Director of Public Prosecutions v Brown
[2014] VCC 2315
•1 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. 14-00736
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG BROWN |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2014 | |
DATE OF SENTENCE: | 1 August 2014 | |
CASE MAY BE CITED AS: | DPP v Brown | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2315 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:DPP v Soylemez [2013] VCC 1577; Soylemez v The Queen [2014] VSCA 23.
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Ballek | Office of Public Prosecutions |
| For the Accused (Plea) | Mr A Malik | Victoria Legal Aid |
| For The Accused (Sentence) | Ms S. Westwood |
HIS HONOUR:
1 Mr Craig Brown, you have pleaded guilty to one count of misconduct in public office. Particulars of that charge are that at Port Phillip Prison between 1 June and 15 October 2013 you, being a public official, namely a prison officer pursuant to the Corrections Act 1986, in the course of or connected to your public office, without reasonable excuse or justification, wilfully misconducted yourself by bringing contraband into Port Philip Prison.
2 On your behalf, your counsel conceded that between August and October 2013 you illegally introduced into the Prison five mobile phones, up to seven SIM cards, a set of Allen keys, a set of tweezers and various items of food.
3 It appears that you were first approached to bring items into the prison by prisoners in August 2013. A prisoner offered you the sum of $500 to bring items of food into the prison. You were contacted by that prisoner’s brother and given a bag of frozen meat which you brought into the prison, putting it into a refrigerator from the prisoner later collected it.
4 Some days later, the same prisoner arranged for you to meet a person outside the prison who provided you with more food items and a further sum of $500.
5 You were later asked by the same prisoner to bring in some mobile phones and promised larger sums of money for doing so. It was indicated that you would receive $5000 in respect of each and that there was a prospect that prisoners would pay for a house for you and for a fully paid holiday for you. Five new mobile phones and six or seven SIM cards were brought into the prison over the following days.
6 Quantities of food from takeaway food outlets were introduced by you for prisoners on two occasions.
7 In addition, a prisoner asked you to provide a set of Allen keys and some tweezers which you did provide for him.
8 You were fully aware that each of the items brought in by you constituted contraband and that you were guilty of misconduct in bringing those items into the prison.
9 The significance of the Allen keys is that light fittings at the prison were secured by Allen key screws and that illegal substances or items could be stored within such light fittings. I say at this point that it is not suggested that you introduced into the prison drugs of any kind, although drugs were found in such light fittings at around the same time.
10 You were interviewed by police on 15 October 2013 and you made full admissions concerning your misconduct. You appear to have cooperated with police.
11 You made admissions of guilt when interviewed by police on the following day and formally pleaded guilty to this charge at the committal mention.
12 You are 32 years old. You were educated until halfway through Year 12.
13 You appear to have been a talented athlete until relatively recent times.
14 You have what is best described as a patchy employment record.
15 At the time of this offence you were living at home with your parents but had a reasonably long term relationship with your partner.
16 You were examined on 7 July of this year by Ms Carla Lechner, a clinical and forensic psychologist. She has provided a report for the purposes of this court hearing.
17 Ms Lechner has diagnosed you as having clinical depression, currently presenting with symptoms of Major Depression (in accordance with DSM - Diagnostic and Statistical Manual of Mental Disorders - V). This was partly reactive to or caused by your current situation and pending court hearing, but she considered that your history suggested that you had been low in mood for a number of years before the offence committed by you. She thought you may benefit from a medical review to determine if a prescription of psychotropic medication may be of benefit for you.
18 At your interview with Ms Lechner, you described yourself as feeling suicidal on some days. She found you to be extremely anxious but capable of reflecting on the impact that your behaviour has had on both yourself and others. She considered that you were easily overwhelmed by social and emotional factors which undermined your judgment and decision-making. She concluded that you appear to have been quite vulnerable to the “guiles” of seasoned prisoners who picked their mark when they approached you. You told Ms Lechner that you were not directly threatened by any prisoner but that you were fearful of what might happen if you refused their requests.
19 Ms Lechner concluded that from a purely psychological perspective, you would benefit from involvement with treatment services, which I understand to be a referral to a treating psychiatrist and possible treatment with psychotropic medication and therapy.
