Jansen v R
[2013] NSWCCA 301
•03 December 2013
Court of Criminal Appeal
New South Wales
Case Title: Jansen v Regina Medium Neutral Citation: [2013] NSWCCA 301 Hearing Date(s): 8/7/2013 Decision Date: 03 December 2013 Before: Basten JA at [1];
Price J at [2];
Campbell J at [3]Decision: (1) Grant leave to appeal.
(2) Appeal dismissed.Catchwords: CRIMINAL LAW - sentence appeal - guilty plea to one count of misconduct in public office - further offences on Form 1 - related offences on s166 Certificate - whether applicant has a justifiable sense of grievance as a result of disparity between his sentence and sentence imposed upon co-offender - whether sentencing judge erred in failing to consider maximum penalties for relevant statutory offences as a reference point or guide to the imposition of sentence - whether sentence manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Police Act 1990 (NSW)Cases Cited: Blackstock v Regina [2013] NSWCCA 172
Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Farrell (unreported) District Court of NSW, 13th February 2013
R v Hokin, Burton and Peisley (1922) 22 SR (NSW) 280
R v Hughes (unreported), District Court of NSW, 28th March 2013
R v Jaturawong [2011] NSWCCA 168
R v Windle [2012] NSWCCA 222
Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381
Thompson-Davis v R [2013] NSWCCA 75
Wong v R [2001] HCA 64; 207 CLR 584Category: Principal judgment Parties: Steve Phillip Jansen (Applicant)
Regina (Crown)Representation - Counsel: Counsel:
P Hamill SC (Applicant)
T Smith (Crown)- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)File Number(s): 2011/84572 Decision Under Appeal - Before: Judge Sides QC - Date of Decision: 05 June 2012 - Court File Number(s): 2011/84572
JUDGMENT
BASTEN JA: I agree, for the reasons given by Campbell J, that the applicant should have leave to appeal against his sentence, but that the appeal should be dismissed.
PRICE J: I agree with Campbell J.
CAMPBELL J: The applicant seeks leave to appeal from the sentence passed on him in the District Court of New South Wales on Friday 5th June 2012 by his Honour Judge Sides QC. The applicant pleaded guilty to one count of misconduct in public office as a member of the New South Wales Police Force. At the applicant's request, six further offences were taken into account on a Form 1 under s.33 Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act). Moreover, there were six related offences on a Certificate under s166 Criminal Procedure Act 1986 (NSW) transferred to the District Court.
For the principal offence, taking into account the six matters on the Form 1, the applicant was sentenced to a non-parole period of two years and an additional term of two and a half years. The sentence was backdated to 13th June 2012 to reflect two days spent in custody after the applicant's arrest. The applicant is first eligible for parole on 12th June 2014. In respect of the six s166 matters, the sentencing judge recorded a conviction without further penalty under s10A Sentencing Act, because the criminality of these matters overlapped with the matters taken into account in the Form 1.
The applicant advances three grounds of appeal as follows:
(1)The applicant has a justifiable sense of grievance as a result of the marked disparity between his sentence and the sentence imposed upon the co-offender, Martin Sheta.
(2)The sentencing judge erred in failing to consider the maximum penalties for relevant statutory offences as a reference point or guide to the imposition of sentence.
(3)The sentence was manifestly excessive.
I will refer to the co-offender as Sheta.
Factual background
The offending the subject of the misconduct in public office charge involved a course of conduct over a period commencing at 3pm on 22nd February 2011, and ending at 4pm on 9th March 2011, when the applicant was arrested.
There are number of different facets to the offending, the most significant of which related to the applicant accessing police intelligence and other sensitive information from police databases.
The applicant undertook this unauthorised access at the request of Sheta, who passed the documents which the applicant had printed to a third party, named Toma, who further disseminated the information.
