Director of Public Prosecutions (NSW) v Fordham; Director of Public Prosecutions (NSW) v Byrne

[2010] NSWSC 958

CITATION:	DPP (NSW) v Fordham; DPP (NSW) v Byrne [2010] NSWSC 958
HEARING DATE(S):	19 August 2010
JUDGMENT DATE :	27 August 2010
JUDGMENT OF:	Fullerton J
DECISION:	Orders 4 and 5 made on 20 July 2010 in DPP (NSW) v Fordham; Byrne; TCN Channel Nine Pty Ltd [2010] NSWSC 795 are amended and will now read as follows: 4. In respect of the offence laid pursuant to s 6(1) of the Listening Devices Act that on 28 May 2008 Mr Fordham knowingly communicated a report of a private conversation, I find the offence proved but dismiss the summons as provided for in s 10(1)(a) of the Crimes (Sentencing Procedure) Act. 5. In respect of each of the four offences against Mr Byrne for breaches of s 5(1)(a) and s 6(1) of the Listening Devices Act, I find the offences proved but dismiss each summons as provided for in s 10(1)(a) of the Crimes (Sentencing Procedure) Act.
CATCHWORDS:	SENTENCE - offences under the Listening Devices Act 1984 - sentencing discretion provided for in ss 10 and 10A of the Crimes (Sentencing Procedure) Act
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Listening Devices Act 1984
CATEGORY:	Sentence
CASES CITED:	DPP (NSW) v Fordham; Byrne; TCN Channel Nine Pty Ltd [2010] NSWSC 795 Lawrence v NSW Police Service [2004] NSWSC 59; 144 A Crim R 396 R v Paris [2001] NSWCCA 83
PARTIES:	Director of Public Prosecutions (NSW) Ben Thomas Fordham Andrew Byrne
FILE NUMBER(S):	SC 2009/11095; 2009/11097
COUNSEL:	J Pickering B McClintock SC/H Dhanji
SOLICITORS:	Director of Public Prosecutions (NSW) Johnson Winter & Slattery

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FULLERTON J

27 AUGUST 2010

2009/11095 DIRECTOR OF PUBLIC PROSECUTIONS v BEN FORDHAM
2009/11097 DIRECTOR OF PUBLIC PROSECUTIONS v
ANDREW BYRNE
REMARKS ON SENTENCE

1 HER HONOUR: On 20 July 2010 I published reasons for finding offences under sections 5 and 6 of the Listening Devices Act 1984 proved against Mr Byrne and an offence under s 6 proved against Mr Fordham (see DPP (NSW) v Fordham; Byrne; TCN Channel Nine Pty Ltd [2010] NSWSC 795). I stood the question of sentence over to 19 August 2010. Counsel who appeared at the hearing also appeared on sentence.

2 The offences, and the circumstances in which the offences were committed, are set out at length in that judgment. In summary, Mr Byrne caused a listening device to be used to record a private conversation on 21 May 2008 and thereafter communicated a record of that private conversation to the viewing public on repeated occasions on 28 and 29 May 2008 during the broadcast of A Current Affair. This conversation was referred to in the proceedings as “the car conversation”. He also communicated to the viewing public on 28 May 2008 a record of a second private conversation he knew had been recorded in breach of the Listening Devices Act. This was referred to as “the mobile conversation”. Mr Fordham actively participated in communicating a report of that private conversation in his capacity as the reporter of the segment that aired on A Current Affair on 28 May 2008.

3 Section 11 of the Listening Devices Act (“the Act”) provides for a maximum penalty of imprisonment not exceeding 2 years or a fine not exceeding 40 penalty units, or both, for each of the breaches of the Act found proved. Accordingly, Mr Fordham is exposed to a maximum penalty of 2 years imprisonment and a fine of $4400, or both, since only one offence was found proved against him. Mr Byrne is exposed to the same maximum penalty but, in his case, for each of the four offences found proved against him. In the calculation of sentence in his case principles of totality apply.

4 Common law sentencing principles and, where relevant, the statutory principles embodied in the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”), together with the various sentencing options provided for in that Act, fall to be considered in the imposition of a penalty that is appropriate for each offence having regard to the subjective circumstances of each offender.

5 In opening the case for each of the defendants Mr McClintock SC submitted that they should both be afforded the benefit of the sentencing discretion provided for in s 10 and/or s 10A of the Sentencing Act.