20 In her report, Ms Lechner states that she was provided with documentation, including letters from Dr B Panos, dated 24 April 2014, and two letters from Mr Ian Lohr, clinical psychologist, dated 30 November 2013 and 22 February 2014. I was not provided with those letters during the hearing of your plea but I was provided with them later.
21 The letter from Dr Bill Panos merely states that you were, as at 24 April 2014, suffering from a depressive illness and that you had been receiving counselling from a psychologist.
22 The two letters from Mr Lohr state that since these charges were brought against you, you have had difficulties eating and sleeping, that you have been feeling tired, stressed, anxious, worried, sad, unhappy and that you had been keeping to yourself, barely seeing your girlfriend.
23 These letters do not support the view of Ms Lechner that you had these issues before being apprehended for this offence. I prefer the views expressed by Mr Lohr which, effectively, are that you have experienced apprehension and anxiety as a consequence of these charges and in the lead up to various Court appearances associated with them.
24 On any view, the charge to which you have pleaded is a serious one. Generally, prison officers who engage in conduct such as yours must expect that an immediate custodial sentence will be imposed. Your offending involved a gross breach of your duties to prisoners, to your employers, and to the community generally. It was a breach of the duty of trust owed by you.
25 In determining an appropriate sentence, I am required to have regard to a number of matters which are set out in s5(2) of the Sentencing Act.
26 These include:
· That the maximum penalty Parliament has prescribed for this offence is 10 years imprisonment;
· The nature and gravity of the offence which I consider here to be a serious one;
· I am required to take into account your culpability and responsibility for the offence. Here, I accept that you were approached by prisoners to bring the contraband into the prison and that it was not initially your idea. However, I do not consider that this factor detracts from your culpability and responsibility for the offence;
· I take into account that you pleaded guilty effectively at the earliest possible stage;
· I also take into account your previous character, in particular that you have no prior convictions of any kind.
27 Principles of specific and general deterrence are of importance here. In particular, I consider general deterrence to be the principal matter that I must take into account. A strong message should be sent to persons occupying public office that such behaviour will be dealt with firmly by the Courts.
28 Your counsel on your behalf has made a number of submissions concerning matters that I should take into account when assessing penalty, which, to a large extent, I accept. In particular, it was stressed that:
(a)You entered a plea of guilty at the earliest time;
(b)You have demonstrated true remorse for your actions;
(c)You have no prior convictions;
(d)You made full and frank admissions to police. In the absence of those admissions, it is unclear what evidence would have been available to prosecute this charge against you;
(e)There are reasonable prospects for your future rehabilitation;
(f)A sentence of imprisonment will be likely to weigh more heavily on you having regard to the fact that you have been, and were at the time of this offence, serving as a prison officer;
(g)A sentence of imprisonment is likely to weigh more heavily on you having regard to your depression and vulnerable personality.
29 To an extent at least I accept those submissions.
30 Both counsel referred in their submissions to an earlier case that came before this court and went on appeal to the Court of Appeal, a matter of DPP v Soylemez[1], in August 2013. That was a matter involving another prison officer who had brought contraband into a Correctional Facility for the use of a prisoner therein. At first instance, Judge Stuart of this court imposed a sentence of two years and three months’ imprisonment with a non-parole period of 15 months. Before the Court of Appeal[2], Mr Soylemez sought leave to appeal against the severity of that sentence. His application was refused. The court did not consider that the sentence was arguably excessive, much less obviously so.
[1] [2013] VCC 1577
[2]Soylemez v The Queen [2014] VSCA 23
31 There were a number of distinguishing features between the circumstances of Mr Soylemez' case and this one.
· Firstly, in Soylemez, the prison officer introduced heroin into the prison.
· Secondly, you had been a prison officer for approximately one year before your offending conduct; whereas Mr Soylemez was far more experienced, having been a prison officer for some nine years.