The misconduct in public office offending covered a course of conduct having nine aspects: three incidents of accessing, printing out, and disseminating highly confidential and sensitive criminal intelligence histories; and six incidents of falsifying computerised timesheets to cover unauthorised absences from his post to attend to matters outside his duty. These six incidents relate to absences on five days. For each of the six absences, he claimed to have been in the field carrying out surveillance. Instead he was engaged as follows:
(a)22nd February 2011 - absent for 2 hours and 30 minutes attending the gym;
(b)24th February - absent to inspect a motorcycle he was considering buying. He then went home without completing his shift;
(c)1st March 2011 - absented himself for 7 hours and 30 minutes at home and the gym. This date also relates to the unauthorised dissemination of information;
(d)2nd March 2011 - absented himself for nearly 5 hours to attend home, the gym and to attend to other leisure activities;
(e)4th March 2011 - absented himself for over 3 hours to attend the gym. This date also relates to the unauthorised dissemination of information. Some time after his return to the police station he departed again for dinner with friends and did not return to duty before the expiration of his shift at 10pm. He falsified his timesheet to cover his movements in respect of the second absence on this day on 9th March 2011, the date also associated with the unauthorised dissemination of information, and the date of his arrest.
For the purpose of assessing the objective seriousness of the applicant's offending, the sentencing judge concentrated upon the aspect of the unauthorised dissemination of information. It needs to be borne in mind in respect of this facet of the offending that it involved a course of misconduct extending beyond the mere provision of information. Sheta was an acquaintance from the applicant's gym. That person solicited the provision of information at the behest of Toma. The course of misconduct involved the applicant disclosing the nature of his work with the police, permitting Sheta to solicit information relating to named individuals, accessing police data at his behest, printing out relevant documents meeting the request, and providing those print-outs to Sheta. Of course, once the print-outs were handed over the applicant had no control over their further use (or, rather, misuse).
There is no suggestion that money changed hands for the provision of the information. But as the sentencing judge pointed out, financial gain is not an element of the offence, even if it may frequently be an incident of it. Where it is, that matter may be an aggravating circumstance. In any event it is notorious that doing a friend a favour may be a most insidious form of corruption.
As some of the information was police intelligence, the provision of the information sought necessarily provided a broad narrative in which a number of offenders, persons of interest and police officers were named, sources identified and the state of police corporate knowledge and belief disclosed.
On 1st March 2011, the offender provided 189 pages of information to Sheta by leaving it on the passenger seat of the latter's ute. Toma removed the material from the ute using keys he had obtained from Sheta.
On 4th March 2011, Sheta provided a name on a slip of paper. The sentencing judge referred to the person named as "an organised crime figure". The applicant accessed the police computer and printed out police intelligence information about this person. After first obtaining the keys from Sheta to his ute, the offender left the material in the vehicle, returning the key to Sheta. Sheta later handed these documents to Toma.
On 6th March 2011, Sheta reminded the applicant that he had not provided all the information previously requested about persons named on the list previously provided. On 9th March, the applicant printed out five ICOPS reports from the computer at the intelligence office at the Parramatta Police Station. Sheta later picked the documents up from the applicant at his home. Again, some documents were handed over to Toma.
All three offenders were arrested on that day.
The additional offences on the Form 1 consisted of forging five medical certificates to be used to cover absences from work and an offence relating to yet another unauthorised absence. The additional criminality involved was required to be taken into account in sentencing for the principal offence.
The offender's subjective circumstances
The sentencing judge rejected the offender's case that he had co-operated with Sheta only because of duress (s21A(3)(d) Sentencing Act). This part of the decision is not challenged on appeal.
The applicant was born on 23rd May 1985 and was 27 years old at the time he was sentenced. He is second in a sibship of four. After his parents separated when he was seven, he was raised solely by his mother and continued to live in her home until he was sentenced. It was necessary for his mother to work to raise her family and his elder sister took on a supervisory role in relation to her younger siblings. The trial judge accepted evidence that when he lived with the family, the applicant's father was a violent alcoholic. His Honour found that the offender had the disadvantage of a dysfunctional upbringing. However, he completed school, being a prefect in his final year, and involved himself in sports when young.
