DPP v Marks - [2005] VSCA 277

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 287 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS

CHRISTOPHER GERALD MARKS

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JUDGES:	BUCHANAN, EAMES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 November 2005
DATE OF JUDGMENT:	24 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 277	1^st Revision 30 November 2005

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Criminal law - Sentencing - Director's appeal - Misconduct in public office - Possession and use of drug of dependence (ecstasy) - Police officer accessing LEAP computer system at request of known drug dealer - Offender fined but without conviction - Finding that offence an error of judgment not involving moral turpitude - Prosecution concedes that offender unaware that drug dealer was the subject of police operation - Findings of sentencing judge not challenged by notice of appeal - Whether sentence manifestly inadequate - Pleas of guilty - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown (Appellant)	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, Q.C. with Mr A. McKenna	Voitin Walker Davis

BUCHANAN, J.A.:

I will ask Eames, J.A. to deliver the first judgment in this matter.

EAMES, J.A.:

The respondent, who was a senior constable of police stationed at Frankston police station at the time when the offences were committed, pleaded guilty in the County Court to one count of misconduct in public office (count 1); to possession of a drug of dependence, namely, ecstasy (count 3), and, in addition, pleaded guilty to a summary offence brought by information on a count of using a drug of dependence, namely ecstasy. The summary offence was dealt with in the County Court pursuant to s.359AA of the Crimes Act 1958.

On 15 September 2005 a judge of the County Court, without imposing a conviction with respect to any of the three offences, fined the respondent $4,000 on count 1, $300 on count 3 and $50 on the summary offence. The Director of Public Prosecutions appeals by notice against the sentences imposed on all three offences. The sole ground of appeal is that the sentence is manifestly inadequate, as to which ground a range of particulars have been given under a broad contention that in failing to record a conviction, and in sentencing the respondent to payment of fines in the amounts specified, the judge failed to give proper weight to relevant sentencing considerations and gave too much weight to factors in mitigation. The terms of the grounds of appeal are important in this case, and I will return to them.

The offence of misconduct in public office is an offence at common law carrying a maximum penalty of 10 years’ imprisonment. Possession of a drug of dependence contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981 carries a maximum penalty of a fine not exceeding 30 penalty units or one year imprisonment or both. Mrs Quin acknowledged that it was in fact only as to the first count that the appeal was directed.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Marks

Details

AGLC: Director of Public Prosecutions v Marks [2005] VSCA 277
Case: [2005] VSCA 277
Decision Date: 24 November 2005

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on a police officer who was found guilty of misconduct in public office and possession and use of a drug of dependence, specifically ecstasy. The officer had accessed the LEAP computer system at the request of a known drug dealer. The officer was fined but without conviction, and the sentencing judge found that the offence was an error of judgment rather than involving moral turpitude. The prosecution accepted that the officer was unaware that the drug dealer was the subject of a police operation.

The central legal issues for the court to decide were whether the sentence imposed was manifestly inadequate and whether the appeal should be dismissed. The court examined the severity of the misconduct and whether it warranted a more stringent penalty. The court also considered the mitigating factors, such as the officer's lack of awareness of the drug dealer's police status and the fact that the offence did not involve moral turpitude.

The court concluded that the sentence was not manifestly inadequate. The court recognised the gravity of the misconduct in public office but also took into account the mitigating factors and the fact that the officer had pleaded guilty. The court found that the sentence imposed was appropriate and did not result in a manifest injustice. The Director of Public Prosecutions' appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court. The original sentence of a fine without conviction remained in place.

Orders