Director of Public Prosecutions v Thomas
[2024] VCC 1019
•5 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-23-01905
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCUS THOMAS |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2024 | |
DATE OF SENTENCE: | 5 July 2024 | |
CASE MAY BE CITED AS: | DPP v Thomas | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1019 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Attempt to pervert the course of justice – Unauthorised access to police information – Excellent prospects of rehabilitation.
Legislation Cited: Victoria Police Act 2013 s 227; Sentencing Act 1991 ss 6AAA, 8.
Cases Cited:The Queen v Buscema [2011] VSC 206.
Sentence: Community Correction Order for a period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Lee for Plea Ms E Washington for Sentence | Office of Public Prosecutions |
| For the Accused | Ms F Fox | Tony Hargreaves & Partners Lawyers |
HIS HONOUR:
Introduction
1Marcus Thomas, you have pleaded guilty to one charge of attempt to pervert the course of justice contrary to Common Law, which carries a maximum penalty of 25 years imprisonment (Charge 1).
2You have also pleaded to a related summary offence of unauthorised access to police information contrary to s 227 of the Victoria Police Act 2013, which carries a maximum penalty of 2 years imprisonment (Summary Charge 3).
3You have no prior criminal history.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
Charge 1 – Attempt to pervert the course of justice
5At the time of the offending, you were a sworn Victoria Police Employee, having joined on 10 February 2014 and attained the rank of Senior Protective Services Officer (‘PSO’).
6You were listed as the respondent in a Personal Safety Interim Intervention Order (‘PSIO’), which arose from a separate complaint made to the Professional Standards Command – Sexual Offence and Family Violence Unit in February 2023.
7The application for the PSIO was made by Detective Sergeant Jess Mastroianni and was issued, along with a summons, by the Magistrates’ Court in Melbourne on 21 February 2023 and listed for hearing on 27 April 2023.
8The PSIO and summons to appear were served on you by Detective Sergeant Mastroianni on 21 February 2023 at 1:25pm.
9The protected person on the order is a 15-year-old male, who you met through the course of your duties.
10Jack Gough[1] first met you virtually on 22 October 2022 via the online dating app Grindr.
[1] A pseudonym.
11You and Mr Gough commenced communicating through messages on the app, which led to an in-person meeting on 24 October 2022.
12You and Mr Gough maintained casual online contact after this first meeting via two online platforms, Instagram and Discord. The two of you did not meet up in person again after the first meeting.
13You told Mr Gough you are a Protective Services Officer and Mr Gough told you he was studying psychology.
14In February 2023, you told Mr Gough you were stressed at work because of an incident that had occurred.
15Approximately one to two weeks later, Mr Gough contacted you. You told Mr Gough you could not go down the main street of Hurstbridge because a person with a court order against you lived within 200 metres of the main street.
16It was a condition of the PSIO that you were not permitted to go or remain within 200 metres of any place where a protected person lived, worked or attended school or childcare.
17On 27 April 2023, you attended the Melbourne Magistrates’ Court as per the summons and made an application to the presiding Magistrate to vary the condition prohibiting you from being within 200 metres of where the protected person lived, to enable you to visit your psychologist for mental health treatment.
18The relevant exchange, captured on transcript, was as follows:
You:
Can I only ask that we amend the one condition, Your Honour.
His Honour: What’s that?
You: I have a psychologist friend that I believe may live within 200 metres. I don’t know the affected person’s physical address but I believe it might be within in the 200 metres of my psychologist.
His Honour: Is this someone who you're attending on professionally or is it a social?
You: Friend and professional. But if it was reduced to 100 metres it would probably exclude the area of my concern.
Police Lawyer: Your Honour, I'm mindful that the protected person in this party is underage. Obviously all concerns and safety measures have to be taken into consideration. Perhaps an amendment to the condition ‘unless attending an appointment’ per se might be appropriate in the matter which allow Mr Thomas to attend if he does have an appointment but if he doesn't, then he will have to be excluded from –
You: I agree with that.
