard to two suspects and was given information about them. On 24 September 2004 Mr Laycock was observed with a person called H. They went to one of the suspect’s houses. H, pretending to be a police officer, went to the front door and persuaded the suspect to come with him to a laneway where they met with Mr Laycock who also said he was a police officer. The police investigation of the suspect was discussed and he was shown some documents. Mr Laycock and H then solicited money from him and he, that is the suspect, offered $4000. Arrangements were made for payment in cash outside some flats in Concord. Mr Laycock and H attended at 10am. H searched the suspect for listening devices. The suspect handed over $3900 and was advised how to get rid of the evidence on his computer and deal with any questioning. Conversations with a person who is called A, both before and after, confirmed a plan to rip off child pornography suspects, and the payment by the suspect was confirmed by both Mr Laycock and H on the intercepts.

On 25 and 26 September 2004 the suspect got rid of all incriminating evidence by various means. On 27 September 2004 a search warrant was executed on his premises by police other than Mr Laycock, but nothing was found. The suspect appeared calm and unsurprised by the visit. He was not charged, but later made an induced statement to the Police Integrity Commission.” (ROS 6)

Count 5 and Two Form 1 Matters: Lying to Police Integrity Commission

24. The applicant appeared before the Police Integrity Commission on 8 October 2004. He denied dividing up money with Mr Walker, denied dividing up money with X and denied having a corrupt relationship with the co-offender referred to as H. He later recanted and admitted criminal involvement with the mentioned co-offenders. The applicant was dismissed from the police force shortly after.

Remarks on Sentence

25. At the sentence hearing on 29 March 2012 a bundle of documents was tendered by the Crown and marked Exhibit 1. This bundle included a table entitled “Summary of Offences” and a 17 page document entitled “Facts on Sentence” (the “Agreed Facts”). Exhibit 2 was tendered by Greg James QC of Counsel for the applicant and included reports of Dr John Roberts dated 23 October 2011 and Dion Bisa dated 20 August 2003, a variety of reports and documents going to the applicant’s character and his service to the police force and some material on protective custody. Exhibit 2 also contained a 30‑page document entitled “Facts on Sentence”. I will deal further with the manner in which these documents were tendered below.

26. The sentencing judge at ROS 2 identified the documents he had before him for the purpose of sentencing. He stated:

“There is a detailed agreed statement of facts, Exhibit 1 in these proceedings, together with the Crown’s submissions. Mr Laycock has no criminal record. Other material before me is the defence bundle, Exhibit 2, containing written submissions on sentence, a report of 23 October 2011 by Dr Roberts, a psychiatrist, a report of 20 August 2003 by Mr Beazer [sic – Bisa], a psychologist, material as to prior good character, official Police Service Commendations, a Judicial Commission article on protective custody and a personal background statement by Mr Laycock, together with the family medical background.”

27. In considering the seriousness of the offence his Honour first observed that the offences would be “significant and serious” aside from the fact that the applicant was a police officer. It was observed at ROS 7 that the applicant had used a position of power and trust to facilitate the offences and that the offences were committed in circumstances where the “victims” were unlikely to complain “because of their own nefarious activities”. In relation to Count 4 his Honour noted at ROS 8 that the actions of the applicant and his co‑offenders had frustrated a police investigation into serious offences involving child pornography.

28. His Honour considered at ROS 8 that:

“…the most significant aggravating factor in Mr Laycock’s offending is the twofold breach of trust. Firstly, in regard to the community’s high expectation as to the integrity of the Police Force and its individual officers and secondly, in the fundamental breach of his duties and responsibilities as a police officer both to other police officers, to the Police Force generally as well as to the public.”

29. Other factors considered by his Honour to increase the gravity of the offences were that a significant amount of planning went into the first four counts, and that the offending was part of a planned and organised criminal undertaking (ROS 11).

30. In terms of the applicant’s subjective case, the sentencing judge relied primarily upon the report of Dr Roberts which he referred to at ROS 9. The report indicated that Mr Laycock had expressed frustration about being deskbound at work because of his back injuries and that he was frustrated with his superiors and “hated to attend work”. The applicant had told Dr Roberts that the reason for his offending was extreme financial difficulties. At ROS 10 the sentencing judge referred to the contents of the report and stated:

“Whilst that may provide an explanation for his offending it cannot mitigate it in any way and certainly does not explain the lengths he was prepared to go to in order to achieve financial reward.”

31. At ROS 11 his Honour referred to the applicant’s prior good character and lack of criminal record. He acknowledged the submission by counsel for the applicant that he was unlikely to re-offend and had good prospects of rehabilitation. It was later stated at ROS 12 that the Crown “concedes his prior good character, his strong family and community ties and prospects of rehabilitation”.

