DPP v Armstrong
[2007] VSCA 34
•1 March 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 390 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| MARK ARMSTRONG |
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JUDGES: | VINCENT and NEAVE, JJ.A. and KELLAM, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 February 2007 | |
DATE OF JUDGMENT: | 1 March 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 34 | |
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Criminal Law – Crown Appeal – Misconduct in public office – Theft – Trafficking in cannabis – Gravity of offences involving misconduct in public office - Total effective sentence of 12 months with 8 months suspended for two years manifestly inadequate – Appeal allowed – Respondent re-sentenced to two years imprisonment – 12 months suspended for two years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C M Quin | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr D Grace QC | Rob Stary and Associates |
VINCENT, J.A.:
I will invite Neave, J.A. to deliver the first judgment in this matter.
NEAVE, J.A.:
This is an appeal by the Director of Public Prosecutions against the sentences imposed on the respondent, a former police officer, who pleaded guilty to three counts of misconduct in public office, two counts of theft and one count of trafficking in a drug of dependence.
The Facts
The circumstances in which the offences were committed were as follows. The respondent joined the police force in 1996. At the time of sentencing he was aged 32 and had served as a police officer for ten years. He held the rank of Detective Senior Constable.
When the offences occurred he was stationed at Footscray in the Complaints, Licensing and Task Unit. In late 2005, Constable Matthew Johnson ("Johnson") joined the unit.
The offences arose out of separate transactions with two cannabis growers. Constable Johnson had an unregistered informant, Phong Than Nguyen (“Phong”). In January of 2006, Phong supplied Johnson with details of a hydroponic cannabis crop being grown by his uncle, Tam On (“On”), at premises in Thomastown. Johnson informed the respondent that he wanted to go and see On and asked the respondent to accompany him. Mr Armstrong said that he did not want to do so but after repeated approaches from Johnson he agreed to accompany him. The respondent knew that Johnson was in financial difficulty. In a record of interview conducted by the Ethical Standards Department as part of its investigation of the offences, the respondent said that—
"I knew [Johnson] was out to get information for himself, to use for himself and not for the job, that is our police role, he wanted to make money for himself, his financial gain."
The respondent said that he accompanied Constable Johnson out of an obligation to see he was all right, and not to help him financially.
On 11 February 2006, both the respondent and Johnson went to Footscray police station. Although they were not rostered to work, they both signed out firearms and other equipment before going to On's address in an unmarked police car.
When they arrived at On's address, both Johnson and the respondent identified themselves as police officers. Johnson showed On a document that he claimed was a search warrant. As the respondent was aware, no search warrant had been issued, and On had only limited English. Both the respondent and Johnson were wearing a gun in a holster with a shirt over the top of the gun. The bottom of the gun was visible to On. The first count of misconduct in public office (count 1) was based on the respondent unlawfully gaining entry to the Thomastown premises by allowing Johnson to state that he had a search warrant.
The house was then searched and 18 cannabis plants were found growing hydroponically in a bedroom. Johnson instructed On to harvest the crop and the respondent and Johnson assisted him in doing so. The cannabis plants were put into brown paper bags and taken to the unmarked police car. Johnson and the respondent also took some heat globes used to dry out cannabis. This conduct gave rise to the first count of theft (count 2).
Whilst in the house, and in the presence of the respondent, Johnson asked On if he had any money, and On offered to borrow some money to give to Johnson. Johnson then said that if On gave him some money he would have no further trouble. After leaving On's house, the respondent and Johnson visited Phong and asked him where the cannabis could be dried out. They were directed to a farm in Rockbank Road, Mount Cottrell, which belonged to Phong's aunt. The respondent and Johnson went to the property, removed the cannabis from the police car and spread it out to dry on paper bags in a shed on the property. Phong's aunt did not know that this had been done. During this time, Johnson and On discussed splitting the proceeds of the sale of the cannabis three ways. This conduct gave rise to the count of trafficking in a drug of dependence (count 3).
Later that evening there were a number of phone calls between Johnson and On to find out whether On had acquired the money he had promised to pay. On arranged to meet Johnson on the Western Ring Road in Campbellfield, and Armstrong accompanied Johnson to the meeting. While the respondent remained in the car, Johnson went to the vehicle in which On and his wife were sitting and was handed $8,000, which On had borrowed from his brother. Johnson told On that he would not be in any trouble. Although Armstrong did not have any contact with On at this meeting, he was aware of what was going on and did not prevent Johnson from extorting the money from On. This conduct provided the basis for the second count of misconduct in public office (count 4).