19The information you provided the Magistrate on this occasion resulted in the Magistrate varying the PSIO on 27 April 2023, as requested by you. This variation enabled you to ‘go to or remain within 200 metres of any place where a protected person lives, works or attends school/childcare, except if consulting [Jack Gough] psychologist for professional assistance’.
20At 1:16pm on 27 April 2023, the PSIO was served on you at the Melbourne Magistrates’ Court.
21At 1:32pm on 27 April 2023, you sent a photograph of what appeared to be part of the PSIO along with a message via Discord to Mr Gough, saying ‘Now we are free to catch up whenever as long as you send me a message saying I’m booked for an appointment’.
22A message conversation over Discord then ensued between you and Mr Gough as set out at paragraphs 25 – 27 of the prosecution opening. Mr Gough was concerned about his name appearing on what appeared to be a legal document and emailed screenshots of the messages to the Heidelberg Magistrates’ Court advising them that he had been falsely listed on someone’s legal document.
23Mr Gough only knew you by your username on Instagram, which was not your real name. He was told that without a name or case number, the court was unable to assist.
24Mr Gough then contacted Eltham Police Station and spoke to Senior Constable Shane Greatrex, who reported the conversation to Sergeant Daniel Whelan, who in turn spoke to you on the phone on 2 May 2023. During that call, you indicated that the 27 April 2023 hearing ‘went well’ and ‘other than requesting a couple of minor amendments, it’s all good now’.
25You explained the variation sought, and when Sergeant Whelan had queries about whether a friend could be your treating psychologist, you said ‘yeah but the plan is to book me in for a visit then just go see my friend to get around the order’.
26Professional Standards Command – Sexual Offence and Family Violence Unit was notified of your telephone call to Senior Constable Greatrex.
27On 4 May 2023, Detective Sergeant Greene contacted Mr Gough who provided her with a copy of the email and screenshots he had sent to the Heidelberg Magistrates’ Court, along with some further screenshots of messages between you and him.
28On 10 May 2023, Mr Gough provided investigators with a sworn statement. Mr Gough did not, at any time, tell you he was a psychologist, and he was unaware that you were going to cite this to the Court.
29You have never had a professional appointment with Mr Gough, nor have you ever sought treatment with Mr Gough or spoken with him about treatment.
30Mr Gough was not your psychologist, but rather a person you met on an online dating site and with whom you were attempting to have an intimate personal relationship.
31Your psychologist is Dr Maritza Thompson and on 27 April 2023 at 5:44pm, you received a text message reminder from Dr Thompson of an appointment for the following day, 28 April 2023, at 9:30am. You replied to this text message with ‘yes’.
Summary Charge 3 – Unauthorised access to police information
32On 29 October 2022, you commenced your shift as a PSO at 8:00pm and were tasked to patrol Heidelberg Railway Station.
33You reported your activity for the shift on an Electronic Patrol Duty Return (‘EPDR’). You accessed the Victorian Police LEAP on two occasions during your shift.
34The first LEAP check conducted for the shift was at 9:52pm. This check was recorded on your EPDR as a car check along with a description for the reason of the check.
35The second LEAP check you conducted for the shift was at 11.14pm. This check was conducted on ‘Jack Gough’ and was not recorded on your EPDR.
36There is no description recorded on your EPDR at the time the LEAP check was conducted to justify your reason for conducting the LEAP search.
37Each time a member of Victoria Police accesses and uses the LEAP database, they are required to read and respond to a series of statements. Endorsing ‘YES’ to all the statements indicates the member is agreeing that the information they are about to access in LEAP is ‘solely for genuine law enforcement or community policing purposes and/or responsibilities.’
38Upon reading and responding to these statements, if access is granted, the member must then enter a ‘Reason for Access’ code.
39When you conducted the LEAP check on Mr Gough, you selected your ‘Reason for Access’ as being code ‘99 – Other’. This code requires a mandatory remark, which you recorded as ‘POI’ (i.e. ‘person of interest’).
40Your access to Jack Gough’s LEAP database profile included a Master Name Enquiry check and from this you then further interrogated Mr Gough’s profile to view a matter Mr Gough had previously been involved in.
