Casilli v Wehrmann
[2014] WASC 319
•10 SEPTEMBER 2014
CASILLI -v- WEHRMANN [2014] WASC 319
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 319 | |
| Case No: | SJA:1057/2014 | 10 SEPTEMBER 2014 | |
| Coram: | McKECHNIE J | 10/09/14 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CARL SALVATORE CASILLI PHILLIP C WEHRMANN |
Catchwords: | Criminal law and procedure Sentence Unauthorised access of computer system Multiple offences Supplying information of telephone intercept warrant Supplying audiovisual recording without authority Total sentence 9 months Whether imprisonment only option Whether sentence should have been suspended |
Legislation: | Criminal Code (WA), s 440A Criminal Investigation Act 2006 (WA), s 120 Telecommunications (Interception and Access) Act 1979 (Cth), s 63 |
Case References: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323 Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 House v The King [1936] HCA 40; (1936) 55 CLR 499 Hull v The State of Western Australia [2005] WASCA 194 R v Stockdale [1995] VSC 181 Rhatigan v Forbes [2009] WASC 368 Samson v The State of Western Australia [2011] WASCA 173 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
PHILLIP C WEHRMANN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : DEPUTY CHIEF MAGISTRATE E A WOODS
File No : PE 37655 of 2013, PE 37656 of 2013, PE 37657 of 2013, PE 37658 of 2013, PE 37659 of 2013, PE 37660 of 2013, PE 37661 of 2013, PE 37662 of 2013, PE 37663 of 2013, PE 37664 of 2013, PE 37665 of 2013, PE 37666 of 2013, PE 37667 of 2013, PE 37668 of 2013, PE 37669 of 2013, PE 37670 of 2013
Catchwords:
Criminal law and procedure - Sentence - Unauthorised access of computer system - Multiple offences - Supplying information of telephone intercept warrant - Supplying audiovisual recording without authority - Total sentence 9 months - Whether imprisonment only option - Whether sentence should have been suspended
Legislation:
Criminal Code (WA), s 440A
Criminal Investigation Act 2006 (WA), s 120
Telecommunications (Interception and Access) Act 1979 (Cth), s 63
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J B Prior
Respondent : Mr J Mactaggart
Solicitors:
Appellant : C & G Miocevich Law Offices Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323
Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hull v The State of Western Australia [2005] WASCA 194
R v Stockdale [1995] VSC 181
Rhatigan v Forbes [2009] WASC 368
Samson v The State of Western Australia [2011] WASCA 173
- McKECHNIE J:
How this matter comes to appeal
1 The appellant, then a senior serving police officer, used the police computer system to access restricted information 15 times intermittently over a five year period. He also communicated an interception warrant information, and, without authority, supplied an electronically recorded record of interview (EROI) to a lawyer.
2 On 30 June 2014 he pleaded guilty in the Magistrates Court at Perth to 17 offences arising from his conduct.
3 On 15 July 2014 the Deputy Chief Magistrate sentenced the appellant to 9 months' imprisonment. Although invited to do so the magistrate declined to suspend the sentences.
(a) Charge No 37669/13 (communication of warrant information) - 4 months' immediate imprisonment.
(b) Charge Nos 37664, 37666, 37667, 37668 and 37670/13 (accessing the computer system) - 1 month's immediate imprisonment cumulative for each of these five offences (total 5 months) and cumulative with the sentence on charge 37669/13;
(c) Charge Nos 37655 - 37663 and 37665/13 - 1 month's immediate imprisonment for each offence concurrent on all sentences;
(d) Charge No 30437/13 (supplying the EROI) - $2,000 fine. This fine is not subject to an appeal.
4 The appellant immediately lodged an appeal and was granted bail pending the hearing.
The particulars of the offending
5 The prosecution stated the material facts, most, but not all, of which were accepted by the appellant. I have edited the statement. The prosecutor chose not to name the lawyer with whom the appellant had a relationship and who received the unauthorised information. However, other people were named, possibly adversely. Having regard to the principles of open justice, I do not see the need to suppress the name of the lawyer and no such order was sought by either party.
Introduction to facts
6 The prosecutor stated:
The offender was a Detective Sergeant at the time, attached to the WA Police Central Metropolitan District Crime Team. Prior to that he was attached to various sections, including the Coronial Investigation Unit and Major Crime Squad, and his role as a police officer included conducting audiovisual recorded interviews with people suspected of engaging in criminal activities.
Charge No 30437/13
7 The prosecutor stated:
At 9.55 am on 2 September 2011 he conducted an audiovisual recording with a person, a Colin Peter Casey, who was later formally charged with murder. At an unknown location on an unknown date sometime between 2 September 2011 and 24 April 2013 the offender supplied a copy of Mr Casey's audiovisual recording interview to a young female practitioner with whom he had been having a personal relationship.
She, at that time, was employed in various Perth-based legal practices, including Hoffman & Co, NR Barber Legal and Hammond Legal Pty Ltd. Complying with a notice to produce, the offence came to the surface when she complied with a notice to produce and attend under the Corruption and Crime Commission Act 2003 (WA), and it became apparent that she was in possession of that particular interview.
Given that she was not acting for Mr Casey and she had no occasion to have possession of the interview, your Honour, possession of it was unlawful.
Unauthorised access - Charges 1 - 9, 11
8 The prosecutor stated:
His role (attached to the Central Metropolitan Crime Team) meant that he had access to WA Police's restricted access computer systems, which included the WA Police incident management system, which is a case management database which contain records, including names, addresses, vehicle and driver licensing, criminal histories. It also incorporated information on closed and active WAPOL investigations.
Access to the IMS system was via the WAPOL computer network and required a user name and password to be entered. When logging into the IMS the initial screen required a user name, that is the officer's regimental number, and a password. Now, the login screen also encompassed a warning that the information stored on the database was confidential, not to be disclosed to unauthorised persons, or accessed for personal reasons.
The offender had been involved in an intermittent personal relationship with a young female lawyer and charges 1 to 9 and charge 11 can be conveniently described as the offender unlawfully using the computer system either to view or print stored information relating to that young lawyer's personal details, vehicle and driver licensing, telephone number and property incident reports. He had no legitimate reason to access information relating to the lady other than for his own personal reasons, and had no reason to distribute that information.
Your Honour, I have had the advantage of reading my learned friend's sentencing submissions where he particularises at paragraphs 16 to 19. I do not dispute those particulars, and they can be treated as part of the record.
