Director of Public Prosecutions v Nolan
[2016] VCC 1980
•16 December 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01579
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
BRENDAN KANE NOLAN Defendant
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JUDGE: His Honour Judge Murphy
WHERE HELD: Melbourne
DATE OF HEARING: 17-21, 25-28, 31 October 2016, 2-4, 7-8 November 2016, 5 December 2016
DATE OF SENTENCE: 16 December 2016
CASE MAY BE CITED AS: DPP v Nolan
MEDIUM NEUTRAL CITATION: [2016] VCC 1980
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – misconduct in public office – offences committed whilst a sworn police officer – offences committed with co-offender – co-offender pleaded guilty to similar charges – co-offender gave evidence against present offender – parity – theft of money in lieu of failing to perform proper duties – theft of casino chips during execution of search warrant – substitution of drugs out of police tamper-proof evidence audit bag – modest personal gain – no prior convictions – very good prospects of rehabilitation – immediate imprisonment sentence required
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Director of Public Prosecutions v Branov (unreported, County Court of Victoria, Judge Meredith, 18 December 2014), Director of Public Prosecutions v Brown [2014] VCC 2315, Director of Public Prosecutions v Soylemez (unreported, County Court of Victoria, Judge Stuart, 30 August 2013, Soylemez v The Queen [2014] VSCA 23, The Queen v Bunning [2007] VSCA 205, Director of Public Prosecutions v Armstrong [2007] VSCA 34, R v Wright (No 2) [1968] VR 174, The Queen v Vincent [2009] VSCA 87.
.Sentence:3 years’ imprisonment with a 1 year and 9 month non-parole period
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APPEARANCES: Counsel Solicitors
For the Crown Mr N Papas QC Office of Public Prosecutions
For the Defendant Mr G Steward Galbally Rolfe
HIS HONOUR:
Brendan Kane Nolan, you have been found guilty, after a 15-day trial and four and a half days of jury deliberation, by majority verdict, of three counts of misconduct in public office. The maximum penalty is ten years' imprisonment. You were put up on trial jointly with Nicholas Powell. The jury acquitted him of all the charges.
I am required to sentence you in accordance with the jury verdict.
The gist of the offences of which you were found guilty was that the Crown by proving the relevant conduct alleged against you, you had misconducted yourself. It was not in contest at the trial that the alleged conduct met the requirements of the offence that the relevant misconduct be serious and merited criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public office which they serve and the nature and extent of the departure from those objects.
Circumstances of the Offending
The prosecution mounted a comprehensive case against you. It relied on direct evidence, circumstantial evidence, admissions said to be made by you to your housemate, and former police officer, a Mr Moore, and intercepted material obtained after the period of the relevant offending.
The prosecution case, however, relied centrally on the evidence of Branov, a disgraced former officer now serving a sentence after he had pleaded guilty to a number of charges, three of which related to the same conduct that was the basis of the three charges against you and your co-offender, Mr Powell.
In addition to the direct evidence of Branov, the prosecution relied on intercepted calls and messages between the three of you after the period of the relevant charges. The prosecution also relied on call charge records to give the location of mobile phones used by the three of you to provide support for the direct evidence of Branov.
At all material times, you were a sworn officer of the Victoria police force. Your early period in the force was at Northcote but sometime in 2008, you commenced general uniform duties at the Fitzroy police station.
That station was a training station and junior officers were assigned there in order to be mentored by more senior officers.
One of those officers was one Branov. He was 13 years older than you and before joining the Police Force had worked as a systems analyst and in other positions. He had previously been addicted to illegal drugs. He was three months senior to you in the force. Given the age difference between you, he was also more mature.
10.While he was stationed at Fitzroy, he fell back into drug addiction. He was involved with a significant drug dealer and became involved in theft of drugs for his own use and for sale and other actions involving perverting the course of justice and misconduct for his own benefit and for the benefit of a drug dealer and others.
