Director of Public Prosecutions v Raso

[2019] VCC 1519

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02436
  CR-18-02591

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELIO RASO
ANTHONY THOMPSON

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 – 3 April 2019; 26 April 2019; 13 September 2019
DATE OF SENTENCE:	18 September 2019
CASE MAY BE CITED AS:	DPP v Raso & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 1519

REASONS FOR SENTENCE
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Subject:

Catchwords:  Misconduct in public office; Unlawful access of LEAP database by police officer; Information provided to private investigator; Numerous accesses over a seven year period; Moral culpability

Legislation Cited:

Cases Cited:R v Huy Vinh Quach [2010] VSCA 106; Question of Law Reserved (No.2 of 1996) (1996) 88 A Crim R 417

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Saunders	Office of Public Prosecutions
For Accused Raso	Mr J. Gullaci	Tony Hargraves & Partners
For Accused Thompson	Mr D. Dann QC	Galbally & O’Bryan

HIS HONOUR:

1Elio Paul Raso and Anthony Greg Thompson, you have each pleaded guilty to seven charges of misconduct in public office contrary to common law. 
The maximum penalty for that offence is 10 years imprisonment.

2In the case of Raso, you pleaded guilty at committal mention following negotiations to resolve your matter between your legal representatives and the prosecution.  I have taken your early plea of guilty into account in your favour in mitigation of sentence.

3In the case of Thompson, you also pleaded guilty at committal mention following negotiations, and I have also taken your early plea into account in your favour in mitigation of sentence.

4Neither of you have any prior convictions, subsequent convictions,
or outstanding charges.

5The charges that you have each pleaded guilty to are rolled-up charges. 
This procedure, which may only occur with your consent, permits the prosecution to rely on multiple acts that would constitute the offence you have pleaded guilty to in one charge.  In arriving at an appropriate proportionate sentence in each of your cases, I am permitted to take into account the fact that each of the seven charges before me include these multiple acts.

6The prosecution opening was read to the court and tendered in evidence,
and your offending may be summarised as follows –

7Between 1 January 2011 and 31 December 2017, Raso was a Sergeant of Victoria Police and held the position of supervisor at the Moorabbin Crime Services Department.  Thompson had served as a police officer with Victoria Police between 1975 and 1988.  Between 1979 and 1981, he and Raso were stationed together at the Frankston police station, and thereafter, became friends.

8After leaving the police force, Thompson commenced work as a private investigator and started his own business, Quest Investigation Services,
in 1990.  This business continued to operate until 2017.  Between 2001 and 2004, Raso was not a member of Victoria Police and was employed by Thompson as a private investigator.

9On 30 August 2015, Victoria Police received information that Thompson was obtaining confidential police information and data from a serving police officer, and an investigation commenced.  The investigation revealed that Raso unlawfully accessed the Victoria Police LEAP database frequently during the charged period, with the purpose of providing information to Thompson for use in his private investigation business or for other personal purposes.

10It is agreed by the parties for the purposes of this proceeding that this occurred with the following frequency.  In the case of Raso:  In respect of Charge 1, on 17 occasions.  In respect of Charge 2, on 21 occasions.  In respect of Charge 3, on 48 occasions.  In respect of Charge 4, on 47 occasions.  In respect of Charge 5, on 33 occasions.  In respect of Charge 6, on 40 occasions.  And in respect of Charge 7, on 18 occasions.

11And in the case of Thompson, in respect of Charge 1, on 17 occasions. 
In respect of Charge 2, on 21 occasions.  In respect of Charge 3, on 31 occasions.  In respect of Charge 4, on 41 occasions.  In respect of Charge 5, on 30 occasions.  In respect of Charge 6, on 37 occasions.  And in respect of Charge 7, on 16 occasions.

12This makes for a total of 224 occasions that the LEAP database was unlawfully accessed by Raso, and in the case of Thompson, on 193 occasions.  A chart setting out the detail of these unlawful accesses is annexed to the Indictment in this case.

13For the purposes of the proceeding, Victoria Police also provided to the court and the parties on a confidential basis a printout of the LEAP database capability.  It is plain from that document that the database contains an extensive range of information and intelligence concerning individuals and their families, missing persons, criminal offences, firearms, vehicles, properties, and a wide range of other categories.  Much of the information must inevitably be of a personal or private nature.  Other categories relate to criminal intelligence and security more generally.

14The provision of information from this database by a senior serving police officer to a private investigator for commercial or personal purposes is, in my opinion, a serious example of the offence you have each pleaded guilty to.  It is the responsibility of this court to denounce the corrupt nature of this offending, and to protect the community from the misuse of private information collected by the police force for law enforcement purposes.

15The elements of the offence of misconduct in public office were considered by the Victorian Court of Appeal in R v Huy Vinh Quach [2010] VSCA 106.
In its reasons for decision, the court emphasised that a holder of public office occupies a position of trust and confidence reposed in him or her by the public.  The court quoted with approval the statement of Chief Justice Doyle in Question of Law Reserved (No.2 of 1996) (1996) 88 A Crim R 417, where His Honour stated:

'It is clear, I consider, that the generic offence (as I have described it), strikes at the public officer who deliberately acts contrary to the duties of the public office, which is an abuse of the trust placed in the office holder and which, to put it differently, involves an element of corruption.'

16It is plain, by reference to this statement, that the moral culpability of Raso may properly be described as high in circumstances where he unlawfully accessed the LEAP database on 224 occasions over a period of seven years.