9 Paragraphs 16 - 19 of those submissions read:
16. Nine of the fifteen offences of unauthorised use of the police computer system involved Mr Casilli accessing personal information relating to Ms Clohessy. A further offence (on 10 December 2010) related to Mr Casilli accessing information on Ms Clohessy's mother, Rachel Clohessy.
17. In the majority of cases involving Mr Casilli's unauthorised access to Ms Clohessy's details, the accessing was in response to a request by Ms Clohessy for information. On more than one occasion, Ms Clohessy wanted to know how many traffic demerit points she had accumulated. On another occasion she sought information about when her licence was due to expire. On one occasion, Ms Clohessy sought information about a motor vehicle accident she was involved in.
18. On more than one occasion, Mr Casilli sought information about Ms Clohessy's current address in order to send her a gift.
19. The offence involving the accessing of information relating to Rachel Clohessy followed a request by Ms Clohessy for the registration number of her mother's vehicle, as the registration was due for renewal.
Charge 10
10 The prosecutor stated:
On 27 June 2010 a Mr Luke J Buswell-Smith had been charged by police with the offence of no authority to drive and driving under suspension. On 4 October 2010 the offender accessed the IMS system and read 11 entries relating to the incident, notwithstanding that it had nothing to do with him in his capacity as a police officer.
And he printed out a history relating to Mr Buswell-Smith 's convictions as a history to the court and emailed that to the lady that I have referred to, who was representing that person in court, and he used the lady's mother's address. He, of course, had no particular involvement in the matter in question.
Charge 12
11 The prosecutor stated:
On 2 February 2011 a Mr Mills came to the attention of police. Police had attended Mr Mills' address at Nyabing to serve a violence restraining order sought by his partner and issued by Narrogin Magistrates Court. As a result of that, he was subsequently charged with a number of offences, including possession of unlicensed firearms.
On 3 February 2011 the offender received an email on his WAPOL email account from the young woman lawyer's account, asking in language that discloses some familiarity and personal relationship, if she could grab a police report for him. The offender queried the nature of the report and the lady responded, 'A criminal damage burg. Can I call? I'll explain'.
At 3.19 pm on 4 February 2011 the offender accessed the IMS, read and printed two entries relating to the person, Mills, his home address, and an incident report, which contained information grounding the violence restraint order. That was recorded as commencing at 1.00 am on 3 February 2011. And the young lady lawyer subsequently appeared in court in relation to this person. The offender had no involvement in relation to those incident reports or the Mills matter at all.
Charge 13
12 The prosecutor stated:
On 30 April 2010 police attended an incident in Caledonia Avenue, Currambine. The incident involved an assault on a Mr Brendan JC Halliwell, and the unlawful wounding of a Mr Ongley by a group of youths. And a media release was actually released by WA Police in relation to that. On 11 April 2012 the young lawyer emailed the offender on his WAPOL email account with a heading, 'Urgent. Our new client'.
As a result of receiving that email, the offender accessed the IMS system of the police, read and printed multiple entries relating to the incident and accessed the incident report relating to the incident, and printed the report and its running sheets. And he also accessed entries relating to Mr Halliwell. He sent the following information in reply to the lawyer, he said, 'The information against the persons of interest are scant'.
In my sentencing submissions I have submitted that in a couple of instances the offender actively undermined his colleagues by this conduct, and that is what I am referring to. The offender also stated:
Please remember this was not my investigation and I'm coming in late to have a look at it without any real reason, except under request, so please keep what I'm doing between us.
The prosecution's case is that the offender knew quite well that not only was this conduct unethical, it was plain illegal on his part. And so he sent that person. Ongley appeared in court represented by the lawyer whom the offender had provided the information to.
Charge 14
13 The prosecutor stated:
On 28 January 2013 police received an incident report about an incident in Munger Street, Perth. The incident involved an assault on Mr Twan M Kwash by another person, Mr Warren Lorimbu Norman. The offender sent an email from his WAPOL email account to the lawyer in question, and that was, 'Call me,' and, 'I have an unlawful wounding for you.' The offender then accessed the IMS system of the police and read eight entries relating to Norman, which included an incident report and other details relevant to that person's information, vehicle licensing, traffic crash particulars, and a burglary matter.
The offender sent a second email to the lawyer which contained details of the incident and details of injuries, and hospitalisation and other material copied from the incident report. Again, he had no particular occasion to provide that information.
To otherwise obtain this information, it goes without saying that the lawyer in question, in relation to each of those pieces of information she was seeking, would have had to issue some sort of a formal process, either requested the relevant prosecuting authority, a summons, or the like. She simply could not have contacted the offender, as someone who was intimately acquainted with her, and requested whatever she liked, which is what she was doing.
Charge 37670/13
14 The prosecutor stated:
Perth number 37670, which has its own history. On 10 July 2010 police officers from the Warwick Police Station attended an incident at the Greenwood Hotel, Greenwood, which resulted in a Ms Elise Aruti and Mr N Tutor being charged with criminal offences. They were charged with assaulting a public officer, and the matters were recorded in various WAPOL incident reports. Mr Aruti appeared before the Joondalup Magistrates Court on 20 August 2010. The matter was adjourned until 15 October2010 and listed for a trial on 5 May 2011.
At 11.20 am on 4 May 2011 the offender received an email on his WAPOL email account from the lawyer in question, and this was slightly different from the others in that on this occasion the lawyer actually requested the offender to actively prepare statements for her, which he agreed to do so, requesting that she send him the details - and that he requested that she sent him the details, and he provided a facsimile number for the WA Police Major Crime Squad, where he was presently stationed.
The statements were for the client and a defence witness. The offender used the WAPOL computer system to produce two witness statements, which he saved on his H drive on the WAPOL personal drive. The offender then accessed and read 13 entries relating to Mr Aruti, Mr Tutor and other matters, and at 1.21 pm, at the offender's direction, a WAPOL administration officer emailed the offender a five-page document entitled Greenwood Hotel Incident, which she had typed on his behalf.
This document related to the incident at the Greenwood Hotel on 10 July 2010 and the activities of the people in question, your Honour, and a partner of one of the accused. The document was created at 12.33 pm and modified at 1.19pm. The offender then emailed these statements he had prepared to the work account of the lawyer and emailed other statements to her account and the mother's account.
Now, the offender had no involvement in the Greenwood Hotel incident and had no reason to not only access WAPOL's restricted access computer system to view or distribute information relating to the incident, but also on the prosecution's case, your Honour, he had no reason to actively do work as a police officer as part of the defence case, which is why I've submitted that in a couple of these instances it went beyond really doing, as it were, an inappropriate favour for someone with whom he was personally and intimately acquainted, but it went to actively undermining the work of his colleagues in conducting investigations.