11.You and Branov formed a friendship as you worked together on uniform duties. Branov gave evidence that at one stage he discussed with you your attitude to officers who engaged in criminal activity in the course of their duties. He sounded you out. After you responded positively the two of you agreed that in the right circumstances and if the opportunity arose, you would engage in stealing drugs or cash from criminals in the area. You referred to the proceeds from that as part of a “punters club” and gave the engaging in criminality a codename – "code 13". Branov gave evidence that some of the proceeds were kept in an envelope in an office at the station. It was referred to as the “Sha Tin papers”, named after a well-known race track in Hong Kong.
12.In around 2011 or 2012, Powell was also brought into the arrangement. It was agreed that either the three of you or two of you would engage in the activity such that if there was a drug dealer who had cash on him and one or both of you were there, you would do what you could to take any money available. Branov referred in colourful language to the three of you “taxing drug dealers”.
Charge 1
13.The circumstances were that in April or May 2012, there was a particular elderly Asian drug dealer operating at the Brunswick Street housing commission flats. Branov was aware of his activities and also aware that he was on bail for offending and would ride his bike to deals carrying heroin in foils. He had been given a nickname.
14.On 15 May 2012, information was obtained from the sergeant that he was operating on a particular morning. Branov then suggested to the section sergeant that he and you and Powell should attempt to intercept Mr Vo. The three of you changed into civilian clothing and proceeded to go to the Atherton Gardens near the flats. There, Mr Vo was intercepted and found to be carrying two foils that Branov concluded contained heroin. According to Branov because Vo was on bail, than if he had been arrested he would have to be remanded.
15.At that point Branov told Vo in broken English of the consequences of his apprehension and then said to him “This is going to cost you. This one is going to cost you money.” He then used a symbol for money. In response, Vo offered to prostitute his wife or daughter. This was rejected by Branov and the demand for money was reiterated including by you. The three of you then accompanied Vo up the back stairs to his tenth floor unit where he gave Branov an amount of approximately $3000. Branov then gave him back his foils. That was the end of the transaction.
16.You all returned to the station and on the way discussed ascertaining whether or not there were surveillance cameras that had been operating within the units that may have observed your activities. You advised Branov as to who to contact to ascertain whether your activities had been the subject of any surveillance.
17.Branov kept the money until later that day when the three of you went to the casino in your vehicle and divided up the money, with you each receiving between $800 and $1000. You proceeded to engage in some gambling at the casino and then left.
18.Vo did not give evidence. The jury must be taken to have accepted the account by Branov, supported by some admissions made by you to Mr Moore.
Charge 2
19.The second count involved an arrest by you and Powell of a drug dealer named Booth and his driver at the Albion Charles Hotel in Northcote in the early hours of the morning of 22 June 2012. Branov was not on duty at that time but you contacted him either by way of a text message or a phone message, advising him of the biggest "code 13" you were going to see - namely, the seizure of around 100 g of methylamphetamine or “ice” - and recommended to him that he immediately come to the station. Branov gave evidence that he did so although he diverted past the hotel to see whether any of the drugs were still on the ground as a result of a scuffle.
20.After the arrest you had returned with the two suspects to the Fitzroy station and the drugs were placed in the overnight property locker. When Branov arrived at the station, he queried with you how the three of you were going to be able to steal the drugs. You advised him that you were then preparing to execute a search warrant on the suspect's premises in Preston. The search warrant was executed with you, Powell and Branov participating but nothing of significance was found. Branov raised with you that there was now a problem getting access to the drugs and you then told him that you would get the drugs out of the long-term storage area in order to weigh and photograph them at a later time. Branov said he would then be in a position to steal some of the drugs and proceed to sell them with the proceeds to be shared among the three of you.
21.It was agreed that 10g of the 70g of drugs would be removed and replaced with a cutting agent known as fine cotton. Branov gave evidence that the amount of drugs at that point to be removed would be worth about $5000.
22.On 26 June, you, Branov and Powell were on duty. You then arranged for the removal of the drugs that had been seized from Booth to be removed from the property locker. You took them to the files office where the tamper-proof bags was opened. There was one bag containing 70g of methylamphetamine and a another smaller bag containing about 7g of cocaine.