32. His Honour also considered the probability of the sentence being served in custody noting the concession by the Crown that the applicant’s time in custody in segregation would “be more onerous than someone within the general prison population”. His Honour, however, went on to observe:

“In some respects, of course, that factor is a two edged sword because most police officers would realise that if they commit a crime and end up in custody their position is going to be substantially different to a similar offender who commits the same offence who is not a police officer.” (ROS 12)

33. The question of delay was identified as relevant by his Honour at ROS 11 where he stated “I take into account the delay in these matters reaching the stage that they have today in accordance with what was said by Street CJ in R v Todd (1982) 2 NSWLR 517 at 519…” and at ROS 12 where his Honour set out the relevant dates in the proceedings against the applicant.

34. The issue of parity was also considered by the sentencing judge. His Honour stated at ROS 13:

“There does not appear to be a meaningful degree of parity between the totality of their (the co-offender’s) offending and the totality of Mr Laycock’s offending. However, I am mindful of the sentences that they received and the parts that they played in regard to Mr Laycock’s offending as well as to the recent High Court decision of Green v R [2011] HCA 49. In regard to that case, objectively it is difficult to see that a realistic comparison can be made between Mr Laycock’s offending and the offending of (the others) particularly having regard to the judgment of Finnane DCJ of 24 May 2010 in regard to Mr Walker which is the only one I have.”

35. The sentencing judge referred to a number of cases also involving offending by police officers but observed that:

“As far as I can tell the pattern of sentencing for such offences, if one exists, has not changed since 2004. I say, ‘if one exists’, because this type of offending is not really conducive to any sort of pattern of sentencing.” (ROS 13)

36. After outlining some cases his Honour went on to say “These cases are of interest in regard to the principles they espouse rather than any comparability of either offending or sentencing”. The principles espoused brought to light the increased severity of offences committed by police officers exploiting their public office and rank to gain advantages.

37. His Honour allowed a 15% discount for the applicant’s guilty plea and noted that although there was a willingness by the applicant to assist authorities, the utilitarian value of the assistance provided was negligible. It is also apparent from his Remarks that his Honour considered the principle of totality (ROS 16) and reference was made to the likelihood of public opprobrium (ROS 12). The fact that the applicant would be precluded from certain jobs upon release was noted at ROS 11.

38. His Honour considered whether a finding of special circumstances should be made at ROS 15. Although his Honour did not expressly state his finding it is evident from the ratio of the non-parole period to the total sentence imposed (60%) that a finding of special circumstances was made.

39. I have referred to the indicative sentences for each offence imposed by the sentencing judge above at [2]. As noted above, the applicant was sentenced for a total of 7 years and 6 months with the non-parole period being 4 years and 6 months.

The CCA Appeal

40. The grounds of appeal relied upon by the applicant before the CCA are set out above at [4]. The appellant relied upon written submissions dated 16 July 2014. The Crown relied upon written submissions dated 5 September 2014. The CCA hearing took place on 19 September 2014 on which date the applicant appeared in person. As previously noted, the appeal was dismissed. Adamson J (with whom Hoeben CJ at CL and Fullerton J agreed) dealt with each ground and gave reasons for dismissing each (which I need not reproduce here).

Submissions

Applicant’s Submissions

41. In relation to his application under s 78 CAR Act the applicant relied upon written submissions (28 pages) contained within a folder of material relating to his application.

42. The folder of documents, in addition to the written submissions, contained a number of documents including: (i) copies of transcript of proceedings before the sentencing judge dated 29 March 2012; (ii) the sentencing judge’s Remarks on Sentence dated 5 April 2012; (iii) a copy of the judgment of the Court of Criminal Appeal delivered on 29 September 2014; (iv) the transcript of the hearing before the Court of Criminal Appeal dated 19 September 2014; (v) Exhibit 1 comprising material before the sentencing judge, and (vi) Exhibit 2 entitled “Sentencing Material” also tendered at the sentence hearing.

43. In the applicant’s written submissions in support of the application particular attention was given to the following matters (in the order in which they were addressed):

Ground 3 – Alleged errors in fact‑finding

Ground 5 – Alleged disparity between co-offenders

Ground 6 – Alleged manifest excess

Ground 1 – Alleged failure to take into account extra‑curial punishment

44. The applicant stated that his submissions in respect of the application are “referenced in accordance with the Grounds of Appeal relied upon in the judgment of CL v R [2014] NSWCCA 196” (Applicant’s Submissions at p 3).

45. I turn to the individual grounds relied upon by the applicant.

Ground 3 – Alleged Errors in Fact-Finding

46. The applicant submitted that the facts relied upon by Williams DCJ were not the Agreed Facts. He contended that Adamson J, a member of the Court of Criminal Appeal which heard his appeal, erred in finding that there was no discernible basis upon which the Agreed Facts, Exhibit 1, ought not to have been accepted by the sentencing judge, or on which their correctness ought to be revisited on the application (Applicant’s Submissions at p 1).