Charge 39669/13
15 The prosecutor stated:
The facts in relation to that case are that in the offender's role as a - in relation to that prosecution notice, in the offender's role as an investigator attached to the Central Metropolitan District Crime Team, it required that he had access to restricted materials, including information that related to intercept warrants obtained under the Telecommunications Interception and Access Act 1979.
He was not a person authorised to communicate intercept warrant information, except under section 68 of the Telephone Interception Act. Now, on - now, these warrants include surveillance device warrants and the like. From Monday, 30 July 2012 up to 2 August 2012 the offender took annual leave. On 1 August 2012 he attended at his workplace and sent a number of emails to his wife and this lawyer. He then sent to the lawyer concerned a copy of a telephone intercept affidavit, which was received and viewed with other affidavits which he was not entitled to send, and which was illegal for him to do so.
The important point to note is that he was certainly not privy to any investigation relating to the affidavit and it was grossly illegal for him to provide that to a lawyer, not only acting - who was not acting for a client concerned and had no occasion to have that affidavit (ts 5 - 11).
16 Mr Prior tendered a schedule which summarises the offences and penalties imposed. I attach it as a schedule to the judgment.
Matters in mitigation
17 Counsel for the appellant provided the magistrate with written submissions which he supplemented orally. The magistrate also received many references. I outline some of the submissions most relevant to matters of mitigation:
11. Mr Casilli entered the Western Australian police in 1996. In 2002, Mr Casilli was nominated as Police Officer of the Year. He was awarded the National Medal for Service in2011. As a result of the present offences, Mr Casilli resigned from WAPOL in March 2014.
12. In July 2007, Mr Casilli commenced working for the Major Crime Squad. In August 2007 Mr Casilli was assigned to Operation Dargan, the investigation into the death of Corryn Rayney. He was a senior officer in the investigation and was assigned the role of 'Special Projects Manager'.
13. As a result of the complexity of the investigation and significant media attention attached to it, Mr Casilli's role as a senior investigating officer in Operation Dargan became extraordinarily onerous. Mr Casilli was required to work unusually long hours, often 7 days a week. During the investigation he became all consumed by his work.
14. Unsurprisingly, Mr Casilli's work on Operation Dargan had a significant adverse impact on his family and personal life. He blames the pressures of his work, at least in part, for the breakdown of his marriage in early 2012.
…
33. Mr Casilli is a 42-year-old man with no criminal convictions. He is a father of 10-year-old twins. References provided attest to his good character.
34. As a result of the present charges, Mr Casilli has had to abandon a significant career built over sixteen years. His downfall has well been publicized.
35. Mr Casilli has demonstrated genuine remorse and has pleaded guilty at what the prosecutor accepts is the earliest reasonable opportunity.
18 I have already set out the submissions 16 - 19 which the prosecution accepted. These related to charges where the appellant accessed information about the lawyer.
19 The appellant's submissions as to circumstances of the offending:
20. The remaining five offences involve Mr Casilli accessing information relating to Ms Clohessy's clients.
21. On three occasions (27 June 2010, 18 April 2012 and 06 March 2013) the unlawful access led to information being provided to Ms Clohessy. On two of those occasions (27 June 2010 and 18 April 2012) the information was provided to Ms Clohessy at her request.
22. On 04 May 2011, Ms Casilli prepared some documents for Ms Clohessy to assist her in representing one of her clients. Prior to preparing the documents, Mr Casilli had unauthorised access to information concerning the client. There is no evidence that the information viewed during the unauthorised access formed part of the documents later sent to Ms Clohessy.
23. On all occasions that information was provided to Ms Clohessy, it was done so on the understanding that Ms Clohessy, in dealing with the information, would be bound by her professional duties of confidentiality.
24. The information accessed by Mr Casilli concerning Ms Clohessy's clients was information that Ms Clohessy would ultimately have been entitled to receive as part of the disclosure process.
The sentence
20 At the conclusion of the hearing on 30 July 2014, the magistrate adjourned proceedings to consider the submissions, references and the pre-sentence report.
21 On 15 July 2014 the appellant appeared for sentence. The magistrate gave extensive reasons for her decision:
In relation to these charges before the court, there's a total of 17 charges before the court. One charge - the supplying of the video record of interview is a fine only offence and a fine will be imposed in relation to that matter. In relation to that charge, the explanation given by the accused was it was used for training purposes and not in relation to the content of the video record of interview.
There are another 15 charges before the court of accessing restricted computer system not authorised and basically within that 15 charges, there are - they fall into two groups. There are nine charges which specifically deal with information that was obtained either for the person that Mr Casilli was in a relationship with and one in relation to that person's mother. And there are five charges that relate to information that was given to her that relates to a third person and in relation to that, Mr Casilli was not any part involved in the investigation of those people and had to access the system to give her information that she wasn't getting at that point in time.
The last charge of the 17 - 37669 is communicating information to her in relation to an interception warrant and an affidavit being provided. In relation to that matter, it was information in the affidavit and I'm not aware of what information was in it. I have not seen the affidavit, but the seriousness in relation to that offence is obviously the potential problems that it could cause in being disclosed.
At the outset, I comment that the offences are often committed - these type of offences often committed by people that have good antecedents, no previous record. In fact, the purpose - the reason they get access to the systems is because they are people of that sort. It is not unusual that these offences are committed by people who are first offenders.
By way of background information, the accused was a serving police officer at the time, 42 years of age. He had a good service record within the police force and he has since resigned his position with the police force and started some new training. He is a person with no previous convictions, good antecedence. He has in the references that had been provided and materials that were given to the court, he has made a positive contribution to the community in recent times and he has sound personal references and referees had been provided - references had been provided by members of the public. In relation to the references, I note there were no - no references provided by police officers and that was explained because of the difficulty in relation to them providing them, not because they would otherwise not have.
There are obvious consequences for a person such as the accused in terms of him being charged and convicted. They are serious for him because he has already lost his career and job within the police force. There has been significant publicity and, no doubt, some personal embarrassment for him in relation to the charge and conviction of these. There has been a significant impact on his family and his family relationships. And I acknowledge that any term of imprisonment for a former police [officer] would be difficult.
The early plea of guilty obviously does indicate remorse in the usual course. There are, however, in relation to this particular type of offending, means on the computer system itself, which means that the access can be tracked and so the plea of guilty, although it has been entered and entered at an early opportunity, given the negotiations and the legal advice, taking that into account, the actual offences could be detected through their own source in the computer because it's all recorded.