He had a good employment record working part time while still at school and in a variety of jobs after leaving, before joining the army, where he did not fit in and left after only eighteen days. He then joined the police force, despite his mother advising him against it. The sentencing judge found that he was "not a person with a personality suited to the role of a police officer either" (ROS page 7). As he was unsuitable he had difficulty in this service, including in his interactions with other officers. He sought changes in his role in an attempt to continue with the police, ultimately working in intelligence, rather than directly in the field on general duties.
When he resigned on 29th September 2011 - after his arrest - the applicant was successful in finding work in Local Government in a labouring capacity. He appears to have been well thought of by his new employer and obtained promotion to work as "a safety advocate".
There is no evidence of substance abuse or financial problems. As I have already pointed out, money was not a motivating factor in the offending.
The sentencing judge said he was extending to the applicant the benefit of his prior good character, but observed that as good character was an essential attribute of a police officer it had provided the offender with the opportunity to offend. The sentencing judge referred to significant stressful events in the applicant's life and found on the evidence that the offender suffered from a constellation of depressive and post-traumatic stress symptoms. His Honour accepted that aspects of the applicant's personality made policing an unsuitable vocation for him. However, the sentencing judge found that neither his personality difficulties nor his mental health issues in this case reduced the moral culpability of his offending.
The sentencing judge accepted, however, that concerns about his mother's health, his own personality type, and his prior service as a police officer would render the offender vulnerable in jail, and his first time in custody, by reason of these matters, would be more burdensome than otherwise.
His Honour accepted that the applicant's prospects of rehabilitation, and not re-offending, "are very good". He allowed the applicant a 25% discount for his early plea of guilty.
Reasons for sentence
The sentencing judge was clearly aware that the applicant's "criminality" in relation to the offence was not limited to the release of confidential information on three occasions, but extended to the other acts including those involving him creating a false record of his activities to mask him absenting himself from duty. Of the former, his Honour found that whilst the offender was not the instigator, the misconduct was clearly premeditated, involving the offender knowingly "enmeshing himself in organised criminal activity... putting the safety of others at risk" (ROS 16). The sentencing judge said:
Inherent in an offence like this is a breach of trust. He released a relatively large volume of sensitive police intelligence. The risk to public safety was significant. There is evidence that the safety of members of the public as well as [of] one police officer and her family were jeopardised. Activity like this has the potential to compromise police investigations and prosecutions and disclosing police methods to the criminal milieu.
His offending involved more than one act. He had no control over the documents once they were handed over to his co-offender Sheta. They could be copied many times over. The form in which they appeared would give them authenticity. This type of offending is much more serious than a case where somebody provides information from a computer database over the telephone or orally. As the Court understands it, only the material he handed over to his co-offender on 9 March has been recovered by the police.
...
Offences like this have a real potential to undermine public confidence in the police's ability to maintain confidentiality in relation to information supplied by members of the public. The flow-on of such lack of confidence will be a reduction in the flow of information to the Police Force from the public. In the Court's view this is a very serious example of an offence of this type.
Although the Offender said he was remorseful, he made concerted efforts to minimise his criminality by claiming he acted under duress. In the circumstances the Court is not persuaded that this is a case where the Offender is genuinely remorseful.
His Honour referred to, but as I read his reasons, did not make a discount on the sentence for, the applicant's rejected offers of assistance, as his Honour decided, for the cogent reasons he gave, they were not of any great value.
On the important issue of parity of sentencing, his Honour noted that as Sheta had then yet to be dealt with for the charges against him "no issue of parity arises" (ROS 18). Toma had received a small fine and a bond under s.9 of the Sentencing Act of two years. The finding that "no issue of parity arises" in respect of Toma is not challenged on appeal.
His Honour made passing reference to other cases to which he had been referred by the Crown, which he did not name, but which he understood as indicating that the notional maximum penalty for the common law offence of misconduct in public office in Victoria was imprisonment for ten years. He did not find the cases sufficiently like the instant case to be of assistance. His own researches uncovered R v Jaturawong [2011] NSWCCA 168. Again, his Honour did not find that case helpful because it is very different factually.
The sentencing judge decided that no sentence other than "a significant sentence of imprisonment was called for" (ROS 19), but found the absence of a prior custodial sentence constituted special circumstances.