23.Powell accompanied Branov to the toilets where he had weighed out 70g of a substitute for the ice, and glucotin to replace the cocaine. Although the arrangement was for him only to remove 10g of ice, in fact he removed all the ice without your knowledge. The substituted drugs were then placed back in the property locker through the property clerk in a new tamper-proof bag. Branov gave evidence that he took the earlier tamper-proof bag away and a tamper-proof bag was found at his home when it was subsequently raided.
24.There was a deal of cross-examination as to the various entries in the property register and as to the relevant signatures and the numbers on the tamper-proof bags. The jury must be taken to have ultimately accepted the evidence of Branov as to the circumstances of the theft of the drugs that had been seized from the suspect, Booth. He was ultimately dealt with by a magistrate for trafficking methylamphetamine. The relevant evidence consisting of the substituted material was ultimately sent to the forensic science laboratory to be destroyed.
25.After Branov was arrested, you went to the relevant sergeant to ascertain whether that had in fact occurred and your demeanour during the interaction was placed before the jury as a circumstantial matter linking your involvement to the theft of the drugs.
26.Branov pleaded guilty to theft of the drugs that had been seized. Branov gave evidence that a couple of weeks after the substitution he had given you an envelope containing $2000 to be shared with Powell, as your share of the drugs that he told you he had sold but that he had in fact consumed himself.
Charge 3
27.
On 20 July 2012, you, Branov and Powell executed a search warrant in a housing commission unit at 510 Lygon Street, Carlton. In the course of that search, you stole an amount of casino chips from one of the occupants,
Ms Jenny Huang.
28.The circumstances of this offence commenced a couple of days earlier when you discussed with Branov an Asian male that you believed had been dealing drugs from those premises. The discussion was about attending at his flat and hopefully obtaining a "code 13". It was agreed that he might be a good target. An affidavit was prepared to be put before a sergeant. It was sworn by a sergeant and a search warrant was obtained from a magistrate.
29.The search warrant was executed on 20 July. You, Branov and Powell were involved and the search was supervised by a Sergeant Symes.
30.When you entered the premises, each of you checked one of the bedrooms while Sergeant Symes supervised the occupants in the lounge room. The target of the search warrant was not present but his mother Ms Huang was.
31.In the course of searching her bedroom, you located a handbag containing a large quantity of casino chips. You called out to Branov and he came to the room. You showed him the chips in the presence of Ms Huang. There was non-verbal communication between you including an “OK” sign. Branov resumed his search and later you all told the sergeant that nothing had been found in the search. The three of you left the premises and when you were in the car together returning to the station, Branov noted that you had a stack of casino chips in your pocket.
32.The casino chips were not put through the property book. That evening after you and Powell had completed your shift, the two of you went to the casino. Around 10 o’clock that evening, you met with Branov back in Fitzroy. And at that point you handed him an envelope containing an amount of cash which he variously said was between $300 and $800.
33.The occupant of the flat, Ms Huang, gave evidence that indeed she did have casino chips in her bag. She stated that after the police had left, there was an amount of $2300 worth of chips missing. The denominations of the chips she said were missing were higher than those that Branov said you had stolen. The witness also said that as the police left the unit, one of them smiled at her and made eye contact. She said he winked to her. She described him as Caucasian.
34.Although aspects of her evidence were unsatisfactory, I am satisfied the jury accepted that indeed casino chips had been stolen from her in the course of that search and that was consistent with the evidence of Branov. And on that basis, you were convicted of that charge.
35.There was disputed evidence as to whether for the purpose of the affidavit in support of the warrant for the Lygon Street warrant Branov had made up information to be included in the draft affidavit that was ultimately sworn by the senior officer in support of the warrant. In his evidence-in-chief, Branov explained how he had made up the contents of the affidavit and in particular referred to an unnamed source.
36.Evidence subsequently emerged that was capable of showing that the information in support of the affidavit may have come from an individual intercepted by police around the time the warrant was being prepared.
37.For present purposes it is unnecessary to reach a conclusion as to whether or not you were involved in putting together false statements with Branov in the affidavit in support of the raid to be undertaken. It was open to the jury to convict you on the basis that during the raid when you found the casino chips, you, with the connivance of Branov proceeded to steal them and subsequently divide up the proceeds.