The explanation that the accused sought to give in relation to this offending was the pressure of work and the seriousness of the investigation that he was involved in at the time, which distorted his judgment to some effect, along with the relationship that he had formed. It is to be noted that the offences occurred over an extended period of time between August 2008 and March 2013. The conduct has been repeated on more than [one] occasion. It's not a one-off offending situation.
Each time he accessed the system and did do this, the system itself reminded him of the consequences of any improper use of the system and, in fact, he knew what he was doing to be wrong, inappropriate and unlawful because, in fact, in an email that he sent to the person that's relevant to charge 13, he told her to keep this information between themselves. The five charges in the group to do with the police investigations, he was not, in fact, a part of those investigations and he accessed the material quite separately to the investigating officers.
The investigating officers were not aware and would not have been aware of what material he was giving out and he was not part of any investigation as far as they were concerned. It is said by the defence that she would have got information anyway as part of the normal disclosure process and that may have well have been the case. However, some formal request would have been required, disclosure would have been formally done.
And the officer in charge would have had the opportunity to consider what materials would be disclosed and if there was anything inappropriate or not necessarily disclosed in the form it was in, it would have - he would have turned his attention to that and made specific provisions for it. In this situation, he did not have that opportunity because he was unaware it had been done.
The prosecution have contended that the giving of the information undermined investigations and undermined the colleagues of the accused and that's, in their view, what makes this serious in terms of its type. In relation to that, there is nothing specific that I have been pointed to that indicates that the investigations did not go their normal way or did not come to a conclusion that was satisfactory or otherwise. But that may have been something that happened. It's simply not something that can be determined by the court.
The last offence which is the disposing of the intercept warrant affidavit, in my view, this charge is particularly serious because of the contents of the affidavit would not have been available in the usual course to defence counsel and would normally be the subject of a non-disclosure application by police. The content of the affidavit, as I've already said, is unknown to me, but its disclosure could potentially be very serious in terms of any investigation.
It is usual for those types of affidavits to have details of informants, of undercover officers or persons and to disclose police methodology, which obviously the police don't want to have disclosed in terms of their investigation techniques. The potential to seriously compromise an investigation by disclosing this affidavit is very serious.
By way of general comment, there's a breach of the public trust in this behaviour, an erosion in the public confidence that would follow. The public assume that the information is kept on a secure system and it will be kept securely and accessed by right and proper people. It does not expect that the information will be given out to others that are not entitled.
I do note for the course of this conduct, however, that the accused did not actually receive any benefit as such, in providing the information to the person. In relation to the authorities, it's obvious that there are a number of things that need to be taken into account - the nature of the information that was disclosed, the quantity [of] information that was disclosed and (indistinct) access.
And specifically in relation to the Commonwealth offence, that section 16A be considered of the Crimes Act, which covers the material to be taken into account when sentencing a person on a Commonwealth offence. It is my view in the circumstances of this offence that they cannot adequately be dealt with by way of a community based order or a fine, with the exception of the one charge which is 30437/13 which is a fine only offence. It is obvious, therefore, that it's my view that serious consideration having been given to the matter, that the only way to deal with these matters is by way of a term of imprisonment. And I then need to consider whether that should be a suspended term or an immediate term.
In relation to suspended terms of imprisonment, obviously I don't need to find exceptional reasons or circumstances that that should be suspended, but rather that the offences deserving of imprisonment, but there are circumstances that prevailing that justify the suspended imprisonment order be made.
There are a number of things again I need to turn my mind to when taking those things into consideration and deciding on the suspension or otherwise of the term of imprisonment. They include that the plea of guilty has been entered at an early opportunity and he's entitled to a discount in relation to that. That he has no former record previously. He's a person of good character. The references that have been provided, the fact he has lost his career. The facts that he has contributed positively to the community, the impact on his family and family relationships and his age.
However, on the other side of the ledger are the matters of seriousness of the disclosure, particularly in relation to the affidavit matter. That needs to have general and specific deterrence in relation to other persons and him in particular. The issues of trust and public expectation, the fact that these sorts of offences are hard to detect because the people already have access to the system, unless there is something drawn to their attention, there is no reason to investigate these types of things.
The potential effect on any investigations in relation to the disclosures that were made in relation to the affidavit matter and the other five charges that relate to people that were not the person he was in a relation[ship] with or her mother, the extended period of the offending and the fact that he had already acknowledged that he knew what he was doing was wrong and improper.
In giving consideration to all those matters, it's my view that an immediate term of imprisonment should be imposed and I intend to impose an immediate term and not to suspend it. In relation to the affidavit charge, which is 37669/13, there will be four months imprisonment to be served in full. I don't need to set any recognizance because it's a period lesser than six months under section19AC.
On each of the other charges, 37664, 37666, 37667, 37668 and 37670, there will be one month imprisonment. They will be cumulative on the four months and will be served at the end of that term and cumulative on each other. And the other charges - 37655 through to 37663 and 37665 will have one month imprisonment and that will be concurrent with the other terms imposed. In effect, that will be a total of nine months. In relation to the fine only offence, 30437/13 there will be a fine of $2000. I don't intend to impose any court costs (ts 36 - 40)
The grounds of appeal
22 I set out the grounds:
1. The sentences imposed, individually and cumulatively, by the learned Magistrate, were manifestly excessive, particularly having regard to:
i. The circumstances surrounding the offences;
ii. The antecedents of the appellant including his lack of record;
iii. The plea of guilty;
iv. The relatively low statutory maximum penalties that could be imposed.
2. If terms of imprisonment were warranted then the learned Magistrate erred by finding that the sentences had to be served immediately, particularly having regard to:
i. The circumstances surrounding the offences;
ii. The antecedents of the appellant including his lack of record;
iii. the plea of guilty;
iv. The relatively low statutory maximum penalties that could be imposed.
Ground 1
(a) Unauthorised access to gain information about Ms Clohessy
24 The appellant and respondent have both provided helpful and detailed submissions supplemented by oral argument. In his oral submissions, Mr Prior emphasised that the majority of the unauthorised access offences were committed with the lawyer's consent or at her request.
Appellant's submissions on appeal
25 I set out the submissions:
19. The majority of these offences related to requests by Ms Clohessy for information regarding herself, such as drivers licence demerit points, motor vehicle drivers licence expiry date and motor vehicle accidents she was involved in. One offence related to Ms Clohessy's mother's vehicle registration which was due for renewal and on more than one occasion, information was sought (not at the request of Clohessy) about her current address to send her a gift.