The sentence passed on Martin Sheta
For the purpose of determining the parity ground of appeal, it is necessary to consider the sentence passed on Sheta by his Honour Judge Nicholson QC on 23rd August 2012, after the applicant had been sentenced.
Sheta was charged with three counts of making a collusive agreement with a member of the New South Wales Police Force for the purpose of inducing him to neglect his duty by supplying confidential information, contrary to s.200 Police Act 1990 (NSW). These three charges were the counter point of the three incidents of the applicant's unauthorised dissemination of confidential information forming part of the conduct giving rise to the single charge of misconduct in public office.
Sheta pleaded not guilty, and at his trial on 3rd June 2011 the jury acquitted him of the charge relating to 1st March, but convicted him of the charges relating to the unauthorised dissemination of information by the applicant on the 4th and 9th of March 2011. It will be recalled that the alleged offence of 1st March 2011 related to the supply by the offender to Sheta of 189 pages of police intelligence information.
For the first of the offences of which he had been convicted, Sheta was sentenced to a term of imprisonment, having a non-parole period of 6 months and an additional term of 6 months. For the second he was sentenced to a term of imprisonment with a non-parole period of 6 months, and an additional term of 12 months. Each sentence was to be served concurrently.
In assessing the objective criminality of Sheta's offending, Judge Nicholson referred to the sentencing judge's observations concerning the potential of offending of this type to undermine public confidence in the police and the performance of their important work. Judge Nicholson also found that the relevant criminal conduct sought to undermine the capacity of the police to do their job and involved corruption of a serving member of the police force even if money had not changed hands. It constituted an attack upon "a proper administration of criminal justice". His Honour also bore in mind that the evidence before him did not enable him to adjudge how widely the information had been disseminated or the extent to which it might compromise the willingness of informants or members of the community to further assist police. His Honour did find that the offending involved "a monumental invasion of privacy" of persons named in the material, being those under suspicion, and those who provided information, alike.
His Honour took a different view of the significance of the allegation of threats made against the police inspector named in the documents who had received information from varying sources about a person under suspicion. Judge Nicholson did not rate this consideration as seriously as Judge Sides. He accepted the genuineness of the Police Inspector's concern but "given the absolute rule against the admissibility of second hand hearsay" he was not prepared to find as a fact that the threats actually had been made. He did accept that the Police Inspector made changes to her daily life given the genuineness of her belief.
He found that Sheta was a facilitator as well as a conduit. The gravamen of his offending was to induce the applicant to abuse his public trust, which his Honour regarded as "really an element of the offence". Judge Nicholson found that Sheta was aware that his conduct was illegal.
Turning to Sheta's subjective circumstances, the Judge found that he was born in 1981 and was therefore 29 years of age at the time of the offending and 30 at the time he was sentenced. He was born in Iraq but left that troubled country at the age of twelve, eventually arriving in Australia when he was fourteen with his family, who were, and remained, in difficult financial circumstances.
Sheta received very little schooling, either in his native Iraq or here. The Judge rejected his claims of being "functionally illiterate", proceeding on the basis that the Jury accepted sufficient reading skills to send SMS messages, hold a drivers license and read traffic signals.
Sheta had a poor industrial record and no work skills. Judge Nicholson found that Sheta was not contrite. His Honour said "there was nothing in the evidence before me to suggest he would not do the same thing again if asked to do so by [Toma]". There have been previous offences for property damage, assault and affray. And the Judge felt unable to make a positive finding in relation to prospects of rehabilitation.
Judge Nicholson took the view that "parity [was] not required". So far as can be told, this is because his Honour was of the view that "the offence calendar to which [the applicant] pleaded guilty is substantially different to the charges before this Court". His Honour noticed the more extensive misconduct constituting the applicant's offending, and Sheta's acquittal of the first count.
