Director of Public Prosecutions v Symes

[2024] VCC 1836

z

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-01028

DIRECTOR OF PUBLIC PROSECUTIONS

v

JYE SYMES

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2024
DATE OF SENTENCE:	19 November 2024
CASE MAY BE CITED AS:			DPP v Symes
MEDIUM NEUTRAL CITATION:			[2024] VCC 1836

SENTENCE

Subject:Misconduct in public office

Catchwords:              Guilty Plea – serving police officer fabricated statements for hand up brief

Legislation Cited: Sentencing Act 1991 (Vic), section 5(3).

Cases Cited:DPP v Armstrong [2007] VSCA 34; DPP v Mathew James Bunning [2007] VSCA 34; R v Christopher Sean Vincent [2009] VSCA 87; R v Huy Vinh Quach [2010] VSCA 106; Sara Borg v the Queen [2020] VSCA 191; Veen v the Queen (No 2) (1988) 164 CLR 465; R v Piacentino (2007) 15 VR 501; Power v R (1974) 131 CLR 623 ;R v VZ [1998] 7 VR 692.

Sentence:Three years imprisonment with a minimum non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr C Brydon	Office of Public Prosecutions
For the Accused	Mr T Kassimatis KC with Mr C Wareham	Tony Hargreaves & Partners

HIS HONOUR:

1Jye Courtney Symes you have pleaded guilty to one charge of misconduct in public office contrary to common law.

2The maximum penalty is 10 years imprisonment.

Alleged circumstances of offending [1]

[1] The circumstances of your offending are set out only summary of prosecution opening for plea (exhibit A). It contains agreed facts

3You were a serving police officer.

4In July 2021, you moved into the Victoria Police major drug squad as a Detective Senior Constable.

5In December 2019, the Drug Squad identified a Cairnlea property as a safe house where drugs of dependence were prepared for sale.

6When police searched the property, among other things, they found a pair of gloves in a drug preparation area and several “addressed” express post envelopes which they suspected were for use in connection with drug trafficking.

7They arrested a man I will refer to as ME. He was charged with drug offences. You were the informant.

8A woman I will refer to as LT was registered as a tenant of the property.

9She was not at the house when police searched it.

10As part of the investigation, you submitted a sample of ME’s DNA to the Victoria Police Forensic Services Centre (VPFSC) for analysis.

11On 23 March 2020, a forensic biologist, Rachel Feilso, emailed you, a DNA case results summary which indicated a match of ME’s DNA to a DNA sample from a glove. The finding implicated him in drug trafficking at the property.

12In April 2020, ME agreed to plead guilty to charges arising from his arrest.

13On 24 June 2020 police arrested LT and interviewed her. After the interview she voluntarily gave a DNA sample. She was released without charge. You were not involved at that stage.

14At some time, you were tasked to be the informant in the investigation against her. In the months following her interview, you were directed to submit her DNA for biological comparison, and to submit the “addressed” envelopes for a handwriting comparison.

15You told your sergeant the analysis was in progress. However, you had never submitted the gloves or envelopes for scientific examination.

16On 5 July 2021, the DNA sample, which LT had given 12 months earlier, was destroyed.

17Between December 2021 and July 2022:

(a)   you “doctored” an electronic copy of Feilso’s Case Results Summary, which had matched ME’s DNA to DNA on a glove, to state LT’s DNA matched the glove DNA; and

(b)   you “doctored” an electronic copy of a forensic handwriting analysis statement which an expert, James Brandi, had provided you in a different investigation, to state LT’s handwriting matched the handwriting on the envelopes.

18On 10 June 2022 you rearrested LT. When you questioned her, you falsely put to her, DNA and handwriting analysis had implicated her in drug trafficking. She exercised a right not to answer your questions.

19At the end of the interview, you asked her for a DNA sample. She gave it voluntarily, again. You charged her with trafficking a commercial quantity of a drug of dependence. Because of the seriousness of the charge, she was remanded in custody.

20She was brought before the Magistrates’ Court the same day.

21You prepared a remand application for a Magistrate’s consideration. In it, you falsely referred to DNA and handwriting statements as evidence which implicated LT in drug trafficking.

22The Magistrate released her on bail. You had not opposed the application.

23You prepared a brief of evidence, which included the doctored DNA and handwriting statements, and, to comply with the criminal procedure rules, on 25 July 2022, you served an electronic copy on the Office of Public prosecutions and LT.

24In your covering email to the OPP, you wrote Brandi had examined 10 envelopes for handwriting comparison. That was untrue. You also stated a risk the glove had been contaminated during the investigation could undermine the reliability of the biologist’s opinion. The biologist had not analysed LT’s DNA.