20. The three most important considerations for sentencing in a case involving the Unlawful Use of Computers are:
(a) the nature of the information to which access was gained;
(b) the quantity of information the subject of the access;
(c) the purpose of the offender in gaining access.
Hull supra, per Wheeler JA at [5]
22. The Sentencing Magistrate determined that the 9 offences described in paragraph 2(c) (although made concurrent) were each deserving of a term of 1 month's imprisonment. It is implicit in every Unlawful Access to a Computer offence that there will be a breach of public trust and erosion of public confidence. Apart from such loss of trust, there is little in these offences to make them more aggravating than any other Unlawful Access of Computer offence.
23. If these 9 offences are deserving of a sentence of immediate imprisonment, then it is submitted that in almost every case where a person misuses their restricted access to a computer, immediate imprisonment is warranted, as it is hard to think of offences against this section that would be less serious.
24. Where a person has requested information from a police officer about themselves and a police officer provided that information without going through the proper channels, then it is submitted that the offence is not of such a level of seriousness as to warrant a sentence of immediate imprisonment.
25. It is submitted that it is implicit in the Sentencing Magistrate's finding that she has overestimated the seriousness of the offences in terms of the breach of public trust and erosion in public confidence.
Respondent's submissions on appeal
26 I set out the submissions:
7. The respondent submits that the sentencing magistrate was entitled to impose a term of imprisonment of a month for each of these offences having regard to the number of the offences committed and the time span over which the offences were committed, being from the 6th August 2008 to the 27th June 2010.
8. As to the submission articulated at paragraph 23 of the appellant's submissions, the respondent submits that the submission does not take into account the circumstance that the appellant was a very experienced serving police officer, being an investigator who had attained the rank of detective sergeant level. As such, he had a level of trust reposed in him beyond that of a lower level public servant, public officer or officer occupying a less sensitive role or position.
9. In response to the submission articulated at paragraph 24 of the appellant's submissions, the respondent submits that Ms Clohessy was obtaining an advantage not open to others, legal practitioners or otherwise, and that the provision of information in the informal and illegal manner that the appellant provided the information to her, deprived the West Australian Police Service of the opportunity to properly audit the information or of any record that the information had been provided. The appellant's plea of guilty to the offences was an acknowledgement of each element of the offence including the circumstance that his unauthorised use of the West Australian Police restricted access computer system for the purpose of providing the information to Ms Clohessy, was unlawful. The respondent repeats its submission that the appellant unlawfully used this system on nine separate occasions and submits that the sentencing Magistrate did not err in the exercise of her Honour's discretion in imposing a sentence of imprisonment of one month for each offence.
(b) Unauthorised access to gain information requested by Ms Clohessy about her clients
Appellant's submissions on appeal
27 I set out the submissions:
26. The details of the purpose the information was received are contained in the written submissions of the Appellant's counsel at first instance dated 27 June 2014 paragraphs 20-31 and his oral submissions made 30 June 2014 to the Sentencing Magistrate. [T15-23].
27. All 5 charges related to information requested by Ms Clohessy, a lawyer, in relation to her clients. There was a submission by the prosecutor to the Sentencing Magistrate that the provision of this information undermined colleagues and ongoing investigations. This submission was rejected by the Sentencing Magistrate [paragraph 13 above] however, the Sentencing Magistrate in her sentence remarks did take into account:
'The potential effect on any investigations in relation to disclosures that were made in relation to the affidavit matter and the other five charges that relate to people that were not the person he was in relation (sic) with or her mother …'. [T40].
28. The Appellant in his written submissions dated 27 June 2014 [paragraph 29] submitted the following relevant factors in accessing the seriousness of these 5 offences:
(a) Given the purpose behind the unauthorised access, Ms Clohessy's clients would not have objected to the unauthorised access;
(b) Ms Clohessy would ultimately have been entitled to receive the information accessed in the course of the disclosure process; and
(c) Ms Clohessy was bound by professional confidentiality restrictions in terms of her use of the information.
29. The sentencing remarks of the Sentencing Magistrate reveal that she accepted the above submissions, save for the following:
(a) The information Ms Clohessy would ultimately receive through formal disclosure would be considered by the officer in charge as to what should or should not be disclosed [T38];
(b) The Sentencing Magistrate considered these five offences were more serious as they had a potential effect on investigations, although she did acknowledge there was no evidence that the charges did not proceed in the normal way or did not come to a conclusion that was satisfactory or otherwise. [T38].
30. It is submitted that an analysis of the offending behaviour for these 5 offences reveals the potential effect on investigations was minimal and could not lead to the conclusion that the offending was so serious that the only appropriate sentencing dispositions were terms of immediate imprisonment.
Respondent's submissions on appeal
28 I set out the submissions:
10. While the respondent acknowledges that the sentencing magistrate took into account the potential effect of investigations as outlined in paragraph 27 of the appellant's submissions, in imposing sentence upon the appellant, her Honour observed:
'However, on the other side of the ledger, are the matters of seriousness of the disclosure, particularly in relation to the affidavit matter. That needs to have general and specific deterrence in relation to other persons and him in particular. The issues of trust and public expectation, the fact that these sorts of offences are hard to detect because the people already have access to the system, unless there is something drawn to their attention, there is no reason to investigate these types of offences.' T40.
11. The respondent submits that the sentencing magistrate's sentencing discretion to impose a term of one month's imprisonment in respect of charges PE37664, 37666, 37667, 37668 and 37670 did not miscarry. In each instance the appellant provided to Ms Clohessy information about an investigation which he had no involvement in. In relation to charge PN376666 [PE 37666/13], the appellant advised Ms Clohessy by email - 'please remember this was not my investigation and I'm coming in late to have a look at it without any real reason except on your request so please keep what I'm doing between us'. Knowing that, the appellant persisted in providing the information. The respondent repeats its submission that the appellant was an experienced investigator who specifically acknowledged that he knew what he was doing was wrong and who by his plea appreciated that what he was doing was unlawful and illegal. The respondent submits that the learned magistrate was entitled to impose a deterrent sentence by way of a term of imprisonment to be immediately served.
12. As to the submission articulated at paragraph 28 of the appellant's submissions, the respondent submits that while Ms Clohessy may have ultimately been entitled to receive the information accessed or some of it in the disclosure process, the West Australian Police Service had no way of knowing that there was a flow of information to Ms Clohessy in the informal and illegal manner it was being provided. The appellant's actions deprived the West Australian Police Service of the capacity to know what was being provided and what was not and to make appropriate objections if need be. While Ms Clohessy's clients would not have objected to the unauthorised access, had the appellant's superiors in the West Australian Police Service been aware that he had been providing the information in the manner that he was and to the person he was, they undoubtedly would have.