Ground 1 - parity
Mr PJD Hamill SC, who appeared for the applicant, argued that notwithstanding the differences between them, for the purpose of the parity principle, the applicant and Sheta were co-offenders and the former should be taken to be entitled to the requisite, objectively determined and justifiable sense of grievance arising from the disparity in the sentences passed upon them. If anything, given Sheta initiated the criminal conduct and the applicant's more favourable subjective case, one might have expected the latter would be favoured by the less severe sentence. In these circumstances, the differences were "extraordinary".
The Crown accepted correctly that the parity principle could apply in cases where co-offenders were not charged with or convicted of the same offence. The Crown reminded the Court of the difficulties that can arise "in comparing the sentences of participants in the same criminal enterprise, who had been charged with different crimes", especially "where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of [the applicant]": Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [30]. The Crown acknowledged that practical difficulties and limitations "do not exclude the operation of the parity principle". Rather, the Crown emphasised the following aspects of the case demonstrating relevant differences in their offending:
(i)The serious breach of trust by a serving police officer;
(ii)The differences in the content of the offending, including the consideration that Sheta had been acquitted of the unauthorised dissemination of information on the 1st of March 2009, involving the supply of five profiles of allegedly serious offenders, totalling 189 pages; and
(iii)The false completion of timesheets, which, the sentencing judge found, had the potential to adversely affect investigations and prosecutions; and
(iv)The matters on the Form 1 related to the forging of medical certificates to justify unauthorised absences from duty, which had to be taken into account in dealing with the offender for the principal offence.
In my judgment, the Crown arguments are to be preferred. At the same time I acknowledge that the parity principle is founded upon something fundamental i.e. the principle of equal justice according to law, "an aspect of the rule of law" itself (Green at [28]). But as French CJ, Crennan and Kiefel JJ observed, that fundamental principle not only expects:
...so far as the law permits, that like cases be treated alike.
But also,
Equal justice according to law ... requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law.
Notwithstanding the force of Mr. Hamill's argument about the applicant's superior subjective case, the Crown correctly points out that the nature and extent of the applicant's misconduct constituting his offence justified a stern sentence. This relates to the essential role the police play in our society in investigating crime and enforcing the law. Abuse of that office, as Judge Sides, with respect, fully appreciated, has the potential to endanger public safety, undermine public confidence in the police, and ultimately interfere with the administration of justice.
As the plurality in Green also said, at [31]:
The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise [emphasis added].
The matters referred to by the Crown, to my mind, are relevant differences in this context which can be characterised as differences in the part played by each in the relevant criminal conduct, including the extent of the conduct comprising their offending. Clearly, there is a significant difference between the sentences passed. I do not regard the difference as constituting "marked and unjustified disparity" (Green at [33]). It could well be said that Sheta was treated leniently. But the difference in the nature, quality and extent of the applicant's offending fully justify the sentence passed on him. I am not of the view that parity, or proportionality, between sentences passed on offenders engaged in a hierarchy of criminal conduct, obliges the Court to reduce the applicant's sentence to a level which would be otherwise inadequate, or at all. I would reject Ground 1.
Ground 2
The gravamen of Mr. Hamill's argument in relation to the second ground is that although the learned sentencing judge referred to Jaturawong v R, his Honour failed to have regard to available statutory analogues as providing a reference point for the imposition of penalty (see Jaturawong at [5]). Learned senior counsel referred to eight statutory offences, which he submitted provide relevant analogies. To the extent to which these legislative provisions fixed a maximum penalty of imprisonment, they ranged between three and ten years. Senior counsel pointed out that the offence with which Sheta had been charged carried a maximum penalty of imprisonment for seven years. It was submitted that given the 25 per cent discount for the applicant's plea of guilty, his Honour's starting point must have been about six years, very close to the analogous maximum of seven years. It was argued that the present offending could not be regarded as being that close to the worst possible category of misconduct in public office.
The Crown emphasised that any applicable statutory analogue is simply a reference point. The Crown pointed out "there is no limit on the power of imprisonment which can be imposed on a person convicted of a common law offence" (Crown submissions page 5 [17]). The Crown also emphasised that "the current offence was an overarching offence" covering a range of misconduct over a period of time. On this basis it would be wrong to confine a court's sentencing discretion to the maximum penalty for a single incident of offending provided for by statute for an offence similar to part only of the subject offending. The sentencing judge's failure to refer to any statutory analogue did not fall into "error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499".