25Subsequently, LT’s legal representative obtained leave to cross-examine Brandi and Feilso at a committal hearing.

26In response, the OPP solicitor asked you to make arrangements for Brandi’s attendance for a committal hearing which was listed on 29 March 2023.

27On 18 November 2022, by email, you falsely informed the solicitor concerned you could not locate Brandi.

28In the same email, you raised concerns about the reliability of the DNA and handwriting evidence and proposed a plea to lesser charges to resolve the proceedings.

29Before the committal hearing, on 24 March 2023, the OPP solicitor sent Feilso an electronic copy of the DNA case results summary which you had included in the brief of evidence. She identified it as a forgery.

30When the OPP discovered your deception, it withdrew the charges against LT.

31On the same day, 29 March 2023, Police Professional Standards investigators arrested you at your home.

32They seized your Victoria Police work laptop computer which contained the meta data of the two statements you had fabricated.

33Brandi subsequently also identified the handwriting statement, which you had fabricated, as a fake.

34While he had left Victoria Police in December 2020, his contact details were known to VPFSC. In November 2022, he was contactable through Victoria Police channels.

35By your guilty plea you admit, by

(a)   fabricating the two expert witness statements;

(b)   including references to them in a remand summary;

(c)   including the statements in a brief of evidence; and

(d)   making false representations to the solicitor from the Office of Public Prosecutions,

you breached your duty, as a police officer, in a manner which is serious and meriting criminal punishment.

Objective seriousness of your offending

36There was a degree of sophistication and complexity to your offending. You manipulated electronic text and signature blocks to fabricate false documents.

37The consequences of your offending were very serious. They impacted the administration of criminal justice, generally, and LT, in particular.

38You charged LT with a drug offence which exposed her to a maximum penalty of 25 years imprisonment. You fabricated evidence to support her conviction. Had she been wrongfully convicted, she was at risk of at least several years imprisonment.

39In June 2022, she had voluntarily travelled from Adelaide, where she lived, to Melbourne where she was arrested, questioned, charged and remanded in custody, albeit for a brief period, by you. [2]

[2] I was told she was released from custody on the same day you question and charged her.

40She had to endure the considerable anxiety of the criminal prosecution of a serious drug offence from arrest, charge and remand to contested committal hearing. [3]

[3] I was told LT declined to make a victim impact statement. I was also told she has brought civil proceedings against Victoria police claiming damages for her wrongful prosecution.

41Only through the actions of her legal representative, and an OPP solicitor, was your misconduct uncovered. Its exposure led to the inevitable discontinuation of a plainly wrongful prosecution.

42You maintained the deception for many months.

43On 10 June 2022, when you interviewed LT, you deceived her and, when she was brought before a court, you deceived a Magistrate to believe the charges were supported by incriminating scientific opinions. Beforehand, you had deceived your sergeant to believe you had submitted LT’s DNA and handwriting to obtain those opinions.

44On 25 July 2022, when you served the brief of evidence, you deceived LT, her legal representatives, and the Office of Public Prosecutions to believe the two statements of expert opinion, which you included in the brief, were genuine.

45On 18 November 2022, you maintained the deception in your correspondence with an OPP solicitor.

46By your misconduct, you intended LT would be wrongfully prosecuted. You made some small attempt to mitigate the damage of the consequences by suggesting the OPP accept a guilty plea from her to lesser charges which would have been unlikely to see her imprisoned.

47Your motive is unclear. There was no discernible personal gain for you.

48Nevertheless, considering the serious consequences of your misconduct and your persistence with your deception, until it was discovered, your offending is a serious example of the crime of the type.

49Police officers exercise considerable power over members of the public.

50By acting contrary to your sworn duty to uphold the law you seriously abused that power.

51While it is clear, by fabricating the false statements and using them, your intended to attempt to pervert course of justice, I am mindful you are to be sentenced, not for that offence, but for the misconduct offence, which carries a considerably lower maximum penalty.

Chronology of proceedings

52You were charged on 11 December 2023.

53At committal mention stage, you entered your guilty plea.

Criminal record

54You have no criminal record.

Personal Circumstances [4]

[4] Your personal circumstances are set out in the psychological report of Rebecca Fakhri who assessed you on 6 June 2024 (Exhibit 2).

55You were born on 6 May 1987. You were 34 and 35 years old when you offended. You are now 37 years old.

56You have one younger sister. You grew up on the south-west coast of Victoria.

57Your parents separated when you were five years old. You lived with your mother until you were 16. Then, you went to live with your father. It didn’t work out. When you were 18, after continual arguments with your father, you left home. Once you were gone, he locked you out. You slept in your car for eight months. You got some retail work with for a time.