47. The applicant’s submissions then set out a history as to what was said to have been the process or means by which an agreed set of facts was arrived at by himself, his representatives and the Crown (Applicant’s Submissions at pp 4-6).

48. The applicant acknowledged that the relevant references by him to the facts, and now made in support of his present application, were referred to in his appeal to the Court of Criminal Appeal (Applicant’s Submissions at p 6).

49. He argued that he had sought to persuade that Court that although the ingredients of the offence had been made out, the objective seriousness had been exacerbated by the inclusion of material which was not factually correct. He submitted that this had not been appreciated by Hoeben CJ at CL who presided at the hearing of his appeal (Applicant’s Submissions at pp 6-7).

50. A further submission was made by the applicant that:

“…this omission to consider this issue had the effect of denying the appellant the right to have his appeal dealt with to finality, in that the Court did not make a specific ruling on this ground of appeal” (Applicant’s Submissions at p 7).

51. The applicant then set out what he contended were the factual errors apparent in Williams DCJ’s Remarks on Sentence (Applicant’s Submissions at pp 7-22).

52. I have examined the submissions made in respect of each asserted error but do not here reproduce in detail the individual comments or submissions made, in particular, at pp 7-9 of the applicant’s Written Submissions. It is sufficient to state that the effect of the submissions made was that an inaccurate account of his role was given and that this heightened his level of criminality which in turn impacted upon the sentence imposed.

53. In addition, the applicant asserted that there had been further “factual errors” which had not been the subject of his written submissions in the proceedings before the Court of Criminal Appeal but which he submitted constituted an error in sentencing. He asserted that such errors had found their way into the document “Exhibit 1” relied upon by the sentencing judge (Applicant’s Submissions at p 9).

54. I have read the submissions made in respect of such alleged factual errors. The ultimate submission was that the alleged errors significantly impacted on the facts adopted in the sentencing process and these, it was argued, formed the foundation of a miscarriage of justice and a flawed sentencing process (Applicant’s Submissions at p 22). The applicant stated in his submissions, at p 22, that he:

“…merely seeks that the court intervene to correct this error on face value.”

Crown’s Submissions

55. The Crown relied upon its written submissions dated 12 February 2015.

56. The Crown’s primary submission was that the application largely repeats submissions raised in support of the grounds relied upon by the applicant before the Court of Criminal Appeal, in particular, the third, fifth, sixth and first grounds of appeal. The Crown submitted that in these circumstances there is no merit to the application.

57. The Crown further submitted:

“… the applicant appears unwilling to accept the CCA’s determination, contending that the CCA erred in dismissing these grounds of appeal. The applicant was entitled to apply for special leave to appeal to the High Court from the CCA’s judgment, but no such application was made. The applicant identifies no special facts or circumstances that justify the taking of further action under Part 7 of the Act. Rather, he impermissibly seeks to use s 78 of the Act as another avenue of appeal: Holland at [9] and Application of Milat (2005) 157 A Crim R 565 at 574.” (Crown’s Written Submissions at [19])

58. The Crown submission accordingly was that the Court should refuse to consider or otherwise deal with the application under s 79(3) of the Act upon the basis that the matters it raises have previously been dealt with by the CCA or could have been the subject of an application for special leave to the High Court, and that there are no special facts or circumstances that justify the taking of further action: Crown’s Written Submissions at [20].

58. The Crown, however, sought to address the particular submissions made by the applicant in the event that the Court took the view that it was appropriate to consider the merits of the application. In respect of the matters relied upon by the applicant, the Crown submitted that they do not raise any doubt or question as to any mitigating circumstances in the case or as to any part of the evidence.

59. The foundational submission made on behalf of the Crown was that the Agreed Facts document (Exhibit 1), contrary to the submissions of the applicant, was a statement that contained the relevant facts for sentencing agreed upon by the parties.

60. Whilst the applicant disputed the Agreed Facts and submitted that they contained a “range of errors”, the Crown observed that the applicant had made lengthy written submissions on this question before the Court of Criminal Appeal, parts of which are replicated in the present application (in particular, those appearing at pages 12-15 of the Applicant’s Written Submission dated 16 July 2014).

61. The Crown extracted from the judgment of Adamson J, observations made by her Honour at [43]-[46] on the question of the Agreed Facts.

62. These paragraphs of the judgment, the Crown contended, addressed fully the applicant’s submissions regarding the alleged errors in fact‑finding. The Crown submitted that the matters asserted by the applicant were considered and dealt with by the Court of Criminal Appeal in dismissing his appeal against sentence: Crown’s Written Submissions at [24].