In Blackstock v Regina [2013] NSWCCA 172, a sentence appeal involving misconduct in public office consisting of the receipt of large secret commissions over a number of years, I said (with the agreement of Macfarlan JA and Barr AJ) referring to R v Hokin, Burton and Peisley (1922) 22 SR (NSW) 280 at 292 (at [10] - [11]):
[10] I do not understand R v Hokin to establish a rule that the sentence imposed for the common law offence cannot, as a matter of law, exceed the maximum imposed for the statutory analogue. In delivering the judgment of the Court, Gordon J said at 291-2:
It was contended that on a conviction for a common law misdemeanour the Court could not impose a sentence as in this case of five years and four years imprisonment. In my opinion that contention is untenable. In R. v. White (13 S.C.R. p. 338) ... it was stated by Faucett J, expressing the view of all the members of the Court, that there was no limit in law to the term of imprisonment which might be imposed on a person convicted of a common law misdemeanour. As a rule undoubtedly the practice of the Court (where the misdemeanour charged is an "attempt" to commit a statutory offence) is not to impose a greater punishment than that imposed by Statute for the complete offence. .... Here, no doubt, in one sense the offence charged as a common law misdemeanour was a conspiracy to commit perjury and by so doing to defeat justice. The penalty provided by statute for perjury is by s. 327 of the Crimes Act a maximum of seven years penal servitude or a maximum of two years imprisonment with hard labour. An increased penalty is provided by s. 328 which does not apply to this case. In my opinion there is in law no such limit as that contended for on the term of imprisonment which the Court can impose on a person convicted on indictment of a common law misdemeanour. If this had been a case of a person convicted of an attempt to commit an offence for which the punishment is prescribed by Statute, I should have been prepared to hold that the Court ought not to impose a heavier punishment than that prescribed by Statute for the completed offence. In this case, however, I do not think that rule applies. Here the accused were convicted of a conspiracy to defeat the ends of justice by committing perjury and incidentally branding as a common prostitute a girl who was in fact not such an abandoned character. ... This is, I think, a matter of discretion to be used in each case according to its circumstances. The presiding Judge sentenced Hokin, the principal offender, to a term of imprisonment for five years, and each of the other two appellants to a term of imprisonment for four years. While in no way suggesting that such sentence was illegal, I think that in view of the youth of the accused and in view of the maximum term of imprisonment imposed by law for perjury the sentence ought to be reduced in the case of Hokin to three years imprisonment, and in the case of Burton and Peisley to two years imprisonment in each case with hard labour, such sentences to commence as from the date of conviction [emphasis in the original].
[11] I have set out this whole passage because, in my view, a consideration of it demonstrates that the statutory analogue provides no more than a reference point which does not fetter the discretion, which remains at large. The result and the reasoning in R. v. Hokin illustrate this. This will have relevance to the disposition of this case. Although the Court found the sentences imposed excessive, on re-sentencing the offenders the Court took into account the maximum term of imprisonment imposed by the statutory analogue, but sentenced the main offender to a term of imprisonment which exceeded the statutory maximum by 50 per cent. In the case of each of the two lesser offenders, terms of imprisonment equal to the statutory maximum were imposed. It is also worth observing that the Court approved the statement in White that "there was no limit in law to the term of imprisonment which might be imposed on the person convicted of a common law misdemeanour" (emphasis added).
The position established by R v Hokin, Burton and Peisley at 292 therefore is that as a matter of discretion, one may have regard to "the maximum term of imprisonment imposed by law" for an analogous statutory offence. But the court's power is not limited by any available statutory analogue. This is evidently why Beazley JA in Jaturawong at [6]-[7] used the phrase "a reference point".