13. As to paragraph 28(c) of the appellant's submissions, the respondent submits that while Ms Clohessy may well have been bound by professional confidentiality restrictions in terms of her use of the information, the appellant has acknowledged by his plea that his very provision of the information was both inappropriate, illegal and unlawful. The appellant was a detective sergeant of police and expressly told Ms Clohessy - 'please keep what I'm doing between us'. In the light of these facts, the respondent repeats its submission that the sentencing magistrate did not err in the exercise of her Honour's discretion in imposing the cumulative sentences of imprisonment to be immediately served which her Honour did.
(c) Communication of telephone intercept information
Appellant's submissions on appeal
29 I set out the submissions:
31. This offence related to the Appellant forwarding intercept warrant information to Ms Clohessy on 1 August 2012 in relation to a Western Australian Police Murder investigation. The contents of the affidavit are unknown. The affidavit was not before the Sentencing Magistrate.
32. Ms Clohessy was not acting for the client concerned and had no legitimate reason to have possession of that affidavit. The Sentencing Magistrate found this offence particularly serious because:
'… the contents of the affidavit would not have been available in the usual course to defence counsel and would normally be the subject of a non-disclosure application by police. The content of the affidavit, as I've already said, is unknown to me, but its disclosure could potentially be very serious in terms of any investigation.
It's usual for those types of affidavits to have details of informants, of undercover officers or persons and to disclose police methodology, which obviously the police don't want to have disclosed in terms of their investigations techniques.
The potential to seriously compromise an investigation by disclosing this affidavit is very serious'. [T38-39].
33. It is unknown why and for what purpose the affidavit was forwarded to Ms Clohessy by the Appellant. The Sentencing Magistrate accepted there was no benefit to the Appellant in providing the information. [T39]. The Sentencing Magistrate based her assessment as to the seriousness of the offence on 'the potential' to compromise investigations. [T38].
34. There was no material before the Sentencing Magistrate which indicated that at the time the Appellant forwarded the affidavit to Ms Clohessy the relevant police investigation was ongoing or completed.
Respondent's submissions on appeal
30 I set out the submissions:
14. The respondent submits that the sentencing magistrate was quite entitled to conclude that the offence was particularly serious because the contents of the affidavit would not have been available in the usual course to defence counsel and would normally be the subject of a non-disclosure application by police. Further, Ms Clohessy was not acting for any person covered by the affidavit and had no lawful occasion to receive the affidavit.
15. The respondent repeats its submission as to the position of trust occupied by the appellant by reason of his position as an experienced police officer and senior investigator and detective and submits that the sentencing magistrate's sentencing discretion in imposing a sentence of 4 months immediate imprisonment to be served, did not miscarry.
Ground 2 - Should the sentence have been suspended
The appellant's submissions
31 I set out the submissions:
41. The nature of the offending behaviour, the purpose of the offending behaviour, the Appellant's personal antecedents and the mitigating factors were such that the decision by the Magistrate not to suspend the terms of imprisonment imposed was in error.
32 Mr Prior's essential point in oral submissions is that there is implied error because the magistrate did not sufficiently take account of the factual circumstances.
The respondent's submissions
33 I set out the submissions:
17. The respondent submits that a reconsideration of all the circumstances of the case dictates that a sentence of imprisonment to be immediately served taking into account the appellant's early pleas of guilty, was the only appropriate and justifiable sentence in the circumstances of this case. The respondent repeats its submission that the offender was an experienced and reasonably senior investigator and police officer who over a 4½ year time span repeatedly provided information to a female lawyer with whom he was having an intimate relationship when it was not appropriate, and indeed when it was illegal for him to do so. The respondent repeats its submission that in respect of charge Pn37667/13 [PE 37667/13], the appellant acknowledged this was so. The respondent submits that both the appellant's superiors in the West Australian Police Service and the public were entitled to assume having regard to the appellant's experience and seniority, that the appellant would act in a trustworthy and lawful fashion. The appellant acknowledged by his pleas of guilty to 17 separate offences that over a significant period of time, namely 4½ years, he did not. The respondent submits that in imposing the sentence of 9 months imprisonment that her Honour did, the sentencing magistrate did not err in the exercise of her Honour's discretion in imposing a sentence that was a deterrent both to the appellant and others who might persistently abuse a position of trust in the manner that the appellant did.
Relevant principles
34 Sentencing is an exercise in discretion. The principles in relation to the review of discretion are well known and arise from House v The King [1936] HCA 40; (1936) 55 CLR 499. Reference to House v The King is made so often as shorthand that it is occasionally timely to reflect on what was said:
[The] manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (504 - 505).
35 House v The King was referred to Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323:
Reference to an 'available range' of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.
The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some 'substantial wrong has in fact occurred' in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall [26] - [28].
36 A similar point was made by McLure P a little earlier in time in Samson v The State of Western Australia [2011] WASCA 173:
To say that manifest excess requires the sentence to be 'clearly beyond' the range of discretionary sentences available or 'significantly and unjustifiably' outside the customary range has the capacity to mislead. A sentence will be manifestly excessive if it is outside the range of a sound exercise of the sentencing discretion. The notion of a sentencing range is to accommodate the fact that there is no single correct sentence. Where it is appropriate and possible to identify a range of sentences customarily imposed, such a range does not establish the range of a sound sentencing discretion. Were it otherwise, sentences outside the customary range could not be imposed regardless of the particular circumstances of the case or because of broader considerations, including changes in the prevalence of an offence: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465; Akizuki [71]. [16]
37 Mr Prior correctly disclaimed reliance on any form of range. There are simply not enough examples. I have referred to Barbaro & Zirilli not for its comments about a range but to emphasise that the ultimate search is for error; that is, whether a substantial wrong has occurred.
38 The appellant accepts that the magistrate's approach to sentencing does not reveal any express error so the question on ground 1 becomes: Whether the sentences of imprisonment can be characterised as so excessive as to justify appellate intervention?
39 The appellant draws in aid remarks made in Rhatigan v Forbes [2009] WASC 368 and Hull v The State of Western Australia [2005] WASCA 194. The appellant, Hull, had been employed in the Albany Licensing Centre. She was a senior customer service officer with supervisory responsibility who falsely loaded a theory test and pass result for a licence for a friend. She later involved a fellow worker in the Licensing Centre to print off ownership details for a particular vehicle.