17It must also, however, be accepted that Thompson was not a public office holder, and the trust of the public was not reposed in him.  He had pleaded guilty on the basis of being a party to a joint criminal enterprise, and in such circumstances, in my opinion, his moral culpability is not of the same order as that of Raso.  This was, however, a corrupt relationship.

18I do not accept, as was submitted by your counsel, that the seriousness of the offending committed by each of you is to be moderated because Thompson also provided Raso, and in turn, Victoria Police, with other information that may have assisted in the investigation of criminal offences or offenders.  This does not in any way give legitimacy to the relationship that existed between you.

19There is no evidence that Raso profited personally from the offending, but it is clear that it facilitated the business being carried on by Thompson, and the primary motivation for his offending in his case was, in my opinion, profit.

20I now turn to your personal circumstances.

21Elio Raso, you were born in 1955 in Melbourne, and you are now aged 64.  Your parents were Italian migrants coming to Australia following World War II, and it appears that your early childhood was characterised by abuse and instability.

22You were educated to Year 10 level and joined Victoria Police in 1976, gaining the rank of Detective Sergeant.  You resigned in 2001, as I have said, and then rejoined the police force in 2004.  I accept that you have an excellent work history and have served the community well as a police officer.  I further accept that you had to resign from the police force in ignominy by reason of being charged with these offences.

23You have been married since 1974 and have three adult children.  You have a loving and supportive family, and the support of your friends.

24I have received in evidence a psychological report of Mr Patrick Newton setting out your background and current psychological condition.  I accept that you are suffering from anxiety and depression, and these conditions will deteriorate if you are imprisoned - which will, in turn, compound the hardship of imprisonment upon you.  I also accept that as a former police officer, any term of imprisonment will be served by you in protective custody.

25You are also being sentenced for offending the genesis of which occurred over eight years ago, and the legal proceedings themselves have been disrupted through no fault of your own.

26Yours is a complex sentencing exercise, and the appropriate proportionate sentence that I impose must balance the clear gravity of what you did with the factors in mitigation relied upon by your counsel.

27Following submissions on your behalf and on behalf of the prosecution, I had you assessed for suitability for a Community Correction Order, and have received a report that you are suitable for this disposition.

28However, in my opinion, your offending is of such seriousness that the purposes for which this sentence is to be imposed would not be met by me not imposing upon you a term of imprisonment.  This sentence must be calculated to deter other public officers, and in particular, other police officers, from offending in this manner. 

29Whilst I accept that specific deterrence is not a significant sentencing consideration in your case, and your prospects for rehabilitation are good, as
I have said, general deterrence looms large in your case. 

30Anthony Thompson, you were born in Melbourne in 1956 and are now aged 62.  You grew up in Moorabbin and are one of four sons born to your parents.  Your childhood and developmental years were unexceptional, and you completed Year 10 at Hampton High School.  Your counsel described you as coming from 'humble beginnings.'  After leaving school, you were engaged in a series of labouring jobs before joining the police force when you were 18 years old.

31Following an incident at a 21st birthday party, you were charged with crimes of violence and suspended from the police force without pay.  You were subsequently acquitted, following a trial in this court.  During this time, you also suffered a significant injury playing football for Frankston in the VFA. 
These events culminated in you suffering what is described as a 'nervous breakdown' in 1985, at the age of 28.

32I have received in evidence a psychological report of Mr Jeffery Cummins setting out your background and psychological history.  I accept that you have a longstanding history of psychological disturbance and alcohol abuse which you have managed in the context of an extremely busy personal and business life.  You have also suffered from gambling addiction.

33Of more significance for sentencing purposes in your case is a recent report of Dr Justin Lewis, a consulting psychiatrist, setting out your current psychiatric condition.  You now suffer from panic disorder and extreme anxiety, requiring medication and intensive treatment.

34I accept that imprisonment would result in the deterioration of your mental health which would, in all probability, result in your hospitalisation.  I also accept that imprisonment would involve a high degree of hardship for you.

35You also suffer from a brain aneurysm, and whilst the likelihood of this rupturing is small, the chances of that would be increased by the stress of imprisonment upon you.

36I also accept that you have contributed extensively to your community in a range of ways, and an impressive body of character evidence was tendered on your behalf.  This evidence does not, however, significantly mitigate the sentence
I should impose, and it is often the case in the context of white-collar or like crime that persons like you who offend for material and commercial reasons then rely upon evidence of good character.

37As I raised in the course of the proceedings, having regard to the fact that you were not the public officer holding the position of public trust and confidence, and the cogent evidence concerning your current mental health, it is open to me to impose a disparate sentence in your case to the sentence to be imposed on your co-accused.

38I also accept that in your case, specific deterrence is not a significant sentencing consideration, and your prospects for rehabilitation may also be described as good.  You too have been assessed as being suitable for a Community Corrections Order.

39In the result, the sentence of the court is as follows –

40Elio Raso, in relation to the seven charges before the court, you are convicted and sentenced to an aggregate sentence of six months' imprisonment and a Community Correction Order for 18 months, on the core conditions provided for in the Sentencing Act.

41I further order that during the period of the Community Correction Order,
you perform 100 hours unpaid community work.

42But for your plea of guilty, I would have imposed a total effective term of imprisonment upon you of 12 months, together with the Community Correction Order.

43Anthony Thompson, on the seven charges before the court, you are convicted and sentenced to a Community Correction Order for a period of two years, on the core conditions provided for in the Sentencing Act.

44I further order that you perform 200 hours unpaid community work during the period of the order.

45But for your plea of guilty, I would have imposed a Community Correction Order of three years.

46HIS HONOUR:  All right, thank you.

47MR BROWN:  Thank you, Your Honour. 

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