58When you were 21, you moved to Melbourne to join Victoria Police. You graduated from the Academy in January 2009.

59You worked on the front line for the first five years. In 2014, you were promoted to investigative positions.

60Policing is a high stress job. Police officers are regularly exposed to danger and trauma.

61As a front-line police officer, you were confronted with distressing deaths, including suicides, bushfire victims and SIDS infants. You told a psychologist, who assessed you in June 2024, from an early time in your career, you suffered low moods, hypervigilance and nightmares. [5] You had not sought help for these problems while you were a police member.

[5] Report of Rebecca Fakhri dated 14 June 2024, [36] – [41].

62In early 2024, you did consult your family doctor for advice. She prescribed you antianxiety and sleep medication and referred you to a counsellor who has helped you reduce your stress levels. [6]

[6]  See Letter of Dr Karina Aprico dated 16 July 2024 and enclosed Mental Health Care Plan (Exhibit 4).

63When the psychologist assessed you, your psychometric scores indicated severe symptoms of generalised anxiety disorder and severe depressive symptoms. [7]You also qualified for a provisional diagnosis of PTSD.

[7] Report of Rebecca Fakhri dated 14 June 2024,[64] – [79].

64The psychologist believes you need continuing mental health treatment to improve your coping strategies and lower the risk of reoffending. [8]

[8] ibid, [99].

65In her opinion, because of your anxiety and depression:

(a)   when you offended, your decision-making was compromised; [9]

(b)   imprisonment would likely weigh more heavily on you than a person with your mental health problems; [10] and

(c)   prison could exacerbate your depression and PTSD. [11]

[9] ibid, [93].

[10] ibid, [95].

[11] ibid, [95].

66You married in 2014. You have two children, aged six and two. Your wife has a 10-year-old child from a prior relationship.

67You have not worked since your arrest in March 2023. Your wife has returned to work to financially support the family. You have been the full-time carer for your children.

68Most of your friends were other police. You are now isolated from them.

69Your wife, her sister and brother-in-law, have been your main social network. [12] They, with several others, who also know you well,[13] provided impressive references. They demonstrate you are a good family person. And you were a dedicated police officer.

[12] Letter of Daniela Mattielli (Exhibit 9), letter of Sarah Bombonel (Exhibit 5) and letter of Vincent Bombonel (Exhibit 6).

[13] Letter of Penny Coillet (Exhibit 7), letter of Sarsha Francis (Exhibit 8) letter of Grace Mattielli (Exhibit 10) and letter of Serena Wilson (Exhibit 11).

70Your wife also has a history of anxiety and stress. She has been seeing a psychologist for therapy since 2020. [14]

[14] Psychological report of Bilyana Celeska, [34] (Exhibit 3)

71Your wife’s anxiety and stress increased since your arrest.

72Nevertheless, according to her psychologist, she is resilient . She continues to stand by you.

Defence submissions[15]

[15] Defence submissions (Exhibit 1), Prosecution submissions (exhibit B and C).

73Defence and prosecution made comprehensive written and oral submissions. While I have considered them carefully, I will refer to them only briefly.

74Mr Kassimatis KC, who, with Mr Wareham, appeared for you, acknowledged your offending involved a serious breach of the public’s trust in the police force.

75He submitted its gravity must not swamp other relevant factors including:

(a)   your prior good character;

(b)   your early guilty plea and remorse;

(c)   your poor mental health;

(d)   the additional burden of imprisonment on you; and

(e)   the loss of your job and career.

76I accept they are all  mitigating factors in your favour. I take them into account to moderate the sentence I will impose.

77He referred me to a number of sentences of this court, concerning police who had engaged in misconduct in public office, which ranged from a CCO to a composite sentence to the fixing of the head sentence with a non-parole period.[16]

[16] A term of imprisonment and CCO.

78They illustrate the wide scope of police corruption behaviours.

79Making adjustments for the differences in offending and personal circumstances, and taking into account the limitations of comparing cases, which are all different,[17] I have used the cases to identify a sentencing range against which to examine your sentence.

[17] The DPP v Dalgleish [2017] HCA 41.

80I have also considered a number of intermediate appellate court authorities[18] for guidance as to the relevant sentencing principles and practices.

[18] DPP v Mark Armstrong (2007) VR; DPP v Mathew James Bunning [2007] VSCA 34; R v Christopher Sean Vincent [2009] VSCA 87; R v Huy Vinh Quach [2010] VSCA 106; Sara Borg v the Queen [2020] VSCA 191

81Overall, your counsel submitted a sentence of a prison term combined with a CCO is within sentencing range, in all the circumstances of your case.

