Director of Public Prosecutions v Zammit

[2018] VCC 2035

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01741

DIRECTOR OF PUBLIC PROSECUTIONS

v

TANIA ZAMMIT

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2018
DATE OF SENTENCE:	29 November 2018
CASE MAY BE CITED AS:	DPP v Zammit
MEDIUM NEUTRAL CITATION:	[2018] VCC 2035

REASONS FOR SENTENCE
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Subject: Misconduct in Public Place
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: $10,000 fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Ong
For the Accused	Mr R. Galbally

HIS HONOUR:

1Tania Zammit, you have pleaded guilty to one charge of misconduct in public office.  That offence carries with it a maximum penalty of ten years' imprisonment.  You have also pleaded guilty and agreed to having dealt with it by this court a summary charge of possession of a Schedule 4 poison, clenbuterol, without being authorised for which the maximum penalty is ten penalty units.

2The circumstances of your offending are contained in an amended summary of prosecution opening dated 28 November 2018 which was tendered in evidence and marked as Exhibit A.  That document was read in open court by the prosecutor, Mr Ong, and your counsel, Mr Galbally, accepted that the document was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.

3It is therefore not necessary that I here repeat that which is there set out except in a very abbreviated way.  Your offending occurred in the context of you being a prison officer employed at Port Phillip prison.  You formed an inappropriate relationship with a prisoner between November 2016 and 24 May 2017.

4On the latter date, the fact that you had been detected offending was brought to your attention and you resigned from your position later that day and lost your employment.

5As the indictment records, you were a public official and you engaged in misconduct in a number of ways set out in the charge; firstly, by engaging in a prohibited relationship with the prisoner which included kissing, touching and sexual activity on prison grounds; secondly, by engaging in a prohibited relationship with the same prisoner by exchanging letters and notes both in and outside of the prison; thirdly, by providing the prisoner with contraband items; fourthly, by allowing the prisoner into staff only areas of the prison; fifthly, by leaving other prison officers alone whilst on duty during the dispensation of medication; and finally by associating with a member of an organised motorcycle gang without clearance.  The prisoner in question was a member of an organised motorcycle gang.

6The nature and extent of your relationship is set out in the prosecution summary.  You were aware of the fact that what you were doing was wrong and in order to continue to correspond with the prisoner, you took steps on your computer to secure correspondence drafted by you and you arranged for a friend to establish a post office box to which correspondence could be delivered.

7You also made contact with and communicated with a friend of the prisoner outside of the prison and he also being a member of the same motorcycle club.  The particular in the indictment that relates to you allowing the prisoner into staff only areas of the prison is really confined to one room.

8The particular relating to you leaving staff alone whilst not attending to your position at the door where medication was being dispensed relates to you effectively meeting with the prisoner at the other end of the room and accessing a different room.

9OFFENDER:  Your Honour, can I just say something to that?

10HIS HONOUR:  Just a moment.  Just, if you would.  In addition, it is alleged that you smuggled items referred to as contraband into the prison and provided them to the prisoner.  These items were not drugs or weapons or items for communication or tools that might be used to fashion weapons or to bring about a potential escape but they were hats and exercise pants and singlets and runners, food and other unknown items.

11Mr Galbally, on your behalf, filed a detailed outline of submissions and in paragraph 6, he pointed to a number of features of your offending which distinguish it in my view from what might otherwise be regarded as very serious offending.

12Firstly, he points out that the contraband concerned did not consist of drugs, firearms, weapons, tools, telephones, drugs, medication, money or the like.  The items introduced by you to the prisoner were not for the purposes of aiding an escape nor putting the integrity of the prison system at risk nor the safety of any prisoner or staff member nor to provide currency amongst prisoners nor affecting prison discipline.

13He submitted and I accept that your relationship with the prisoner can only be characterised as a personal relationship and a romance.  You had not been paid money to do what you did and that in some ways distinguishes you from some of the other cases mentioned.

14Whilst I accept that this kind of offending is serious and the sentence imposed needs to reflect a general deterrence, I accept the submission made by your counsel that this offending falls towards the lower end for this kind of offence because of the features that I have mentioned above.

15You have pleaded guilty to the charges and that is to your credit.  Because you have pleaded guilty, you have saved the time and cost of a trial and by your pleas of guilty, you have accepted responsibility for the offending.  Your pleas of guilty in my view also reflect remorse on your behalf for your offending.  Because you have pleaded guilty, you are entitled to a reduction in sentence from that which might otherwise apply had you fallen for sentence having been convicted by a jury after a trial.

16You are now aged 51 years and because of this offending, you find yourself unemployed with a mortgage over a property that you own of which you, I am told, have sufficient equity in.  You are the mother of two children, a boy and a girl, aged in their 20s and you have brought them up virtually single handed after your marriage failed.  You have an elderly mother who is still alive and who is not cognisant of these charges having been brought against you.

17You are a person without any prior convictions and there is nothing pending against you.  You have, thus far, these matters aside, led an unblemished life.  You have a good work history commencing in 1984 and even after these matters, you had managed to get back into employment until these matters were brought to the attention of your employer and you unfortunately lost the job that you had secured.

18I heard evidence from your brother, Mr Steven Zammit, and from a work colleague, Mr Paul O'Sullivan, both of whom gave very good evidence on your behalf as to your character and your work ethic and the fact that you are remorseful.  In my judgment, your chances for a complete rehabilitation are excellent, though I doubt whether you will ever offend again, certainly not in this way because it is highly likely that you will again be employed in a situation such as that which gave rise to this offending.

19As I indicated earlier, the purposes of sentencing in this kind of offending make general deterrence the primary purpose of sentencing.  That is because the public has a strong interest and trust in the prison system that prisoners will be kept secure and be able to live in an environment where their rehabilitation is given the best possible opportunity.  Unfortunately, you breached that trust but as I say in a way in my view which falls towards the lower end.

20Mr Galbally submits that an appropriate sentence would be a fine.  He indicated to me that you would be in a position to borrow money against your home in order to pay the fine and you would have to pay it off over a number of years.  Alternatively, he asked me to give consideration to the imposition of a community corrections order.

21Mr Ong who appeared to prosecute submitted on behalf of the Director that an appropriate sentence here was imposing a term of imprisonment.  I am not convinced that that is the appropriate sentence whilst I accept, as I have indicated, that a sentence for a crime of this kind must be influenced by proper application of the principle of general deterrence.

22In my view, the fine that I propose to impose upon you will signify appropriately the level of your offending and to others involved in the prison system by way of prison officers, it will certainly send a message to them that if they offend in the way that you have, they will be appropriately punished.

23On the charge of misconduct in public office, you are convicted and fined the sum of $10,000.

24On the charge of possessing a Schedule 4 poison, clenbuterol, without authorisation, you are convicted and discharged.

25The prosecution has sought the making of a forensic sample order under s.464ZF of the Crimes Act.  That application was not opposed and for the reasons stated in the order, I propose to sign it.

26The prosecution also seeks the making of a forfeiture and disposal order of various items.  Those orders are also not opposed and I will sign those orders.

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