38.Your culpability for your conduct remains serious because as Branov indicated in his evidence there was a meeting to discuss or plan a matter and he then participated in the execution of the warrant even though at the time he was working on the files. He described the exercise as a “hunting expedition”. He further indicated that proper practice required that when that quantity of casino chips had been found it should have been raised with the supervising sergeant given the financial circumstances of the occupants of the unit.
Overall Seriousness of the Offending
39.There are many statements as to the seriousness of the offence of misconduct in public office. For a sworn police officer to - using a colloquial expression - “shakedown” the suspects in relation to Counts 1 and 3 was absolutely outrageous. You exploited the fact that neither of them were in a position to complain about your conduct. In relation to Count 3, you and Branov brazenly committed the theft of casino chips with a superior officer supervising the warrant in the next room.
40.I accept that the financial gains in relation to both Counts 1 and 3 were relatively modest but that provides no excuse whatsoever for your conduct.
41.In relation to your conduct giving rise to Count 2, this was also a serious breach of your duties. Your conduct breached the internal protocols of the Force and provided a risk that the offender may not have been successfully prosecuted.
42.It is little wonder that when the criminal proceeding had been wrapped up and Branov subsequently arrested that you checked with the property record keeper at the station and appeared relieved.
The Evidence of Branov
43.I cannot leave the account of the trial without making reference to the evidence of Branov. He is an intelligent man whose life has been blighted by drug addiction. This led to his own offending and to the subsequent offending in company with you. Unlike you, however, he has seen the error of his ways and pleaded guilty and is now serving a sentence. Further he was prepared to give the critical evidence against you. It is notorious within the criminal justice system that those who give evidence against other offenders place themselves at risk of harm. Such a risk is all the greater in the case of a police officer who is then required to undergo a sentence.
44.Branov acknowledged that he received a discount on his sentence for giving evidence against you. He was the subject of days of bruising cross-examination by your counsel and counsel for Powell. Notwithstanding his own admitted extensive criminality the jury must have accepted him in the case against you as a witness of truth.
45.I commend him for his preparedness to acknowledge the error of his ways and to seek redemption. I am satisfied that he fully delivered on the undertaking he gave to the sentencing judge.
46.His role in convicting you serves to remind the community that those who are prepared to admit their guilt and to assist in bringing others to justice are entitled to be treated favourably in the criminal justice system for facilitating the course of justice.
47.Whilst referring to Branov, I should note that you pleaded not guilty to these three charges as you are entitled to, and you are not to be punished for that and will not be punished for pleading not guilty.
Matters in Mitigation
48.In a comprehensive plea, your counsel put a number of matters in mitigation which I take into account and now refer to.
49.First, good character. On the plea, your counsel submitted 39 character testimonials. Also your partner, Ms Read, who is a serving police officer, and your father, a retired public servant, gave evidence in support of you. You have strong support from your partner and of course, your father speaks well of you.
50.The sheer volume of the written testimonials makes it difficult to do justice to their contents in support of you. The character evidence indicates that you come from solid country stock. You have strong family values and you and your family have been involved in the local community where you have been living.
51.You are known to have strong support of your close family members and you have supported them through their various troubles in life. You have been actively involved in your local community, with your neighbours, and in sporting associations. You have been involved in the Army reserve and in the CFA. You have a wide range of friends who also speak very highly of you and your support for them.
52.You have a strong work ethic commencing from your school days and the references include a number of references from people with whom you worked both before joining the Police Force and whilst in the Police Force, and since you were suspended. You had a promising career before you in the Police Force, yet as a result of your own conduct that has been lost.
53.In recent times you have strongly impressed your new employers as you moved to obtain your plumbing qualification and you have passed the relevant exams.
54.I give you credit for your prior good character. This indicates that you have strong prospects of rehabilitation. You are on the way to rehabilitation.
55.In the case of misconduct in public office, however, where the need for general deterrence is especially strong, prior good character is to be afforded less weight than it otherwise would be.
56.The testimonials also support that the delay in the criminal justice system has impacted on you, and you are entitled to have that taken into account.