The next day Johnson told Armstrong that the cannabis crop was missing because it had been seized by the police. They both went to On's address to ensure that he had not spoken to other police. On 16 February, Armstrong made enquiries about the involvement of the Asian Squad in the investigation arising out of the discovery of the marijuana at the Melton property, but he did not reveal that he knew anything about the matter. When Johnson was interviewed by the Ethical Standards Department on 21 February 2006, he claimed that he and the respondent and Phong, his informer, had attended the Mount Cottrell address, had seen the cannabis at the property, and had planned to make further enquiries and execute a search warrant. Some days later, Armstrong provided a statement confirming Johnson's version of events.
On 23 March 2006, Armstrong was arrested as a result of information given by Phuong and On to the Ethical Standards Department. Initially he made a "no comment" record of interview. On 19 April 2006, he requested a second interview. At that interview he admitted the theft of cannabis from On, admitted taking the cannabis to the Mount Cottrell property, and denied any plan to split the proceeds three ways.
Counts 5 and 6 arose out of events which occurred when the respondent and Johnson went to a house in Werribee, from which they had been informed that drugs were being trafficked. With Armstrong's knowledge, Johnson again produced a document which purported to be a search warrant. This provided the basis for the third count of misconduct in public office (count 5). The property was searched and approximately 20 cannabis plants were located. Both Johnson and Armstrong cut the plants, put them into rubbish bags and removed them from the house. The seizure of the cannabis was not recorded or entered through the police property book. Count 6 related to this theft of cannabis.
In his police interview the respondent said that Johnson had told him that Coombes could provide information about a high-level dealer and that he thought that Coombes would not be charged if he did so. He said that he had assumed that Johnson would simply throw the cannabis away. The respondent did not receive any money or benefit from the cannabis.
The Sentencing Remarks
The learned sentencing judge found that—
“…Johnson initiated these offences, and that [the respondent] just went along with him.
It is also clear from all of this that, by the time [the respondent] went out to Thomastown with Johnson, [the respondent] knew that he was a police officer who, at the very least, was prepared to cut corners, was high-handed, and was prepared to do things which could jeopardise successful prosecution."
His Honour took account of a number of mitigating factors, which I refer to below. He said that, in light of the respondent's contrition, “specific deterrence is not a relevant consideration”. It was necessary, however, to give considerable weight to the need to deter other members of the Victoria Police Force from behaving corruptly or abusing their power. His Honour made reference to the seriousness of the respondent's offending, noting that—
"Corruption in the police force can only flourish if decent officers turn a blind eye to it. Every corrupt or wayward member of the Victorian Police Force must understand that if they abuse their powers or cross over to the other side of the law the courts will see that they face the humiliating and degrading experience of sharing prison with common criminals, onerous as that may be for them."
For the offences relating to misconduct in public office, the respondent was sentenced to one month's imprisonment for count 1, 12 months' imprisonment for count 4 and one month's imprisonment for count 5.
For the two counts of theft, he was sentenced to three months' imprisonment on count 2 and one month's imprisonment on count 6.
He received a sentence of six months' imprisonment for trafficking in a drug of dependence (count 3).
His Honour ordered that each sentence was to be served concurrently, resulting in a total effective sentence of 12 months' imprisonment, eight months of which was suspended for two years.
The Appeal
The Director of Public Prosecutions appeals against the individual sentences, the head sentence and the extent of the order for partial suspension, on the sole ground of manifest inadequacy. Counsel for the Director, Ms Quin, conceded that the learned sentencing judge had made appropriate reference to the factors to be taken into account in sentencing the offender. She did not identify any specific error in his Honour's sentencing remarks, but contended that the sentence was inadequate, having regard to the gravity of the three counts of misconduct in public office and the principle of general deterrence.