6 Section 10 provides as follows:

10 Dismissal of charges and conditional discharge of offender
(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
(a) an order directing that the relevant charge be dismissed,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1) (c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.

(4) …

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

7 Section 10A provides:

10A Conviction with no other penalty
(1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

(2) Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912 , to be a sentence passed by the court on the conviction of the offender.

8 The Crown conceded that s 10A was an available sentencing option but submitted that I should not proceed to sentence under s 10 not only because the discretionary factors in s 10(3) do not present in the circumstances of this case but also because dismissing the charges, and not recording convictions, would fail to address the need for general deterrence, one of the sentencing objectives in s 3A of the Sentencing Act.

9 It will be necessary, in due course, to consider these submissions both in the context of the particular offending found proved against each of the defendants, the evidence tendered on sentence in their respective cases and the attitude of the Crown to what is a lenient sentencing outcome for any offender even if sentence is passed under s 10A of the Sentencing Act. In addition, the way in which the sentence proceedings were conducted, or perhaps the way that they evolved with evidence led at a very late stage of the proceedings, also has a particular bearing on the sentencing outcome. It should not pass without some analysis and comment. I will return to that issue later.

10 Save for evidence bearing upon what I am satisfied is the established good character of each of the defendants, the evidence relied upon by Mr McClintock in seeking to persuade me that either the statutory grounds for not proceeding to conviction at all under s 10 of the Sentencing Act are satisfied or, in the alternative, that I could properly dispose of the proceedings under s 10A without imposing any other penalty other than entering a conviction was, save for one piece of evidence, drawn from the evidence led by the Crown in the substantive proceedings.

11 Despite there being considerable overlap in that evidence, and some overlap in my intermediate findings of fact in the course of determining whether the offences charged were proved to the criminal standard, the offences that were ultimately found proved are liable to produce different sentencing consequences given that Mr Byrne is to be sentenced for four offences that are objectively more serious than the single offence found proved against Mr Fordham.

12 That said, in the particular circumstances of this case, the multiple breaches of s 6(1) of the Act by Mr Byrne do not necessarily reflect a persistent disregard of the law on his part, or signify that his role in communicating the mobile conversation and the car conversation by the broadcast of A Current Affair on 28 and 29 May 2008 was elevated, relative to Mr Fordham, in the usual way in which the respective roles of co-offenders are assessed for sentencing purposes. Rather, the number and type of offences Mr Byrne was charged with seems to reflect the division in function between his role as a producer of A Current Affair and Mr Fordham’s role as a reporter on that program. In particular, the evidence reveals little practical distinction in the degree to which they involved themselves in the preparation of the programmed segments for broadcast, or in their dealings with Mr Tolmie in the illegal recording of the car conversation, and in their dealings with him thereafter.

13 While I am conscious that Mr Fordham is only to be sentenced for a single offence against s 6(1), and that I must disregard the evidence led in support of the charges which were dismissed, there can be no doubt that he was aware that a listening device had been installed in the car for the express purpose of recording his conversation with Mr Markham – a conversation styled by him so as to lure Mr Markham to approve of the escort being killed - and that he had the hope or even the expectation that the product of that recording would be used for journalistic purposes. I emphasise, however, that he is not to be sentenced for that conduct since it is not a criminal offence to know that someone else is using, or has caused to be used, an unauthorised listening device, or to participate in a private conversation that is being secretly recorded by means of such a device.

14 Before moving to consider the evidence bearing upon sentence, I accept that it is beyond the legitimate reach of these sentencing remarks to offer my own judgment of the news value of the story that was broadcast on A Current Affair on 28 and 29 May 2008, although I suspect that no one is in any doubt as to what my views are. It is, however, appropriate to publically record the fact that I am satisfied beyond any question that Mr Dunshea was at all times used as an innocent pawn in pursuit of Mr Tolmie’s criminal objectives, and that he has had no dealings with Mr Markham, or any friends of Mr Markham’s, at any time. While it may be that neither Mr Byrne nor Mr Fordham were aware of that fact at the time of their dealings with Mr Tolmie, and that they may have at all times genuinely believed that Mr Dunshea was the target of a contract killing, openly sanctioning Mr Tolmie’s decision to publically expose his uncle, and assisting him to do so rather than encouraging him to inform police, displays an appalling lack of judgment on the part of two senior journalists who are otherwise held in high esteem by their professional colleagues.