63. The Crown additionally submitted that if the Court was minded to consider the merits of the ground then in that event the Crown’s position was that the applicant’s claims do not give rise to unease or a sense of disquiet in allowing his sentence to stand: Crown’s Written Submissions at [25]. Reference in this respect was made to the exchange between Senior Counsel for the applicant and the sentencing judge recorded in the transcript concerning the Agreed Facts.

64. I consider it is desirable to reproduce in these reasons relevant extracts of the discussion before the sentencing judge (transcript of 29 March 2012) concerning the Agreed Facts document (Exhibit 1) as follows:

“HIS HONOUR:   The facts that I have, Mr Crown, are sort of in a strange format.

BOWERS:   Your Honour, the person XX, his name appears mentioned starting at p 15 of those facts.

HIS HONOUR:   I’ll hand back to you the statement of facts that I have.

BOWERS:   It might be that your Honour has an earlier version of that document. There was some refinement.

HIS HONOUR:   I’ll hand back the two documents that were—(T 3)

JAMES:   Your Honour, I should indicate it was more than refinement. One of the submissions we will be making concerns the timing of today’s hearing and how there has been a very lengthy process in relation to charges and in relation to facts, and I’m worried that what your Honour has seen might be an earlier version. It’s not likely to--

HIS HONOUR:   Let me say this, there is a very lengthy document there, a statement of facts, which I haven’t read. All I have read was the summary. I don’t know where the summary came from, but that appears to be some sort of submissions made by the Crown at some stage, which is a much briefer document, it’s only a few pages.

JAMES:   None of that is going to cause your Honour any problem in the upshot because essentially we’re relying on the principles relating to focusing on the facts relevant to the relevant offences. We’ve prepared the written submissions on that basis. I don’t think there’s going to be any real issue between us on the facts.

BOWERS:   Your Honour, I have a different document to tender today. This is a document that was handed up some time ago. In some ways I think it’s got material that actually is a duplicate. I don’t know how that has occurred, but in any event, your Honour, perhaps I could hand up the document on which we’ve settled. I’ll hand that up now, the facts in relation to the matter of Laycock. Your Honour, it’s a 20 page document.

HIS HONOUR:   All right.

JAMES:   It’s different to the one we’ve got.

HIS HONOUR:   Is it possible to go through the facts without handing them up at this point in time, to go through the facts back on the computer or wherever, and, to use a new expression, redact out of the facts the names of the persons you are seeking to suppress, because I have got no doubt that the press at some stage – well people are entitled to know the facts from which this-- (T 4)

…

JAMES:   Your Honour, the facts that my friend is now handing up are probably exactly the same, but for some difference that it causes them to extend for a few lines longer than the one that we’ve got. So I’m speedily having my instructing solicitor check over the facts to make sure that something hasn’t crept back into the final product that was dealt with during the lengthy process of dealing with them otherwise.

DALEY:   I think it’s just a setting out change, but certainly my friend should check. (T 5)

…

JAMES:   Your Honour this matter’s likely to take a while. There’s a great deal of reading. Would it be helpful if we provided now our written submissions to – my instructing solicitor is still going through the statement of facts. What seems to have happened is there’s been a reformatting. I don’t think, as far as we work out so far, it’s likely to lead to any material content change.

CROWN PROSECUTOR:   I can assure my friend there were no material changes to the contents of the document, it’s just a setting out matter your Honour. (T 7-8)

JAMES:   … your Honour we’d now verify that the statement of facts is simply a reformatting of the already agreed facts and the facts are as agreed. Secondly, my friend’s just provided a submission on sentence. On page 11 at about point 8 in the paragraph commencing ‘Question of Delay and Plea of Guilty’.” (T 10)

Consideration

The Question of the Agreed Facts

66. The applicant’s contentions in relation to the question of the alleged erroneous fact‑finding by the sentencing judge, in essence, assert:

1. That the sentencing judge was in error in relying upon the Agreed Facts (Exhibit 1) when making findings of fact in relation to his culpability in respect of the offences to which he entered guilty pleas.

2. That the Court of Criminal Appeal erred in finding that there was no basis on which the Agreed Facts ought not to have been accepted by the sentencing judge.

67. The applicant’s contentions in respect of these matters are, with respect, misconceived. As to (1), the transcript of evidence (reproduced at [63]) records discussions with the applicant’s senior counsel, Mr James QC, which confirm that Mr James was afforded the opportunity to satisfy himself as to the accuracy of the Agreed Facts, Exhibit 1. Mr James is recorded as having indicated, in the presence of the applicant, that Exhibit 1 accurately recorded the facts that had been agreed upon with the Crown for the purpose of the sentencing hearing, indicating that the facts therein were “… the facts agreed”: T 29 March 2012, at p 10:4-9.