57.Your personal circumstances are that you are now nearly 31. You were born in country Victoria and obtained your VCE at Bendigo Secondary College. You graduated from the police Academy in 2006. You had been in a long-term relationship with another police officer, Ms Read, who gave evidence on the plea. The two of you have purchased and renovated a house together since you were suspended from the Force. She has provided strong support for you and imprisonment will impact on you due to your separation from her.
58.The learned Crown prosecutor accepted that you are entitled to have delay taken into account in your favour. It is now over four years since the offending and over three years and half years since you were suspended from the Force, although the charges were only laid in early 2015.
59.Part of the delay in bringing the matter to trial is related to the complexity of the case and the general working of the criminal justice system. You are not to be blamed for any of the delay. However, corruption cases are complex and difficult to detect and prosecute. It was only when Branov effectively confessed and agreed to cooperate with the authorities that the case against you could get off the ground.
60.The delay is relevant to the assessment of your prospects of rehabilitation. You have moved on with your life and sought to retrain in a different occupation and are well on the way to obtaining a trade qualification.
61.You have also had strain of the being charged and the trial itself hanging over your head for all this time. As set out in the report of Mr Patrick Newton, psychologist, this has caused anxiety and depression. There was little reference to the report of Mr Newton on the plea. This was because he found that you are essentially a normal person experiencing understandable distress in response to the predicament you are in. You do not have any diagnosable condition and there are no psychological factors that would hinder your progress towards rehabilitation to a productive life in the community. His opinion was that you have a very good long-term prognosis.
62.As I have indicated in matters in mitigation. I take into account that a sentence of imprisonment will impact on you due to your separation from your partner and family.
Parity
63.In sentencing you an important consideration is the principal of parity. This applies given that it was the prosecution case that you and Branov were jointly involved in the activities involved in the three counts that you have been convicted of. Branov pleaded guilty to a count of misconduct in public office corresponding to Count 1. He pleaded guilty to two counts of theft corresponding to the theft of the methylamphetamine that was seized from Booth and subsequently removed by him with your assistance. He also pleaded guilty to theft of the casino chips during the search warrant corresponding to Count 3 of which you were convicted.
64.The prosecution accepted that the underlying criminality for which he pleaded guilty to was the same as that for which you have been found guilty.
65.
Another judge of this court on the relevant counts sentenced Branov to
12 months' imprisonment for counts equivalent to the ones that you have been found guilty of. The overall sentence on Branov was discounted on the basis that he had agreed to give evidence against you and others, and that he had pleaded guilty and evidenced remorse. The sentence also takes into account was the fact that Branov, as an informer, would find imprisonment more burdensome than other prisoners. According to the s.6AAA declaration of His Honour, he received a substantial discount for those reasons. I have considered the sentencing remarks in relation to Branov.
66.Subject to subjective matters, principles of equal justice calls for a sentence that does not give rise to complaints of disparity in relation to his sentence.
67.In a somewhat artificial exercise I am required to consider, for the purposes of parity, what sentence would have been imposed by the sentencing judge had Branov taken those matters to trial. The learned Crown prosecutor, without putting any sentencing range to the Court, submitted that this may have been a sentence in the range of 18 months to two years on each count, on a plea of not guilty.
68.I am required to have regard to the sentence imposed on Branov even though he was sentenced for different offences and ultimately his criminality was deeper and wider than yours. I must also have regard to current sentencing practice as evidenced by the cases referred to by the learned prosecutor.
69.The learned Crown prosecutor referred me to a number of cases dealing with the offence of misconduct in public office including Bunning,[1] Armstrong,[2] Soylemez[3] and Brown.[4]
[1] The Queen v Bunning [2007] VSCA 205.
[2] Director of Public Prosecutions v Armstrong [2007] VSCA 34.
[3] Soylemez v The Queen [2014] VSCA 23.
[4] Director of Public Prosecutions v Brown [2014] VCC 2315.
70.Some of the sentences for the individual counts in those cases are significantly higher than those imposed on Branov.
71.
In Soylemez,[5] on a plea of guilty a prison officer was sentenced to a term of two years' and three months' imprisonment with a non-parole period of 15 months. In Brown,[6] a prison officer on a plea of guilty was sentenced to a term of
[5] Soylemez v The Queen [2014] VSCA 23.