41You conducted an unauthorised LEAP check on Jack Gough, a person with whom you had met on a dating site one week prior to conducting the check and whom you had met in person 5 days prior to conducting the LEAP check.
42You did not have a lawful business purpose for conducting the LEAP check on Jack Gough.
Search warrant, arrest and record of interview
43At approximately 8:15am on Thursday 11 May 2023, investigators executed a search warrant at your residential premises in Coburg North.
44Investigators seized a Samsung Galaxy S23 mobile telephone belonging to you, a hard drive tower, an internal hard drive and an external hard drive.
45A physical analysis was conducted of your mobile telephone. Messages between you and Jack Gough in relation to the variation of the PSIO were located on the Discord application. These messages corroborate those supplied by Mr Gough.
46You were arrested and conveyed to Victoria Police Centre, Docklands, and were interviewed at the offices of the Victoria Police Professional Standards Command at 10.22 am on 11 May 2023.
47Regarding Charge 1, attempt to pervert the course of justice, you stated in your record of interview that:
(a) you asked the Magistrate to change the condition on the order to shrink the 200 metre bubble to 100 metres so that you could see your friend;
(b) you told the Magistrate that your friend was studying psychology;
(c) unbeknownst to you, the Magistrate put Mr Gough down as a registered psychologist, even though he is not registered but rather a doctoral student;
(d) you never had an appointment with Mr Gough, you were not planning any and you cannot have them;
(e) you did not realise the Magistrate put it on the order and only realised after the registrar gave you the report;
(f) you did not take any action to have the PSIO corrected except to contact Mr Gough;
(g) Mr Gough asked you to remove it and you told Mr Gough he had to wait until the next hearing; and
(h) you were going to wait until the next court date.
48Regarding Summary Charge 3, unauthorised access to police information, you stated that:
(a) you could not recall seeing Mr Gough while working or conducting the LEAP check;
(b) you did not know Mr Gough at the time the check was conducted; and
(c) if you did a check then it might have been because Mr Gough was ‘drunk on the train or something’.
Nature and gravity of the offending
49While attempt to pervert the course of justice is an inherently serious offence, it can encompass a broad variety of circumstances. If the offender is connected to the justice system as you were, the gravity of the offending can be higher as it may undermine public confidence in the system. In such cases the assessment must consider whether the conduct resulted in the deception of the court or the creation of false public records and if so, the extent and consequences of that deception.[2]
[2] The Queen v Buscema [2011] VSC 206, [6].
50However, the circumstances in this instance are rather unique. The misinformation you provided to the Magistrate was designed not to undermine the purpose of the PSIO, but rather to allow you to have contact with Mr Gough, with whom it seems you had an obsession. Thus, while you still misled the court, you did not do so with the intention of contacting the protected person. Further, your conduct is unlike the more common examples of the offence where for example, a person seeks to pressure a witness to change their statement, which may involve threats, intimidation, or violence.
51Ms Fox who appeared on your behalf, highlighted the fact that you were not represented at the hearing and did not seek legal advice prior to asking for the variation. Ms Fox submitted that your moral culpability is therefore low as your request was ill advised and naïve. She also submitted that while you sought to vary the order, you were concerned about inadvertently breaching it by endeavouring to having contact with Mr Gough.
52In my view, your fixation with Mr Gough clouded your judgment when you appeared before the Magistrate leading you to make the decision to provide false information about Mr Gough in order for you to still be able to have the opportunity of physical contact with him. In that sense there was a degree of thought that preceded your submission to the Court. In all the circumstances, while it is concerning that as a person who is part of the legal system you acted in the way that you did, I accept that your conduct represents a relatively low level example of attempting to pervert the course of justice.
53As to the related summary offence, which occurred some six months earlier than the offence on the indictment, it too seems to have been motivated by your interest in Mr Gough, and while it is also concerning that you ignored the rules in relation to accessing the database, I accept that in the circumstances it too is a relatively low level example of the offence.