68. As to (2), the issue was fully canvassed in the Court of Criminal Appeal at the hearing of the appeal in that Court on 19 September 2014. As noted in the judgment of Adamson J at [43]:

“The facts by reference to which an offender is sentenced must generally be either proved to the requisite standard, admitted or agreed: R v Olbrich [1999] HCA 54 ; 199 CLR 270; Weininger v R [2003] HCA 14 ; 212 CLR 629; Gas v R; SJK v R [2004] HCA 22 ; 217 CLR 198 at [30]. The Agreed Facts were tendered by consent on the basis that they were agreed. As such they constituted the basis on which the applicant was to be sentenced. The sentencing judge was both entitled, and obliged, to sentence on the basis of the Agreed Facts.”

69. As noted by the Crown, there was no application by the applicant for Special Leave to appeal the judgment of the Court of Criminal Appeal to the High Court.

70. There is, in my opinion, no merit in the applicant’s ground alleging errors in fact-finding by the sentencing judge and there is no basis for asserting error in the judgment of Adamson J.

71. Having considered the applicant’s written submissions asserting error in relation to discrete factual references, I am satisfied that none of the matters raised in his submissions were capable of impacting upon the sentencing determinations, including, in particular, the aggregate sentence imposed. It has been necessary to consider these particular submissions in the context of what were, objectively, extremely serious offences. As discussed below, having regard to the objective seriousness of each of the offences committed by the applicant in breach of trust as a police officer, and taking into account all relevant subjective factors, the individual indicative sentences and the aggregate sentence imposed, were, in my assessment well within the sentencing judge’s discretion.

72. I proceed, notwithstanding the conclusion I have expressed to nonetheless consider some of the specific allegations of factual error advanced by the applicant in support of his application.

(i) The Second Offence: 22 July 2004

73. The sentencing judge as pp 4-5, summarised the factual circumstances constituting the second offence (see [17] above). In the course of doing so, reference was made to the fact that $20,000 in cash was located at the subject premises and that was followed by discussion involving the applicant and his co-offender as to money to be paid to them. The sentencing judge then recorded:

“… the five then left the area and the money was later divided after Mr X had taken $1,000 out of that amount which he retained. Mr X gave Mr Laycock an additional $800 from the $1,000 retained by him. The Form 1 offence relates to the obtaining of that benefit by deception.” (p 5)

74. This matter was addressed in the applicant’s Written Submissions at p 7. He there asserted that no additional money was received by him and there was no mention of this fact in the “facts” forming Exhibit 2 (prepared by his legal advisors) although it was mentioned in the Agreed Facts, Exhibit 1.

75. The statement in the Remarks on Sentence that Mr Walker, the co‑offender, gave the applicant an additional $800 from the $1,000 retained by him, it was asserted, was accordingly said to have been an error.

76. The applicant asserted that an inaccurate account of his role in respect of this aspect (the $800) was given and that this “undoubtedly heightened the level of criminality”. It was stated that the “clear indicator was that the receiving of money (as well as the actual amounts) was a significant consideration”: Applicant’s Submissions at p 7.

77. This matter suffers from the same problem concerning the Agreed Facts, Exhibit 1, discussed above. The reference in the Agreed Facts to the payment of the $800 does not, for the reasons earlier stated, constitute a basis for asserting error by the sentencing judge. Exhibit 1 was accepted as having set out “the facts” for sentencing purposes. I do not here repeat what has been said about Exhibit 1 above.

78. The applicant, in entering a guilty plea to the offence in question, had asked that the additional matter on the Form 1 (namely his receipt of a share of the $10,000 which was stolen and divided by five, as well as the additional $800 received by him) be taken into account on sentencing.

79. I accept the Crown’s submissions that in the context of the applicant’s share of the $10,000 the amount of $800, in contrast, is a matter of comparatively minor significance. I do not, in any event, as I have stated, consider that error has been established. In the circumstances, there is no basis for any unease or sense of disquiet as to the applicant’s aggregate sentence.

(ii) The Third Offence: 23 September 2004

80. The second matter raised by the applicant concerns a statement made by the sentencing judge in his Remarks on Sentence at p 6 in relation to the third offence that occurred on 23 September 2004. Reference was made by his Honour to a discussion on 8 September 2004 between the applicant and the person identified as “B” in which the “operation” in question was discussed. The sentencing judge observed:

“… Mr Laycock met B and said they were to confront the Asian woman at her home. He would bring someone, as would B. Discussions with an informer in late September 2004 showed that Mr Laycock and the person called X were desperate for money and again discussed possible sources for obtaining it.” (p 6)

81. Again, the applicant relies upon a statement to the effect that this fact, as to his discussions with an informant and desperation for money, was included in Exhibit 1 and not included in Exhibit 2. The applicant claims that he had sought the statement about that matter to be omitted from the Agreed Facts. He further alleges that the Crown consented to its removal but that it was not removed.