[6] Director of Public Prosecutions v Brown [2014] VCC 2315.
15 months' imprisonment with a non-parole period of nine months. In Vincent,[7] a not guilty plea of theft by a police officer in the course of his duty, the Director failed to demonstrate that the sentence of 12 months' imprisonment, with eight months suspended, was manifestly inadequate. In Bunning,[8] sentences of up to three and a half years' imprisonment on pleas of guilty were imposed by the Court of Appeal.
[7] The Queen v Vincent [2009] VSCA 87.
[8] The Queen v Bunning [2007] VSCA 205.
72.In Armstrong,[9] on a plea of guilty on a Director's appeal where the offending police officer had extorted the sum of $8000 from a suspect, on appeal, the Court had imposed a sentence of two years' imprisonment, along with a number of other shorter sentences for other offending.
[9] Director of Public Prosecutions v Armstrong [2007] VSCA 34.
73.In sentencing you I have had regard to those sentences as evidence of current sentencing practices. I have also had regard to the “yardstick” of the ten-year maximum penalty for this offence. Your counsel did not dispute that your conduct called for a sentence of imprisonment.
Sentencing Principles
74.I was referred to a number of cases that set out the principles for sentencing in cases involving misconduct in public office and in particular misconduct by police officers and those in a similar position. Those cases include Brown,[10] Bunning,[11] Armstrong,[12] Soylemez[13] and Wright.[14]
[10] Director of Public Prosecutions v Brown [2014] VCC 2315.
[11] The Queen v Bunning [2007] VSCA 205.
[12] Director of Public Prosecutions v Armstrong [2007] VSCA 34.
[13] Soylemez v The Queen [2014] VSCA 23.
[14] R v Wright (No 2) [1968] VR 174.
75.General deterrence must play a prominent part. The confidence of members of the community in the Police Force is corroded by corruption of police officers.
76.Corruption erodes the morale of honest police officers and encourages others to turn a blind eye to similar behaviour. The temptations to officers to engage in corrupt conduct are available on a daily basis due to the pervasive criminality associated with illegal drugs and gambling. This applies particularly where the offenders with whom police officers are dealing are reluctant to complain about corruption because this will reveal that they themselves have committed offences. Corrupt practices are more insidious than corruption that might affect honest members of the community who are able to report matters to police when power is abused.
77.There is also only so much Force command can do by way of management structures and internal controls designed to minimise corruption by individual officers. Ultimately, to a large extent, individual officers must not fall to temptation. It is for that reason that they are accorded the status of their office, and good pay and terms and conditions.
78.The sentence of the Court must be such as to reinforce the moral indignation arising out of your conduct in those who do abide by their oath of office. Your conduct damages the confidence of the whole community in those holding public office and in particular those in the Police Force.
79.The sentence must seek to vindicate the community values and expectations. It must also send a signal to all those tempted to cross the line that this will be met by heavy punishment. This applies notwithstanding that you have lost your career in the Force.
80.It follows that considerations of general deterrence and denunciation must be very significant.
81.I acknowledge your loss of career, the delay that has occurred, the mitigating matters that were put to me by your counsel including the hardship that a sentence of imprisonment will impose on you and your good prospects of rehabilitation.
82.Ultimately, the sentence of the court must vindicate the values of the community which is that those holding public office must not abuse the trust.
Sentence
83.On Charge 1, you are sentenced to 20 months' imprisonment.
84.On Charge 2, you are sentenced to 20 months' imprisonment.
85.On Charge 3, you are sentenced to 20 months' imprisonment.
86.I direct that eight months of the sentence on Charge 2 and eight months of the sentence on Charge 3 be served cumulatively on each other and on the sentence on Charge 1.
87.The total effective sentence is, therefore, three years’ imprisonment.
88.I direct that you serve one year and nine months' imprisonment before being eligible for parole.
89.I declare 11 days pre-sentence detention, excluding today.
90.I revoke the suppression Order made on 19 October 2016, but note that the suppression Order made by his Honour Judge Meredith continues to operate.
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