Personal circumstances
54You were born in 1988 and are now 36 years old. You are the older of two siblings, and both your father and maternal uncle were police officers. Your mother passed away in 2006 from Motor Neuron Disease, which naturally had a tremendous impact on you. For the last 11 and a half years, you have been in a relationship with your fiancé, a senior post-doctoral scientist working on the development of malaria vaccines.
55You were schooled at Camberwell Grammar from 2001 to 2004, ultimately completing VCE at Doncaster East Secondary School. You commenced a Bachelor of Biomedical Science at RMIT but did not complete the degree. You worked from 2006 as a pharmacy assistant and went on to earn a promotion to assistant manager in 2012. You continued working at the pharmacy until 2014, when you left to become a member of Victoria Police. Your manager from this period, Vania Da Silva, attests to your positive attitude and dedication. Following your resignation from Victoria Police, you reached out to her for work and were offered a position as a retail manager, which you accepted. You continue to work in this position and enjoy the support of Ms Da Silva, as evidenced by her character reference, which was tendered on the plea.
56You became a PSO in large part due to the influence of your father and uncle. At the time of your arrest, you had served as a PSO for nine years and had obtained the rank of PSO Senior. You were actively seeking promotion to Sergeant, after having held the rank of Acting Sergeant some six months prior to your arrest. Your father provided a character reference on the plea in which he describes you as having been proud of your position as a PSO. Your uncle, who was a senior member of Vitoria police before his retirement, also provided a reference in which he notes he acted as a mentor to you and was your first point of contact when your offending came to light. He remains supportive of you.
57You currently see your psychologist, Dr Thompson, every four to six weeks. You started seeing her on 22 March 2023 after being referred to her through the Victoria Police Employee Assistance Program, for the purpose of seeking assistance in managing your distress and anxiety triggered by the investigation into you. You otherwise appear to be well supported by your family and community. Your fiancé, who is unable to return to his country of origin, Saudi Arabia, due to his sexual orientation and atheist views, provided a character reference affirming the life the two of you have built together and attesting to your hardworking, honest and reliable attitude.
Sentencing considerations
58I take into account your plea of guilty. While you ran a contested committal, you have nonetheless accepted responsibility for your conduct thereby saving the community the time and expense of a criminal trial.
59Given your otherwise good character, supports in the community and excellent employment history, in my view your prospects of rehabilitation are excellent. This conduct resulted in you resigning from your position as a PSO where you were well respected and were actively seeking promotion at the time of this offending. You have paid a heavy price for your misguided conduct but have demonstrated that you are able to move on and you have secured employment in a management role.
60General deterrence is clearly the prominent sentencing principle in cases such as this. Persons that work as part of the criminal justice system must be reminded that interference with the system by conduct such as yours will have consequences. However, for similar reasons that I have highlighted in relation to your rehabilitation, in my view specific deterrence need not carry weight in the sentencing discretion.
61Ms Fox submitted that a community-based disposition, without conviction, is able to meet the relevant sentencing considerations in this instance. Mr Lee who appeared on behalf of the Director of Public Prosecutions, accepted that a community correction order is an appropriate disposition, however submitted that it should be with a conviction recorded.
62In respect of the recording of a conviction, Ms Fox referred to the considerations outlined in s 8 of the Sentencing Act 1991 (‘Sentencing Act’), highlighting the nature of the offence and your character and past history as relevant. As to the impact of the recording of a conviction on your ‘social wellbeing’ Ms Fox noted the nature of your partner’s work involving international travel. While you may possibly be restricted in future travel with your partner if you received a conviction, in my view this is of limited weight.
63In the circumstances in my view a community correction order with unpaid community work is an appropriate disposition. Having considered the s 8 criteria, I am also of the view that in order to meet the relevant sentencing considerations, in particular general deterrence, a conviction should be recorded.
Sentence
64Mr Thomas, would you please stand.
65Marcus Thomas, on Charge 1, attempting to pervert the course of justice, and related Summary offence, unauthorised access to police information, you will be convicted on each charge and placed on a community correction order for a period of 12 months. In addition to the standard conditions that attach to all community correction orders, you will be required to complete 50 hours of unpaid community work.
66Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a term of imprisonment together with a community correction order.
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