82. His contention was that the statement increased his level of criminality and implied desperation, planning and involving others in the commission of offences (conspiracy) which in fact did not form part of the basis upon which he was to be sentenced.

83. As detailed above, the offence committed on 23 September 2004, involved the applicant and his associates devising plans to take money from various individuals. One target was a person who police suspected was running a fraudulent immigration business. The applicant obtained information about her from the police computer system, COPS.

84. There is, in my assessment, no merit in the applicant’s assertion of error in relation to this matter. The sentencing judge was simply identifying an aspect that lay behind the motive for the applicant’s offending behaviour and this could not constitute a basis for a conclusion that the applicant had been sentenced on an incorrect ground or that the matter in question contributed to the already extremely serious nature of the offence in question. Any complaint or grievance on this aspect could not, in my opinion, have constituted a cogent ground of appeal against sentence.

(iii) The Fourth Offence: 24 September 2004

85. In relation to the fourth offence committed on 24 September 2004, (the “Regpay” matter) the sentencing judge set out the relevant facts reproduced above at [21]. The circumstances in which the applicant and his associates solicited money from one particular suspect and the offer of payment of $4,000 was set out in the Remarks on Sentence at pp 6-7. In that context the sentencing judge observed:

“… conversations with a person who was called A, both before and after, confirmed a plan to rip-off child pornography suspects, and the payment by the suspect was confirmed by both Mr Laycock and XX on the intercepts.” (p 7)

86. Again, the applicant asserts that the statement made by the sentencing judge in this respect was contained in Exhibit 1 but not in Exhibit 2. Again he asserted that he had sought its removal and the Crown allegedly consented to the same. He asserted that it was not removed and that it was factually incorrect.

87. The fundamental problem in the applicant asserting error in Exhibit 1 in relation to the above statement by the sentencing judge, suffers from the same problem as other factual errors identified, namely, that Exhibit 1 had been accepted as accurately recording the facts for sentencing the applicant for the fourth offence. This matter having been the subject of a ground of appeal to the Court of Criminal Appeal, there is no basis for the complaint now made by the applicant. The offence in question was itself objectively extremely serious. The objective seriousness of the offence is evident from the facts constituting it and, in my assessment, there was no error in fact-finding such as to provide a ground of complaint in the present application.

88. In his written submissions in relation to the fourth offence, the applicant also took issue with a remark made by the sentencing judge at p 8 of his Remrks relating to the Regpay matter where his Honour referred to one of the persons target by the applicant and his associates as a “medical practitioner”.

89. The relevant passage in the Remarks on Sentence (p 8) is as follows:

“In the case of the Regpay matter not only did he corruptly solicit a benefit, but his and X’s actions frustrated a police investigation into potentially very serious offences involving child pornography and a medical practitioner.”

90. In the written submissions the applicant contended that the complainant in relation to the offence in question was not a “medical practitioner” but that he had a Doctorate of Science. The contention is that the “medical practitioner” was referred to in the Agreed Facts tendered by the Crown and was an error.

91. The submission was that the statement implies the protection of a person in a position of trust who may have had access to vulnerable persons and the general public at large. It was submitted that it increased the applicant’s criminality and attaches a “stigma” to the offence.

92. This point again encounters the same problem as to the Agreed Facts (Exhibit 1) referred to above.

93. In any event, the matter does not assume any significance having regard to the objective seriousness of the offence.

94. The factual findings made by the sentencing judge in respect of the fourth offence committed on 24 September 2004 (the Regpay matter), establish that the criminality involved a very high level of objective seriousness. The applicant’s conduct involved not only corrupt solicitation of a personal benefit but actions by him and others designed to frustrate police investigations into what his Honour appropriately termed “potentially very serious offences” involving child pornography. The fact that his Honour added the words “and a medical practitioner” in the context of the facts, in my opinion, adds little, if anything, to the otherwise extremely serious facts constituting the offence.

95. In summary, none of the factual errors asserted by the applicant are made out. The written submissions do not, in my opinion, raise any question of asserted error either in the sentencing process or in the proceedings in the Court of Criminal Appeal. The statements of fact to which the applicant takes exception were verified by the Agreed Facts, Exhibit 1 and it is evident that these facts were agreed to by the applicant’s counsel.

Alleged Disparity Between Sentences Imposed on Applicant and Co-Offender

96. The applicant has submitted that the Agreed Facts establish that the objective seriousness or gravity of his offending conduct was similar to that of the co-offender, Mr Walker.

97. This matter was the subject of a ground of appeal heard and determined by the Court of Criminal Appeal. The judgment of that Court noted the observations of the sentencing judge at [34] and [35] under the subheading “sentences imposed on co-offenders”.