40 The appellant pleaded guilty in the District court to one count of corruption and one count of unlawful use of a computer. She received an aggregate sentence of 15 months' immediate imprisonment with a parole eligibility order.
41 On appeal, the majority (Wheeler JA, Roberts-Smith JA) allowed the appeal and suspended the term of imprisonment. Miller JA would have dismissed the appeal.
42 Wheeler JA and Roberts-Smith JA took a slightly different approach. Wheeler JA:
The offence involving unauthorised use of the computer pursuant to s 440A of the Criminal Code (WA) is one of relatively recent origin. It is to be found in the chapter of the Code dealing with stealing and like offences, so that it seems that Parliament regarded the gravamen of the offence as being the 'taking' of information, or the use of information, to which the offender had no entitlement. There is a tiered sentencing structure, so that the most severe penalty is reserved for persons who act in the forbidden way in order to obtain for another a benefit, pecuniary or otherwise, or cause to another a detriment which can be valued at more than $5000. The next in seriousness is such an offence committed in order to cause a benefit or detriment, but without reference to any particular value. The offence of which the appellant was convicted, being on indictment, is lower in the scale again and carries a statutory maximum of only 2 years' imprisonment. On summary conviction, the offence carries a maximum penalty of 1 year's imprisonment.
In relation to offending which carries a maximum penalty of 2 years' imprisonment, questions of whether the information was of value or not, and of whether there was any intention to cause any other person a benefit or a detriment may be put to one side, since, if they were present, those considerations would have put the offence into a more serious category for sentencing purposes. In relation to the level of offending with which we are concerned in the case of this offender, it would appear to me that there are a number of factors which need to be taken into account in determining where on the scale of seriousness an offence lies. The three factors which are most likely to be of importance, in the usual run of cases, would be the nature of the information to which access was gained (that is, factors such as its personal sensitivity, or the potential public mischief stemming from access), the quantity of information the subject of the access, and the purpose of the offender in gaining access [4] - [5].
43 Wheeler JA concluded:
On this occasion, the appellant gained access to very limited information, being only the name and address of the owner of a particular vehicle. In the circumstances of this case, there is nothing to suggest the information was of particular sensitivity; indeed, since the person had been in the vicinity shortly beforehand, it would have been open perhaps for the appellant to have obtained information about the person's name without access to the computer system, had there happened to have been anyone around who recognised that person. There is nothing in the circumstances of this case to suggest that the person's address was of particular sensitivity, and there are many other computer records (medical records spring to mind as perhaps an obvious example) which would generally be considered to be of a more personal and sensitive nature. Finally, the appellant's purpose was asserted to have been no more than the satisfaction of curiosity which was excited on the spur of the moment. When regard is had to all of those factors, the offending would appear to be capable of being categorised as in the lowest level of such offending.
Once that categorisation is made, in the context of an offence which carries what is, in any event, not a very high statutory maximum penalty, it would appear to me that, prima facie, a sentence of immediate imprisonment would be inappropriate [6] - [7].
44 Wheeler JA however noted:
The appellant's conduct plainly should attract a significant penalty. However, that is not so much because there was any particular risk to the public, or harm to the public, which could be shown to stem from her issuing of that single licence, but because, were the practice to become widespread amongst those with access to such computers, there would obviously in due course be significant public harm caused. Without in any way suggesting the analogy is a perfect one, there is some similarity with offences such as shoplifting, which are often not the cause of significant detriment to any person on any particular occasion, but which if committed by numbers of persons over time, result in a substantial burden on the community [9].
45 Roberts-Smith JA viewed the offences as serious:
It is not submitted on behalf of the appellant that the offences committed were not serious, as indeed, it could not have been. In R v Nath (1994) 74 A Crim R 115 at 119, Perry J said:
'A breach by persons holding public office of the duty to act honestly in the performance of their public duties is a most serious matter which should ordinarily attract a substantial penalty.' [16]
It is convenient at this point to make some brief comments about the relevance of the appellant's family circumstances. In extreme cases, a sentencing court may take into account serious illness suffered by a member of the offender's family where that family member will be subjected to an unusual measure of hardship as a result of the offender's imprisonment and where the offender will therefore be subjected to an unusual measure of hardship as a result of their imprisonment (Anderson v The Queen (1996) 18 WAR 244). There is a real prospect that the appellant's father may not survive her imprisonment even to the extent of the expiration of the non-parole period. Given this prognosis, to deprive the appellant of time with her father in the last period of his life is, in my view, a factor that would weigh against the imposition of a term of immediate imprisonment. Although such information was not before his Honour at the time of sentencing, it is material to which this Court may now have regard in deciding the appeal: s 31(2) of the Criminal Appeals Act2004 (WA) [19].
47 This extra factor distinguishes the result in Hull from the present case.
48 Roberts-Smith JA considered that there was an error of sentencing principle identified such as to allow the sentencing discretion to be exercised afresh. The sentencing principle identified in Hull by Roberts-Smith JA was the sentencing judge's concentration on the first limb of the Sentencing Act 1995 (WA) s 6(4).
49 The difference in reasoning between the judges in Hull means that there is no clear ratio decidendi. The judgment of Wheeler JA is of persuasive value. But, with great respect, I am unable to agree completely with her analysis at [6], [7].
50 The sensitivity of information obtained may be an aggravating feature in some cases but the converse does not follow. The gravamen of the criminality is in misusing power to obtain information for private purposes, whether sensitive or not.
51 I do not entirely accept the emphasis placed by the appellant on the fact that the unauthorised access by which information was obtained was done at the request of Ms Clohessy. The criminality is unlawful use of a restricted access computer system. There may be many reasons for use, including third party requests for personal information about them. Nor does it help much to say that a third party might have obtained the information lawfully. The issue of the computer system is still unauthorised for that purpose.
52 In Rhatigan v Forbes the appellant was sentenced to a total of 14 months' imprisonment in the Magistrates Court at Perth. That sentence followed a plea of guilty made on 17 August 2009. The offences for which the appellant was sentenced were 23 offences mainly for unlawfully accessing a computer.
53 The appellant was the Associate to a District Court judge and in the course of her work had access to a number of computer systems which she accessed over a three month period in order to obtain information about friends or others associated with her friends. On seven occasions she contacted one of her friends and passed on information she obtained from the database.
54 There was no suggestion that the appellant received any benefit or that her unlawful accesses facilitated any greater criminal purpose either on her own or of those to whom she divulged information.