15 In considering the significance of the studio interview with Mr Tolmie for the purposes of determining whether or not the car conversation was a private conversation, I recorded an incidental finding of fact to the effect that both Mr Byrne and Mr Fordham had resolved, with or without the concurrence of senior personnel within TCN Nine, to deliberately withhold from police the information they had in their possession after the recording of the car conversation in order to exploit that information for journalistic purposes (see DPP (NSW) v Fordham; Byrne; TCN Channel Nine Pty Ltd at [31]). That much is obvious given that although they told Mr Tolmie that the information would be made available to police, the recordings of the car and mobile conversations were not given to police until 30 minutes before the broadcast of A Current Affair on 28 May 2008, some days later. At the time of publishing my reasons I was unaware that both defendants had been charged with a breach of s 316(1) of the Crimes Act 1900 because of that conduct and that proceedings were pending in the Local Court. I was made aware of that fact for the first time in the sentencing proceedings. While it remains my view that relevant information was deliberately withheld from police, where a discrete criminal offence concerning that conduct remains to be prosecuted in another court, I am obliged to disregard that finding for sentencing purposes in this case.

16 On the other hand, Mr McClintock relied on the fact that the recordings were ultimately given to police on 28 May 2008, that Mr Fordham and Mr Byrne provided statements to police at that time concerning circumstances in which the recordings were made, and that they have since then indicated their willingness to give evidence for the prosecution in the proceedings where Mr Markham is charged with recruiting another to carry out a criminal activity contrary to s 351A of the Crimes Act, as entitling them to a lesser penalty in accordance with s 23 of the Sentencing Act.

17 In deciding whether to impose a lesser penalty, and the nature and extent of that penalty, s 23(2)(e) obliges me to consider the timeliness of the assistance provided. In this case, as I have already indicated, the assistance was not delivered in a timely fashion at all. I am not prepared to draw the inference contended for by McClintock that either or both Mr Fordham or Mr Byrne were distracted by other professional commitments, or that they were for any other reason uncertain about their obligations. There was simply no evidence upon which those inferences could be drawn. While it is true that the delay in furnishing the information did not apparently diminish the quality of the assistance or expose anyone to risk (simply because, in the peculiar circumstances of this case, there was never any intention that an escort be killed), it is nevertheless a matter which does not operate in the defendants’ favour. That said, I will take their past and future assistance into account for sentencing purposes, while remaining conscious of the need to ensure the reduced penalty is not unreasonably disproportionate to the nature and circumstances of the offence as mandated by s 23(3) of the Sentencing Act.

18 In the course of submissions directed to an assessment of the objective seriousness constituted by Mr Byrne’s breaches of s 6 of the Act, Mr McClintock submitted that I would be satisfied that his knowing communication of the car conversation and the mobile conversation (both recorded by the use of an unauthorised listening device) was the result of an error in judgment on his part rather than a deliberate breach of the law. He advanced the same submission in respect of Mr Fordham’s offending.

19 He did not submit that the same conclusion was open in relation to Mr Byrne’s breach of s 5 of the Act. Since Mr Byrne did not give evidence in the substantive proceedings or on sentence, and where his statement to police is silent on the question, I find it difficult to come to any conclusion other than that he caused a listening device to be used to record the conversation between Mr Fordham and Mr Markham in deliberate breach of the law. That is not because Mr Byrne exercised his right to remain silent. However, in the absence of any explanation from him as to what, if anything, he thought or believed about the lawfulness of using a secret recording device, or what steps he took (if any) to settle any doubt he might have had about that question, it is difficult to conceive of any other finding. I am conscious of the need, however, to be satisfied beyond reasonable doubt that he deliberately breached the law if I am to factor that finding into the penalty to be imposed for that offence.

20 I will return to resolve that question since, for the following reasons, I am not satisfied that either Mr Byrne or Mr Fordham deliberately breached the law in respect of the offences under s 6(1) of the Act, in the sense that they knew that in broadcasting the segment including the car and mobile conversations they were breaking the law. The question was resolved in their favour in the following way.

21 Initially, Mr McClintock submitted that I would be satisfied that the breach of the prohibition on communicating a private conversation recorded in breach of the Listening Devices Act by both Mr Byrne and Mr Fordham was the result of an error of judgment. I made it clear that I was not persuaded by that submission given that there was no evidence at all as to their actual state of mind or intention at any time prior to the broadcast on 28 May, and no suggestion in the evidence that either Mr Byrne or Mr Fordham had sought advice from a lawyer, or from an executive within TCN Nine, as to whether it was appropriate to proceed to broadcast a record of the mobile and car conversations. Mr McClintock then sought a short adjournment.