98. Adamson J dealt with the ground (Ground 5) at [51] and [52]. There, the following observations were made:

“51   The applicant’s counsel accepted, correctly in my view, that there was no parity between the applicant on the one hand and Mr Walker and the other co-offender on the other because of the substantial difference between the offences with which they were charged. The practical effect of the principles of parity is diminished where different charges are laid (since this is a matter of prosecutorial discretion) or offenders are sentenced on the basis of a different factual substratum (whether agreed or otherwise): Green v R [2011] HCA 49 ; 244 CLR 462 at [30] which approved Jimmy v R [2010] NSWCCA 60 ; 77 NSWLR 540 at [203] per Campbell JA; see also Yousif v R [2014] NSWCCA 180 at [26]–[27] per Hoeben CJ at CL, Adamson and Bellew JJ agreeing.

52   The sentencing judge did, however, take into account both the sentences imposed on Mr Walker and also on the co-accused, although only the remarks on sentence in respect of the former were available at the applicant’s sentence hearing. The fifth ground has not been made out.”

99. I accept, as the Crown has submitted on this application, that the matter was dealt with by the Court of Criminal Appeal by dismissing Ground 5 and that there are no particular facts or circumstances now identified that would justify reconsideration or review of the matter. The Crown correctly observes at [37] of its written submissions that senior counsel appearing for the applicant conceded at the sentence hearing that there was “not a true, precise, parity equation” between the applicant and his co-offenders and that “the difference in charges [was] significant”. The argument presented was that the difference was “not so much as to produce an unacceptable disparity in treatment arising simply from a difference in treatment by the DPP”: Transcript of sentence hearing on 29 March 2012, at pp 15, 19.

100. The sentencing judge specifically noted that the co-offenders had pleaded guilty to substantially different offences and that objectively it was difficult to see any realistic comparison could be made between the applicant’s offending and that of his co-offenders. It was clear, however, that his Honour was mindful of the relevant parity principles, including those stated by the High Court in Green v The Queen [2011] HCA 49: Remarks on Sentence at p 13.

101. The applicant has not identified any basis for a conclusion as to any error either by the sentencing judge or by the Court of Criminal Appeal in relation to parity. The sentencing judge had specific regard to the role played by the co‑offenders in the applicant’s offending.

102. I am of the opinion that this ground is without merit.

Sentence Alleged to be Manifestly Excessive

103. The applicant addressed this ground at [98]‑[119] of his written submissions before the Court of Criminal Appeal in which he contended that the sentences imposed “in isolation of each other” are manifestly excessive. He submitted that the overall sentence should be considered in light of the “… accumulation that was exercised by His Honour”: Applicant’s Written Submissions before the CCA at [98]. In his submissions on this application, the applicant pressed the ground of manifest excess and contended that the CCA had not approached the ground properly.

104. I have earlier expressed the opinion that the indicative and aggregate sentence imposed by the sentence judge fell well within the sentencing discretion. His Honour had regard to all relevant objective and subjective factors.

105. The nature of the offences involved very serious breaches of trust by the applicant. As previously observed, the sentencing judge appropriately summarised the position as follows:

“As can be appreciated all these offences would be regarded as significant and serious without the fact that they were committed by a police officer. Mr Laycock used a position of power and trust within the Police Force to commit what are serious criminal offences in the guise of being a police officer, when in the circumstances set out in the facts he had no entitlement to operate in that way. The targeted victims were in most cases persons who would be unlikely to complain about what was going on, because of their own nefarious activities”: Remarks on Sentence at pp 7-8.

106. A little later his Honour observed:

“The most significant aggravating factor in Mr Laycock’s offending is the twofold breach of trust. Firstly, in regard to the community’s high expectation as to the integrity of the Police Force and its individual officers, and secondly, in the fundamental breach of his duties and responsibilities as a police officer both to other police officers, to the Police Force generally as well as to the public. The community rightly looks to the integrity of the Police Force to uphold and protect the law, not to break it …”: Remarks on Sentence at p 8.

107. Adamson J at [53]‑[66] of her judgment considered the matters relevant in assessing the ground of manifest excess, which requires an applicant to establish that the sentences imposed were unreasonable or plainly unjust, having regard to the principle that there is no single “correct” sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325.

108. Her Honour observed at [56] in particular, that there was no error in respect of the first count and that at the time of that offence the applicant was a serving police officer and was the “architect” of the offence.

109. Her Honour addressed the issue of using statistics in respect of the third count at [57], noting that they were of a limited value generally in sentencing and that they were particularly inapposite in the applicant’s case where his moral culpability depended on his position and the surrounding facts.

110. Her Honour dealt with an argument put by the applicant that his conduct was being monitored, that the offending conduct was intercepted before it could run its intended course. Her Honour, understandably observed:

“… that he was thwarted by diligent policing does not operate in his favour on sentencing.” (at [58])

111. At [59] her Honour noted that the Agreed Facts indicated the extent to which the applicant was “… the mastermind of the criminal conduct as well as the extent to which he used the knowledge of the system he had gained in the course of his duties as a police officer …”. Her Honour noted that his offending conduct as a whole involved an abuse of his position as a police officer and this had tended to corrupt the system.

