Director of Public Prosecutions v McGovern

[2019] VCC 2100

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01635

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM MCGOVERN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2019
DATE OF SENTENCE:	13 December 2019
CASE MAY BE CITED AS:	DPP v McGOVERN
MEDIUM NEUTRAL CITATION:	[2019] VCC 2100

REASONS FOR SENTENCE
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Subject:

Catchwords:  Misconduct in public office; Prison officer; Contraband; Tobacco; USB sticks; Protection of community; Undertaking to give evidence against others; Burden of imprisonment

Legislation Cited:

Cases Cited:DPP v Zammit [2018] VCC 2035; Gopinath v The Queen [2019] VSCA 172;

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Gurry	Office of Public Prosecutions
For the Accused	Mr P. Tiwana	Dribbin & Brown

HIS HONOUR:

1Adam Leigh McGovern, you have pleaded guilty to one charge of misconduct in public office contrary to common law.  The maximum penalty for that offence is 10 years imprisonment. 

2You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence.

3You have no prior convictions, subsequent convictions, or outstanding charges.

4A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

5On 14 July 2014, you joined Corrections Victoria and on 2 September 2014, graduated as a prison officer.  Between January and June 2018 you were employed at Marngoneet Correctional Centre, and following approaches to you by a prisoner Son Pham, you agreed to bring tobacco into the prison for him.  Tobacco was a banned substance in the corrections system from 1 July 2015.

6The tobacco was provided to you by relatives of Pham's, together with the sum of $2,000 for each occasion that you provided it to him.  This occurred on four or five occasions and you concealed the tobacco in your boots in order to bring them into the prison.  On one occasion, the tobacco pouch also contained one or two USB sticks. The tobacco and money were provided to you by Pham's relatives by throwing a bag containing both over the fence of your home in Geelong.

7On 25 June 2018, you were arrested and interviewed by investigating police, who were acting on information that illicit items were being introduced into the prison.  Your home was also searched and $8,515 in cash was located there.  These moneys had been paid to you by Pham's relatives.  You made full admissions to the investigators and resigned that day from your employment.  The pouches of White Ox tobacco and the USB sticks were not recovered and so their contents were not examined.  Your counsel, however, informed the court that the USB sticks were thought to contain poor quality films.

8It is plain that your offending is a serious breach of trust that was placed in you by the community and the correctional system.  Your relationship with Pham and his relatives was corrupt and by your conduct you compromised the security of the correctional system.  Whilst it was submitted by your counsel that you agreed to offend in order to obtain future employment in a warehouse owned by Pham, I do not accept that this is the truth.  It is plain that you offended for the money that was paid to you.

9In such circumstances, your moral culpability for your offending may properly be described as high and your conduct must be denounced by this court.  The sentence must also be calculated to deter others from offending in this manner and the corrections system and the community must be protected from corruption of this nature.

10I now turn to your personal circumstances. 

11You were born in Bathurst, New South Wales, on 20 August 1964 and are now aged 55.  You are married and have no children.  Your family moved to Geelong when you were a child and you completed Year 11 at Bell Park Technical School.  I accept that your childhood was disrupted by the death of your brother in a motor vehicle accident and another brother suffered injuries in that accident.  You also have a sister who is disabled and she now resides in care.

12After leaving school, you joined the Australian Army, rising to the rank of sergeant.  You left the army in 1994 and then worked in warehousing until you joined Corrections Victoria in 2014. 

13You were married in 2001 and I accept that your wife suffers from a range of physical and psychological conditions.  She is apparently a vulnerable person who is dependent upon you.  However, she is also employed as an HR consultant, OHS officer and is a registered BAS agent and so her medical conditions are not such that she is unfit to carry out complex responsibilities.

14Whilst I accept that she is dependent upon you to some degree, I do not accept that she would not be able to carry out her daily life tasks if you were imprisoned.  However, I have taken into account the fact that your imprisonment would be a greater burden upon you by reason of your wife's vulnerability.

15I have also received in evidence a psychological report of Ms Pamela Matthews, setting out your psychological profile and her opinion.  I accept that you are suffering from depression and are currently taking Seroquel for this and I further accept that imprisonment will compound your depression and that you do require ongoing treatment for it. 

16Finally, I accept that by reference to the character evidence before me that you are an otherwise hardworking and honest person and are extremely remorseful for what you have done.  Specific deterrence is not a prominent consideration in your case and your prospects of rehabilitation may properly be described as good.

17In my opinion, the most significant factor in your favour is the fact that you have made a statement to police and have undertaken to give evidence in a prosecution for the offence of bribery against Pham and his two relatives, Loan Vo and Gia Quoc Dinh.  You are entitled to a significant sentencing discount for this and furthermore, if you were imprisoned, you would serve your sentence as a corrupt former prison officer giving evidence in the trial of a prisoner and his relatives.  This would, no doubt, expose you to a very significant risk of personal harm and significantly increase the burden of imprisonment upon you.

18I have also had regard to the decision of the Court of Appeal in Gopinath v The Queen [2019] VSCA 172 and a decision of this court in the DPP v Zammit [2018] VCC 2035, two cases where imprisonment was not imposed on a police officer and on a prison officer for the offence of misconduct in public office.

19Whilst, in my opinion, your offending is very serious and would generally warrant the imposition of a term of imprisonment, I have concluded that in the specific circumstances of your case, the purposes for which this sentence is to be imposed will be met by the imposition of a Community Correction Order, for which you have been assessed as suitable. 

20In the result, the sentence of the court is as follows –

21You are convicted and sentenced to serve a Community Correction Order for a period of two years on the core conditions provided for by the Sentencing Act and on the following special conditions; that for the period of the order you be under the supervision of a corrections officer, that you perform 200 hours of unpaid community work and that you undertake treatment and rehabilitation in relation to mental health. 

22Do you agree to enter in a Community Correction Order on those conditions?

23OFFENDER:  Yes sir.

24HIS HONOUR:  I will make the ancillary orders sought by the prosecution. 

25But for your plea of guilty, I would have imposed six months imprisonment, together with an 18 month Community Correction Order. 

26Are there any further orders required?

27MR TIWANA:  No, Your Honour and I think from the sentencing remarks, it's noted that he's given an undertaking on the court records.

28HIS HONOUR:  Yes.

29HIS HONOUR:  Thank you.  It's clear from the remarks.

30MR TIWANA:  Yes.

31HIS HONOUR:  We'll now adjourn until 11 am, thank you.

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