Respondent’s submissions

82Mr Brydon, who appeared for the prosecution, submitted your deliberate fabrication of expert witness statements, including them in court documents and misleading the Office of Public Prosecutions, to support a wrongful prosecution, is a serious breach of trust. And accordingly, your moral culpability is high.

83He acknowledged:

(a)   you are entitled to a sentencing benefit for your guilty plea;

(b)   you are remorseful and unlikely to reoffend; and

(c)   prison will be harder for you because of

(i)your poor mental health; and

(ii)your status as a disgraced police officer.

84He submitted there was insufficient material before the court:

(a)   to establish a nexus between your offending and your mental health; or

(b)   to be satisfied there is a serious risk that imprisonment will have a significantly adverse impact on your mental health.

85Nevertheless, he acknowledged, your poor mental health is relevant to the kind of sentence to be imposed and also, because of it, general and specific deterrence are to be moderated.

86He submitted, overall, mitigating factors are not sufficiently compelling to justify a sentence other than a term of imprisonment with a head sentence and non-parole period fixed.

Analysis

87Corrupt police misconduct, as yours was, has significant social consequences. It undermines public confidence in the police force, erodes the morale of honest police officers and can encourage other police to ignore similar behaviour. [19]

[19] DPP v Armstrong [2007] VSCA 34, [32] and [34], per Neave JA, Vincent JA and Kellam AJA agreeing.

88The public is entitled to rely upon the integrity of police officers in investigating and prosecuting offenders. It is entitled to expect that police officers will not abuse the trust placed in them. [20]

[20]The Queen v Mathew James Bunning [2007] VSCA 205, [51], per Kellam JA, Maxwell P and Whelan AJA agreeing.

89I must impose a sentence which reflects public denunciation of police misconduct and deters other police from committing similar offences. General deterrence must be given significant weight in the sentencing process. [21]

[21]DPP v Armstrong [2007] VSCA 34, [35].

90There are significant matters of mitigation.

91Firstly, you pleaded guilty at an early stage. It has high utilitarian value and demonstrates your acceptance of responsibility for your actions and your remorse. I accept you are genuinely remorseful.

92Secondly, you have no prior convictions and, until you committed this crime, you were a person of good character and reputation.

93Thirdly, you have lost your good reputation. You have also lost your job and your career. You have suffered public humiliation as a result of publicity surrounding your offending.

94Fourthly, you have a history of trauma, anxiety and depression. Your wife also has her own mental health struggles.

95Prison will be harder for you because of:

(a)   your poor mental health [22] which may deteriorate in custody;

(b)   the likelihood you will serve your jail term in protective custody; and

(c)   your worry for your wife and children who will have to cope without you.

[22] Verdins, Limb 5.

96Your mental health also reduces the weight to be given to general and specific deterrence and influences the kind of sentence I will impose. [23]

[23] Verdins, Limbs 3, 4 and 2.

97While your psychologist believes your decision-making was compromised when you offended, without more, I am not satisfied there is a sufficient nexus between your poor mental health and your offending in order to moderate your moral culpability.

98And while she also believes you mental health may deteriorate in prison, again, without more, I am not satisfied there is a serious risk imprisonment will have a significantly adverse impact on your mental health.[24]

[24] Verdins, Limb 6.

99I consider you are unlikely to reoffend. Since your arrest you have committed yourself to your family, while you cannot work, and taken steps, to address your mental health.

100In my view, your prospects of rehabilitation are excellent.

101The principle of proportionality requires me to impose a sentence which is proportionate to the gravity of your crime, taking into account all the circumstances. [25]

[25] Veen v the Queen (No 2) (1988) 164 CLR 465, 471 – 72, 485 – 87, 490 – 91, 495 – 496.

102I must also impose a sentence no more than severe than necessary to achieve the purposes of sentencing. [26]

[26] Sentencing Act 1991 (Vic), section 5(3); R v Piacentino (2007) 15 VR 501, [47].

103While I have given full weight to your mitigating factors, I have concluded only the imposition of a sentence of imprisonment, with a head sentence and non-parole period fixed, can adequately reflect the gravity of your crime.

104Because you have substantially progressed rehabilitation, which is now interrupted by your incarceration, I will fix a shorter than usual non-parole period to mitigate your punishment in favour of your continuing rehabilitation through conditional freedom[27]

[27] Power v R (1974) 131 CLR 623 at 6 to 9; R v VZ [1998] 7 VR 692, [14]

105Mr Symes, please stand.

106By the sentence I impose, I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.

107Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of misconduct in public office, you are sentenced to 3 years imprisonment.

108I fix a minimum non-parole period of 18 months.

109I declare you have served 11 days of your sentence by way of presentence detention.

110While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to four years and three months imprisonment and fixed a minimum non-parole period of two years and nine months.