112. Her Honour concluded that the sentence imposed was not excessive and appropriately reflected the criminality of the offending conduct. Her Honour at [66] addressed the issue of accumulation but noted that there was also a substantial degree of “implicit concurrence”.

113. Again, the applicant’s submissions in the present application seek to establish error in the judgment of Adamson J (and of the Court of Criminal Appeal). However, as has already been observed, no application was made by him for Special Leave to Appeal the judgment of that Court to the High Court.

114. Many of the arguments sought to be advanced on this application were considered and dealt with by the Court of Criminal Appeal. In other words the applicant has had a full opportunity to pursue and ventilate such matters at the appellate level. I accept the Crown’s submissions that no special facts or circumstances have been raised in this application that would justify the taking of any further action.

115. Accordingly, in relation to these specific matters raised by the applicant, I consider that they are not matters that contain merit which would cause any unease or raise any question or doubt as to the appropriateness of the aggregate sentence imposed and they should not be further dealt with under s 79(3) of the Act. The Court of Criminal Appeal considered each of the offences and the indicative sentences. It did not merely focus upon the aggregate sentence as the applicant contended.

116. I have concluded that there is no basis for this Court acting under s 79(1) of the Act on the ground of manifest excess.

Alleged Failure of the CCA to Consider Extra-Curial Punishment

117. This ground may be dealt with shortly. As noted in the judgment of Adamson J at [31], the question of extra-curial punishment was a matter considered and taken into account by the sentencing judge. It was also a matter relied upon as Ground 1 of the applicant’s appeal to the Court of Criminal Appeal.

118. Adamson J dealt with this matter at [38] of her judgment. As her Honour observed, the matter was specifically adverted to by his Honour in the Remarks on Sentence. There was no doubt that his Honour did take it into account and it was a matter for the sentencing judge to determine what weight was to be given to that matter.

119. The sentencing judge had regard to what was termed “the loss of his family home” as extra-curial punishment. As the Crown observed, this matter was raised in the “personal background statement” which was tendered at the sentencing hearing.

120. In relation to this head of complaint, against it is to be noted again that no application was made by the applicant for Special Leave to Appeal to the High Court in relation to any matter concerned with extra-curial punishment. No matters have been established on this application which would warrant taking further action in relation to this aspect.

121. The arguments presented and the matters raised by the applicant in his submissions, do not give rise to any unease or sense or disquiet in relation to the sentence imposed.

122. I note the Crown’s submission that there was no evidence at the sentencing hearing to suggest that the applicant lost his family home simply as a result of having committed the offences. The personal background statement revealed that he had had long-standing financial difficulties. It was submitted that a sufficient nexus between the offences and the loss of the applicant’s family home was not established by the fact that the loss of his home would not, or may not, have occurred had his employment as a police officer not been terminated.

123. However, at the end of the day the sentencing judge did refer to the extra-curial factors in his consideration of the indicative and aggregate sentence imposed.

Conclusion

124. The application filed by the applicant on 16 January 2015 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry into his aggregate sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months for five offences and four further offences specified on the Form 1 does not establish any relevant error either by the sentencing judge or by the Court of Criminal Appeal. Furthermore, the application and the material relied upon in support of the application does not establish any facts or circumstances that would justify the taking of any further action pursuant to s 79(3)(b) of the Act.

125. The offences committed by the applicant involved a high level of objective seriousness. The sentencing judge considered all relevant matters in determining the applicant’s criminality including personal or subjective factors.

126. The aggregate sentence imposed was well within the sentencing discretion exercised by the sentencing judge.

127. The following two matters are noted:

1. The applicant had the opportunity of pursuing many of the matters that were raised in the present application in his appeal to the Court of Criminal Appeal.

2. Following the dismissal of that appeal, no Application for Special Leave was made by him to the High Court and no facts or circumstances have been raised sufficient to cause any sense of disquiet or unease as to the sentence imposed upon him.

128. Each of the matters (1) and (2) above fall respectively within the provisions of s 79(3)(i) and (ii) of the Crimes (Appeal and Review) Act 2001. They are matters that entitle this Court to refuse to consider or otherwise deal with an application for an inquiry under s 78 of that Act. They are matters that justify the dismissal of the application.

129. Upon consideration of the application, I have concluded that no basis has been established warranting a direction for an inquiry in terms of s 79(1)(a) and there is no basis for a referral of the applicant’s case to the Court of Criminal Appeal in terms of s 79(1)(b) of the Crimes (Appeal and Review) Act 2001.

130. Accordingly, the application made pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 is dismissed.

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Decision last updated: 09 October 2015