22 When the hearing resumed a statement from Mark O’Brien, Mr McClintock’s instructing solicitor, was tendered. The Crown did not object to the tender and did not require Mr O’Brien for cross-examination. The statement was dated 19 August 2010 - the date of the sentence hearing - and had the word “Draft” blacked out. It is important to set out the statement in full:

1. I am a Partner at Johnson Winter & Slattery and for many years have acted for TCN Channel Nine Pty Ltd (Nine). From time to time I advise Nine regarding significant legal issues which may arise from a program Nine intends to broadcast.

2. My contact with Nine to provide such pre-broadcasting advice has always been with an in-house counsel at Nine.

3. On 26 May 2008 I had a telephone discussion with Kiah Wood, Corporate Counsel at Nine about a proposed story concerning James Markham. Kiah asked me for advice about the Listening Devices Act and I agreed to attend Nine’s offices at Willoughby the following day.

4. On 27 May 2008 I met Kiah Wood in her office at Willoughby and I viewed a tape in uncut form of a program which “A Current Affair” proposed to broadcast concerning James Markham. After viewing the program and discussing with Kiah Wood the background circumstances, I gave her certain advice concerning the Listening Devices Act .

5. On the following day, 28 May 2008, I again attended the offices of Nine at Willoughby where I met with Kiah Wood, Ben Fordham and Andy Byrne when I viewed a final cut of the program. At that meeting I gave them further advice concerning the Listening Devices Act and the Crimes Act . (emphasis added)

23 Without knowing what legal advice Mr O’Brien gave Mr Byrne or Mr Fordham I enquired of Mr McClintock how the tender of the statement advanced his submission that his clients did not deliberately break the law but had failed to exercise proper judgment, or had made an error of judgment. He invited me to draw the inference that Mr Byrne and Mr Fordham were advised (wrongly) that it would not be a breach of the law were the edited program broadcast and that they acted on that advice. This, it was submitted, more than adequately qualified as an “extenuating circumstance” under s 10(3)(c) of the Sentencing Act which, together with Mr Byrne’s and Mr Fordham’s prior good character and their lack of criminal antecedents, justified the exercise of the sentencing discretion provided for in s 10 in their favour.

24 The Crown Prosecutor submitted I would not draw the inference that Mr O’Brien gave incorrect legal advice, despite the fact that his statement was untested in cross-examination when the content of the advice and any discussion about it might have been explored. On the other hand, the Crown Prosecutor did not invite me to conclude that Mr O’Brien gave advice that the broadcast of the final edited version of the program would constitute a breach of the Act and that Mr Byrne and Mr Fordham disregarded that advice and in that way deliberately broke the law. The issue was left in a wholly unsatisfactory state when I adjourned the proceedings for sentence to a later date

25 After considering the matter further, and conscious that the Legislature in enacting s 10 of the Sentencing Act has specifically provided that some offending, even if proved, should allow an offender a second chance to maintain an unblemished reputation, I came to the view that if I were to proceed to sentence on the basis that the advice from Mr O’Brien was in fact that there would be no breach of the law in broadcasting the edited version of the program, I would need evidence of that fact. I reconvened the Court and informed counsel of my concerns. After confirming his instructions Mr McClintock informed me that Mr O’Brien had advised that there would be no breach of the Listening Devices Act occasioned by the broadcast of the final version of the program and that he would swear an affidavit to that effect. Despite the fact that the Crown Prosecutor was afforded a further opportunity to consider his position, he maintained the position that he did not wish to cross-examine Mr O’Brien.

26 In the result Mr O’Brien swore an affidavit dated 20 August 2010 which was, by agreement, forwarded to chambers after being served on the Crown. The affidavit is in materially different terms to what Mr McClintock advised was the position. There was, however, no change in the Crown’s attitude. I set out the relevant paragraphs of the affidavit in full:

1. …

2. On 19 August 2010 I signed a statement which was, on the same day, tendered in these proceedings. I confirm that the contents of this statement are true.