· Thirdly, it was submitted by your counsel at least that your conduct did not represent mere greed, but was at least in part motivated by a desire to assist your ill partner in the treatment of her suspected Multiple Sclerosis. There was no evidence before the court concerning your former partner’s health. There was some reference to her health by you in your interview with police but no evidence from her or of any of her medical practitioner concerning her health before this Court and I place little weight on that submission. Rather, I consider that there were payments made to you by or on behalf of prisoners which were considerable and promises made to you of further substantial payments and rewards. I am satisfied that your conduct was, in the main part, motivated by greed.
32 There were however similarities in the cases of Mr Soylemez and this case:
· Both of you had no prior convictions;
· Both of you pleaded guilty at an early time;
· Both of you were considered by psychologists to be good prospects for rehabilitation.
33 There were some matters on the other hand that arguably favoured Mr Soylemez receiving a more favourable sentence than you:
· In his case there had been a substantial delay in the matter coming before the courts which was not the case here;
· Mr Soylemez had three children at home aged between two and nine years and the trial judge in that case expressed some concern that the burden of looking after those children would fall upon his wife, who had limited English language skills and was unemployed.
34 I have come to the conclusion that the nature of your offence is somewhat less serious than the case of Soylemez. I consider that the introduction of heroin into the prison system is a more serious offence than yours. That is not to say that your offending was unimportant or trivial. The introduction of telephones had the potential to affect prison discipline by allowing prisoners to communicate between themselves at any time and to communicate with others outside the prison system. As Judge Stuart put it in his sentencing reasons in Soylemez, prohibited items can become currency in the prison system, corrupting that system. It also had the potential to affect prison discipline by reason that prisoners would have knowledge that there existed within the system a corrupt prison officer.
35 You may not have been aware of it at the time but it is likely that the initial requests for food items and the payment of generous sums of money to you in return for your doing so were part of a process whereby you would be in a difficult position to later refuse further requests for so called favours. Because you had taken money for breaching prison rules and because prisoners knew that you had done so, you left yourself open to be pressured to commit further and more serious offences. As your counsel described it, it was a process where those prisoners showed you the bait and manoeuvred you onto the hook.
36 Your counsel has submitted that it would be appropriate to sentence you to a Community Correction Order or to a term of imprisonment wholly or partially suspended and I accept that the date of your offending does permit me to order that a term of imprisonment be suspended.
37 Taking into account all of the foregoing matters, I have determined that it is necessary to sentence you to a term of imprisonment. I accept that, because of your prior occupation as a prison officer, your sentence is likely to weigh more heavily on you than would otherwise be the case.
38 However, the importance of the principle of general deterrence is of major importance in circumstance of this case. I have come to the conclusion that a Community Corrections Order or a suspended sentence (in whole or part) would not be appropriate.
39 Even without any special training in such matters, ordinary members of the community would have no doubt that the bringing of contraband into a prison by prison officers at the request of one or more prisoners was a serious breach of the prison disciplinary system. In fact, you had had specific training concerning these matters. In your record of interview you acknowledged that you were well aware that to bring such contraband in would constitute a breach of the law.
40 The fact that you accepted money in return for doing so is an aggravating feature of you offence. Prisoners referred to the likely payment of further more substantial sums to you and, in addition, referred to the provision to you of a house and of an all-expenses paid holiday to an island in the Whitsundays.
41 Whilst it may be the case that you have a somewhat vulnerable personality and might be easily lead astray by others, these were not issues that were mentioned in the reports from your treating psychologist.
42 I have little doubt that the primary motivation for your offending was greed.
43 Stand up please, Mr Brown..
44 Craig Brown, you are sentenced as follows:
· On the charge of misconduct in public office, you are sentenced to be imprisoned for a period of 15 months.
· I set a non-parole period of nine months before which you are eligible for release on parole.
45 But for your plea of guilty, I would have imprisoned you for a period of two and a half years with a non-parole period of 18 months.
46 I note that you have spent two days in pre-sentence detention in relation to the matter and direct that that period shall be taken into account in calculation of your date of release.
47 Correct me if I am wrong, but were there ancillary orders sought? Did I make them on the earlier occasion?
48 MR BALLEK: There was a disposal order and Your Honour signed that on the previous occasion.
49 HIS HONOUR: Are there any other matters that I should deal with?
50 MR BALLEK: No, Your Honour.
51 HIS HONOUR: Thank you.
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