55 In concluding the sentence should be suspended Hall J held:
It should be noted at this point that general deterrence does not always require a sentence of immediate imprisonment. Other sentences can have a general deterrent effect. In some cases the loss of position, employment, public humiliation and recording of a conviction, in themselves, can have very significant deterrent effects. That is not to say that in appropriate cases it will not be necessary to impose a prison sentence, both to give full effect to general deterrence and to reflect the seriousness of the offence.
…
Rehabilitation is a proper consideration, but it is not one that is confined to the question of whether the offender has drug or alcohol issues. Rehabilitation is concerned to identify and address the factors that contributed to the offender making the choices involved in committing the offences. In this case it was evident that there were issues relating to vulnerable personality, poor judgment and inappropriate associations. The appellant had recognised these factors and had indicated a resolve to move to a country town where she had family support and to change her lifestyle and friendship group [19], [22].
56 Hall J concluded that the sentence was manifestly excessive:
The appellant had very favourable personal antecedents. She was a young person with a good work history and no criminal record.
Unlawful access offences may fall into various categories. A person commits an offence of a more serious type if their unlawful access results in a benefit being gained for any person or a detriment being suffered by any person. If the benefit or detriment is more than $5,000 the maximum penalty for such an offence is 10 years' imprisonment. If a person unlawfully uses a restricted access computer system to otherwise gain or intend to gain a benefit or cause a detriment to a person the maximum sentence is one of five years' imprisonment. In any other case the maximum sentence is two years' imprisonment on indictment or 12 months' imprisonment if dealt with summarily. There was no allegation of benefit or detriment in this case. These offences fell into the least serious of the categories contained in s 440A.
The fact that the appellant had caused no detriment nor obtained any benefit for herself or another by her offending was a consideration that can be put to one side since, had those elements been present, it would have resulted in an offence of a more serious category for sentencing purposes. Nonetheless, it was important to recognise that unlawful access offences cover a range of potential conduct and these offences were of a less serious type than others provided for in the section. In this regard it should be noted that the comments of the magistrate regarding public concern for privacy and confidentiality and the need for general deterrence apply equally, indeed more acutely, to the aggravated forms of the offence.
In my view, one of the most significant mitigating factors was the circumstances in which the offending occurred. As I have previously noted, that was a factor which the magistrate only mentioned briefly. Perhaps that can be explained by the appellant's continuing concerns for her safety. However, in my view, had the factors I have referred to in respect of ground 2 been given appropriate weight, it would not have been possible to come to a conclusion that a sentence of imprisonment to be immediately served was the only appropriate sentence [40] - [43].
- I expressly agree with the comments at [42].
57 R v Stockdale [1995] VSC 181 was a Crown appeal against a sentence of 12 months' imprisonment effectively suspended for knowingly obtaining protected information contrary to the Social Security Act 1991 (WA) s 1312A.
58 The Court of Appeal dismissed the appeal partly because of the principles of Crown appeal outlined in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295. For this reason it has limited utility in setting a range of sentences. Speaking for the court, Hayne J:
In my view it is important to bear steadily in mind that each of the offences to which the accused pleaded guilty in this matter was an offence carrying a maximum penalty of no more than two years' imprisonment. To say, as was submitted on behalf of the Crown, that it should only be an exceptional case that warrants a penalty or sentence not involving a period of actual incarceration, in circumstances where the maximum penalty prescribed by Parliament is no more than two years, would in my view be to fetter the very general discretion given to a sentencing judge in ways that would be impermissible [20].
59 In Hull Wheeler JA seemed to reason to similar effect in the passage already quoted at [5].
60 If these authorities are cited in aid of ground 1.iv. and ground 2.iv. then the argument is misconceived. Imprisonment is an available penalty on a summary offence, although imprisonment to an aggregate term of less than 6 months is unavailable for State offences: Sentencing Act 1995 (WA) s 86.
Disposition
61 Unlike many in the community, police offices are given access to personal, confidential and private information about other people.
62 The nature of the data accessed in a particular case is a factor of course. Not all data is particularly sensitive or secret. It may be obtained elsewhere. But it is only one factor.
63 Police officers are public servants. They are entrusted with the power to access information by a compact with the public that they will do so only for the purposes of their work, not simply because they can.
64 The appellant repeatedly broke that compact when he accessed details about Ms Clohessy, whether for his own purposes or hers. He also accessed details about her mother.
65 The appellant has impressive references and excellent antecedents. If his access was on the spur of the moment, brought about through misjudgement because of the pressures he was under during a complex investigation, then immediate imprisonment may not be the only option.66 It is to be expected that a serving police officer will have excellent antecedents. In a sense that is a qualification for the job, and among other things is one of the reasons that a person is in a position to have access to confidential information.
67 The magistrate expressly had regard to the appellant's fall from grace and his uncertain employment prospects. These are matters that contribute to his punishment as the magistrate acknowledged.
68 The appellant's actions spanned many years. By March 2013 the appellant was not a first offender but a repeat offender. On each occasion the system warned him not to do what he did.
Ground 1 - A sentence of imprisonment is not an error
69 The accumulation of some of the sentences for unauthorised use of a restricted access computer system to reach the final sentence was appropriate and the total sentence does not exceed the proper exercise of a sentencing discretion.
70 The breach of the Telecommunications (Interception and Access) Act 1979 (Cth) was serious. The appellant gave information to Ms Clohessy which she was not entitled to have. It had the potential to undermine, perhaps fatally, an investigation. It was a slap in the face to the officers who had carriage of the investigation. If officers cannot trust their own to keep secrets, who can they trust?
71 The sentence of imprisonment imposed was well open as an exercise in discretion. I am unable to conclude that sentences of imprisonment for these offences, as structured by the magistrate, are so far beyond the proper exercise of a sentencing discretion as to manifest error. Imprisonment was clearly open in the circumstances.
72 Not only do I consider that the total sentence imposed is within the range of sentencing discretion, I am firmly persuaded that it is the correct sentence.
73 A total sentence of 9 months properly reflects the circumstances of the offence, the need for general deterrence and the considerable matters of mitigation.
74 The appeal on ground 1 is dismissed.
Ground 2 - Failure to suspend the sentence is not an error
75 Many of the same considerations raised in imposing a sentence are relevant to the question of suspension. The magistrate did separately consider them.
76 Other judicial officers might have suspended the sentence. That is not the test. Unlike Hull and Rhatigan v Forbes, there is no detectable error made by the magistrate. Moreover, there is no error demonstrated in failing to suspend the sentence.
77 The appeal on ground 2 is dismissed.
9
3