3. As stated at paragraph 5 of that statement I attended at the offices of TCN Channel Nine Pty Ltd on Wednesday 28 May 2008. After I had seen the final cut of the segment, which was the version that was broadcast on 28 May 2008, I gave legal advice to Kiah Wood, Corporate Counsel of the Nine Network, and to Ben Fordham and Andy Byrne that, while the Listening Devices Act was legislation of some complexity, broadcast of the segment was unlikely to constitute a breach of that Act . (emphasis added)

27 I am reluctant to criticise the Crown Prosecutor’s decision not to challenge or test Mr O’Brien’s evidence, particularly where he regarded himself as discharging his duty of fairness in not doing so. However, I find it frankly astounding that an experienced solicitor could have rendered the advice Mr O’Brien deposes to having rendered given the plain language of s 6 of the Listening Devices Act, legislation that is neither protean nor complex, and where recent case law leaves no room for doubt as to its interpretation and application (see Lawrence v NSW Police Service [2004] NSWSC 59; 144 A Crim R 396 at 403). I also find it curious, to say the very least, that the legal advice that broadcasting the program would be unlikely to constitute a breach of the Act surfaced for the first time (so far as I am aware) in the course of submissions on sentence, and only then, when it was clear from my exchanges with counsel, that I was not prepared to accept the submission that the criminal conduct of both men might be explained by an error of judgment. While it is not the Crown’s role to secure the heaviest penalty, just as it is not the Crown’s role to secure a conviction at any cost, the position the Crown has taken in not testing Mr O’Brien’s evidence in cross-examination, perhaps so as to have him explain the basis of his advice and to give an account of any discussion he had with Mr Fordham or Mr Byrne at the time he rendered it, leaves me with no choice but to accept Mr McClintock’s submission that the breaches of s 6 by both Mr Fordham and Mr Byrne were committed in extenuating circumstances. I make that finding not on the basis that they were advised that there was no breach of the Act in broadcasting the edited segment of the program, the position originally forecast by counsel, but that they were in receipt of advice that this would be unlikely. While there is no direct evidence that they relied on that advice in exercising what must have been their own independent judgment as to whether they would take the risk of prosecution under the Act (or that they sought clarification from Mr O’Brien as to the extent of any risk), I am prepared to draw the inference that they relied upon the advice in its terms and that they did not deliberately break the law or act in blatant disregard of it.

28 I also take into account, under s 10(3)(a) of the Sentencing Act, their good character and lack of criminal antecedents.

29 Mr Fordham’s breach of s 6(1), constituted by his interview with Mr Byrne about the mobile conversation as set out in [55]-[63] of my judgment, whilst not trivial is nevertheless offending in the lower range of offending constituted by a breach of the section. I consider Mr Byrne’s offending against s 6 as objectively more serious although, as I have made clear, I also consider that it was offending committed in extenuating circumstances. It is not necessary for me to find that the offence is trivial before the sentencing discretion under s 10 is enlivened (see R v Paris [2001] NSWCCA 83).

30 By contrast, Mr Byrne’s breach of s 5(1)(a) of the Act was not committed in extenuating circumstances. I have already noted that there is no evidence that he sought legal advice concerning the legality of the use of a listening device on or before 21 May 2008. Such advice as was rendered by Mr O’Brien was clearly after the recording of the car conversation had been made. That said, the advice that there was unlikely to be a breach of the Act in broadcasting the segment on 28 May, might be interpreted to carry the further advice that there may have been no breach of s 5 of the Act either, given that a breach of s 6(1) requires proof that a record of a private conversation obtained in breach of the Act was communicated. Again, I make the point that where there is no evidence of Mr O’Brien’s analysis of the offence-creating provisions in the Act, either in the affidavit read without objection or under cross-examination, I remain unable to see how any competent practitioner experienced in the law could have come to the view that there was unlikely to have been a breach of s 5 of the Act without a complete misreading of a section which is cast in the clearest possible terms.

31 I do not regard the breach of s 5 of the Act as trivial. Mr McClintock did not submit otherwise. He did submit, however, it was not a serious breach of the section where, even allowing for a mixture of motives on Mr Byrne's part in pursuing the story, his conduct in arranging for the conversation in the car to be secretly recorded exposed arrangements for the kidnap, torture and murder of a male escort. This was said to be a finding open to me, and one that does not derogate from the protection of privacy as the policy which underpins the operation of the Act. I reject that submission. I regard the offending as in the mid range. The provision of penal consequences for causing an unauthorised recording of a private conversation to which a person is not a party (as was the case here), and the intention on the part of the Legislature to make no provision for defences of the kind that are provided for in s 5(3)(b) of the Act where a listening device is used by someone who is a party to the private conversation, reflects the fact that the Legislature intended that some private conversations should be afforded the utmost protection, whatever the circumstances. The fact that the Act makes express provision for the issue of a warrant to use a listening device where the commission of a criminal offence is suspected, simply underscores the obvious - namely that it is neither the role nor function of a journalist to assume for themselves the role of a private investigator any more that it is the role of any individual to do so.