The appellant's written outline of argument contended that his Honour had given insufficient weight to factors which aggravated the offender's blameworthiness, including the fact that he held a senior rank to Johnson and that the offences involved serious breaches of trust. Even having regard to mitigating factors, such as the respondent's offer to give evidence against his co-offender, the sentence did not adequately take account of the reprehensible nature of the respondent's conduct. No challenge was made by Ms Quin to partial suspension of the sentence imposed on the respondent, but it was contended that the appellant should have been required to spend a longer period in custody.
Part 3, Subdivision (3) of the Sentencing Act 1991 permits the whole or partial suspension of a sentence of imprisonment not exceeding three years.[1] Counsel for the respondent, Mr Grace, initially submitted that the DPP's submission that it was open to the sentencing judge to partially suspend the total effective sentence imposed on the respondent meant that the total effective sentence should not exceed three years.
[1]Section 27.
Mr Grace said that no specific error could be identified in his Honour's reasons. The sentence was not manifestly inadequate because if three years were regarded as the starting point for its imposition, the weight which this Court must give to the double jeopardy principle would necessarily mean that a sentence could not be imposed which varied significantly from the sentence which was imposed by the learned sentencing judge. In the circumstances, this Court should not interfere with his Honour's sentencing discretion.
I do not accept that reasoning. The role of this Court is to determine whether his Honour erred in sentencing the offender on the individual counts and/or in fixing the total effective sentence. If this is the case, we must then exercise our re-sentencing discretion and in doing so consider whether partial suspension is warranted in light of the circumstances of the case.
Mr Grace also submitted that it was appropriate for his Honour to give considerable weight to—
· The respondent's excellent record of service as a police officer before he committed the offences.
· His willingness to give evidence against his co-offender Johnson and to cooperate with the police in relation to a number of other matters.
· The respondent's proposal that he should speak to recruits at the Police Academy to alert them to the risks of becoming involved in corruption.
· The favourable references received by the respondent.
· The support available to the respondent from his family, his partner and his employer which would contribute to his prospects of successful rehabilitation.
Mr Grace said that since the respondent had been sentenced he had in fact given evidence against Johnson. His willingness to do so was said to be a powerful mitigating factor which should attract a sentencing discount of up to 50 per cent. The respondent had given outstanding service over his 10 year career and had received a number of letters of commendation. He had not initiated the offences, but had been led into them by Johnson. By his foolish actions, he had destroyed his career, which was the only career for which he had been trained. He had pleaded guilty and had demonstrated his remorse by his willingness to speak to police recruits. The respondent was devastated by the consequences of his offending.
Mr Grace submitted that the sentencing judge was faced with the difficult task of weighing the seriousness of the respondent's misconduct in public office against the powerful mitigating factors operating in his favour. He submitted that the sentence imposed was not outside the range of sentences imposed in comparable cases. Given that no specific error had been demonstrated, the Court should not interfere in the exercise of the discretion of the sentencing judge.
Conclusion
It is unnecessary for me to repeat the well established principles which govern appeals against sentence by the Director of Public Prosecutions.[2] Despite these principles, it is my view that the sentences imposed for the counts relating to misconduct in public office were so manifestly inadequate as to demonstrate that an error in principle must have occurred.
[2]See for example R v Clarke [1996] 2 VR 520 at 522; R v Josefski (2005) 13 VR 85; DPP v Leach [2003] VSCA 96.
His Honour clearly acknowledged the serious consequences of police misconduct. However, the sentences imposed for counts 1, 4 and 5 do not adequately reflect the gravity of these offences, for which the maximum sentence is a term of imprisonment of 10 years. The respondent was sentenced to only one month's imprisonment on each of the counts involving illegal entry on to premises and to only one year's imprisonment on the count covering the extortion of money from On in return for not reporting the presence of cannabis.
Members of the police are in a position to exercise considerable power over others. The respondent's behaviour seriously abused that power. Mr Armstrong allowed his co-offender to pretend that he held a search warrant on two separate occasions. With his co-offender, the respondent went armed to On's premises and participated in a process of extorting money from him on the basis that On would not be prosecuted if he cooperated. The respondent's corruption was only discovered because On's aunt told the police she had found cannabis in her shed. After she did so, the respondent continued to lie to the Ethical Standards Department and to cover up Mr Johnson's behaviour.