32 While I have reason to doubt whether journalists always give active consideration to the protection of privacy as a personal right, I cannot overlook the fact that Mr Byrne is viewed by his colleagues as a considered, responsible and hard-working journalist who has consistently demonstrated, in his dealings with his profession and the public, the highest standards of integrity and respect for the law. Mr Llewellyn, the executive producer of Sunday Night and News and Public Affairs at Channel 7, has never known him to embark on a contentious story without careful consideration of the consequences, or to behave in a secretive or underhand manner in his dealings with the public or with senior management. He also expressed the view that he would be surprised if the facts surrounding the filming of the program were not known to those in senior management at TCN Nine. There is some support for that view in the email Mr Byrne forwarded to Mr Gyngell which was tendered in the substantive proceedings. However, since no reply from Mr Gyngell was tendered either in the substantive proceedings or on sentence, and where there is no other indication of the attitude of anyone else in senior management to the use of the listening devices by journalists in the employ of the company, there is no conclusive evidence of that fact. I am conscious in making that observation that TCN Nine Pty Ltd was also charged with multiple breaches of the Listening Devices Act - a prosecution which was unsuccessful because of the failure on the part of the Crown to prove its case in accordance with established principles where criminal offences are alleged against a corporation. I also appreciate that Mr Byrne may well have found himself in an invidious position as a co-defendant with his former employer in the substantive proceedings and in a difficult position, from a broader industry perspective, at the time of the sentence proceedings, were he to give evidence of what senior management at TCN Nine may have known about the installation of a listening device in a company vehicle and the outfitting of Mr Tolmie with a listening device by TCN Nine technicians.

33 It is not open to exercise the power under s 10 of the Sentencing Act in order for Mr Byrne to avoid the consequences of having a criminal record. I am, however, conscious of the fact that he has already been the subject of considerable media attention and public comment and I accept that has been productive of shame and embarrassment. In considering whether the discretion under s 10 should be extended to the breach of s 5 of the Listening Devices Act, I am entitled to take the extra curial punishment he has suffered into account, and I do so. I also accept and take into account that as a direct consequence of these proceedings he has a renewed appreciation of his obligations as a journalist to comply strictly with the law despite the exigencies and pressures a producer of a current affairs program might be subject to in bringing to public attention those issues and concerns that are judged to be in the public interest.

34 I am confident that the salutary experience of this public prosecution, and the public attention that it has attracted, will act as a personal deterrent, such that I have every confidence he will not reoffend. I am also hopeful that it will send a resounding signal to the profession generally that the prohibitions provided for in the Listening Devices Act will be ignored at their peril since leniency will be unlikely to be extended to those who offend against them simply because they are journalists in pursuit of a story. Were it not for the fact that Mr Byrne has assisted the police and has confirmed, through his counsel, his preparedness to give evidence in proceedings against Mr Markham, if that is necessary, I would have had no option but to record a conviction against him. However, for the reasons I have been at pains to make clear, and in the particular circumstances of this case, I do not consider that is the inevitable sentencing outcome. Accordingly in respect of the breach of s 5 of the Listening Devices Act I also propose to afford him the benefit of s 10 of the Sentencing Act.

Orders

35 Some revision of the orders made on 20 July 2010 in DPP (NSW) v Fordham; Byrne; TCN Channel Nine Pty Ltd [2010] NSWSC 795 is needed to reflect my findings. (It is the shared view of counsel that power to amend the orders sources from s 43 of the Crimes (Sentencing Procedure) Act.)

36 Orders 4 and 5 are amended and will now read as follows:

4. In respect of the offence laid pursuant to s 6(1) of the Listening Devices Act that on 28 May 2008 Mr Fordham knowingly communicated a report of a private conversation, I find the offence proved but dismiss the summons as provided for in s 10(1)(a) of the Crimes (Sentencing Procedure) Act.

5. In respect of each of the four offences against Mr Byrne for breaches of s 5(1)(a) and s 6(1) of the Listening Devices Act , I find the offences proved but dismiss each summons as provided for in s 10(1)(a) of the Crimes (Sentencing Procedure) Act.
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