Even if it is accepted that Mr Armstrong did not intend to share in the proceeds of sale of marijuana taken by his co-offender, the respondent acquiesced in Mr Johnson's corrupt behaviour. Having become involved in the events associated with the visit to On's premises, the respondent again acquiesced in Johnson's misuse of authority by helping him to remove the cannabis plants from the Werribee premises. The respondent did not ensure that the cannabis was entered in the police property book but allowed Mr Johnson to use it for whatever purpose he wished. The respondent was superior in rank to his co-offender and could have been expected to provide him with guidance, rather than supporting his criminal activity.
Corruption in those responsible for enforcing the law has significant social consequences. As was discussed by the learned sentencing judge, it may undermine public confidence in the police force, erode the morale of honest police officers and encourage other police to turn a blind eye to similar behaviour. The community is entitled to rely on the integrity of members of the police force in investigating and prosecuting offenders. Mr Armstrong's moral culpability is not reduced because, as counsel for the respondent put it, Mr On and Mr Coombes were not "lily whites" themselves.
The temptation to extort money or abuse power is likely to be considerable when police are dealing with offenders who are reluctant to complain about corruption, because this will reveal that they themselves had committed offences. For this reason corrupt practices in dealing with criminals may be even more insidious than the corruption which affects honest members of the community, who are more likely to report police attempts to extort money from them. Sentences imposed for such offences must reflect public denunciation of the behaviour of the offender and deter other police from committing similar offences. General deterrence must therefore be given significant weight in sentencing a member of the police force for offences involving corruption or extortion.
I acknowledge the strength of the mitigating factors in this case, and in particular the contrition of the respondent, his guilty plea, his willingness to give evidence against Mr Johnson, and his suggestion that he should speak to trainee police about the dangers of becoming involved in corruption. It is a tragedy for the respondent that he has ruined his career by engaging in corrupt behaviour, although I accept that he has good prospects for rehabilitation. Nevertheless, the sentences imposed by his Honour in relation to the three counts of misconduct in public office did not adequately reflect the gravity of the offences and gave too much weight to mitigating factors.
This makes it necessary for the Court to re-exercise the sentencing discretion. If it were not for the limitations imposed by the need to take account of the double jeopardy principle, I would have been inclined to impose a much higher sentence for count 4, which was the most serious of the counts involving misconduct in public office. Having regard to the double jeopardy principle and to the mitigating factors to which I have referred, I would impose a sentence of six months' imprisonment for count 1 and count 5 respectively and a sentence of two years' imprisonment for count 4. The sentences for counts 1 and 5 should be served concurrently with the sentence imposed for count 4.
I would not alter the sentences imposed in respect of the theft counts and the trafficking count, and would order that they also be served concurrently with the sentences imposed for counts 1, 4 and 5. This produces a total effective sentence of two years. The Crown did not oppose partial suspension of that sentence. I would order suspension of one year of the total effective sentence.
VINCENT, J.A.:
I agree that this appeal should be allowed and with the disposition of the matter proposed by Neave, J.A.
KELLAM, A.J.A.:
For the reasons given by Neave, J.A., I agree that the Director's appeal should be allowed and I agree with her Honour's proposed re-sentence.
VINCENT, J.A.:
The orders of the Court are -
The appeal is allowed.
The sentences imposed in the court below are quashed and in lieu thereof the respondent is sentenced as follows:
on count 1: six months' imprisonment;
on count 2: three months' imprisonment
on count 3: six months' imprisonment;
on count 4: two years' imprisonment;
on count 5: six months' imprisonment;
on count 6: one month's imprisonment.
The Court orders that the sentences imposed on each of counts 1, 2, 3, 5 and 6 are to be served concurrently with the sentence imposed on count 4, thus creating a total effective sentence of two years' imprisonment.
The Court orders that the service of one year of that sentence be suspended for an operational period of two years.
The sentence is deemed to have been imposed and the operational period to have begun on 6 November 2006.
It is declared that the period of 115 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that this declaration was made and its details.
The Court otherwise confirms the order made pursuant to s.464ZF(2) of the Crimes Act 1958.The Court grants to the respondent an indemnity certificate pursuant to s.15 of the Appeal Costs Act 1998.
It is necessary, Mr Grace, that your client be informed as to the effect of the suspended sentence in accordance with the legislation. Can we entrust that task to you or your instructing solicitors?
MR GRACE:Yes, certainly, your Honour.
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