It is true that the learned sentencing judge did not refer to the reasoning in Jaturawong, which decision his own researches uncovered, for this purpose. Doubtless that is because neither Crown nor defence counsel (who did not appear on appeal) referred him to the passage. Neither was he referred to any statutory provisions said to be relevant. In these circumstances, and as there is no clear analogy to stand as a reference point adequately covering the whole course of the misconduct in which the applicant engaged, I am not satisfied that Judge Sides fell into error in this regard. I would reject the second ground of appeal.
Ground 3
Learned senior counsel argued that the sentence passed on the offender was manifestly excessive. Three "particulars" were provided to support this argument. First, the applicant was suffering from a depressive illness and post-traumatic stress at the time of the offence. Secondly, the seven year maximum for offences under s.200 of the Police Act. And thirdly, as it is the offender's first time in custody, his imprisonment would be more onerous compared with the experience of the average inmate. Reference was also made to what were said to be two comparable cases: R v Hughes (unreported) District Court of NSW, 28th March 2013; and R v Farrell (unreported) District Court of NSW, 13th February 2013.
The Crown argued that to make good this ground, the offender had to positively show that the sentence passed was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]. It was not sufficient for the Court of Criminal Appeal to substitute its own opinion for that of the sentencing judge because of a mere difference of opinion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15].
The Crown emphasised the objective seriousness of the offending as determined by the sentencing judge, the considerations set out at [24] above, and the significance of general deterrence and denunciation in cases of misconduct in public office. The Court was also reminded that consistency of approach does not demand numerical equivalence: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59] - [60].
In approaching this question, I will bear in mind the settled principles which I summarised in Thompson-Davis v R [2013] NSWCCA 75 at [53].
The defendant's argument is undermined somewhat in that what I identify as the second particular is a repetition of Ground 2, which I would reject. Particular 3 was acknowledged by the sentencing judge and indeed formed the basis of the finding of special circumstances which worked in favour of the offender by altering the statutory ratio so as to reduce the minimum time the applicant must serve in prison for his offending.
As I have stated above, the trial judge was cognisant of the offender's mental condition, accepting the evidence of Dr Allnut at least to that extent. It is true that his Honour found that in the circumstances of the present case, the medical condition (if his symptoms justified that description) actually suffered by the applicant did not serve to reduce his moral culpability. Such a finding was open as it was not shown that mental symptoms of the nature and degree suffered by the offender affected his decision-making capacity in such a manner as to diminish "the importance of key elements of the sentencing exercise" such as moral culpability and general deterrence: R v Windle [2012] NSWCCA 222 at [41] per Basten JA. A consideration of these three matters relied upon by Mr Hamill, either together or individually, in my opinion, does not disclose relevant latent error.
It may be doubted that subsequent sentences in other cases which differ from the sentence under appeal are capable of demonstrating error. But as learned senior counsel relied on them for that purpose I will attempt to deal with them. In R v Hughes a former police officer pleaded guilty to two counts of misconduct in public office and two counts of knowingly giving false evidence before the Police Integrity Commission. In relation to the false evidence charges, concurrent terms of imprisonment, each of six months, were imposed. For the first misconduct in public office offence, consisting of failing to report admissions made by persons involved in stealing a car, a fixed term of seven months was imposed accumulated on the prior sentences by two months. In relation to the second misconduct in public office offence, consisting of accessing the COPS data base to provide information orally to the persons involved in stealing the car about the police investigation into that matter, a sentence of imprisonment having a non-parole period of nine months and an additional term also of nine months was imposed. The criminality covered by that sentence included creating a false entry in the COPS system to cover her tracks. There was an accumulation on the previous sentence of one month so that the total effective non-parole period was one of twelve months, with an additional term of nine months.
The offender was a junior police officer who committed the offences to help her then boyfriend. The sentencing judge found that the offender had deliberately lied in her evidence on the proceedings on sentence; that she knew the information she had obtained from the COPS data base would be passed onto criminal elements; and that she was fully aware of the seriousness of the criminality of her misconduct. She had a history of mental illness going back to her teenage years involving self-harm, for which she had received medical treatment. The sentencing judge did not give the mental health problems significant weight. He regarded the offences as "extremely serious". In fact he regarded the objective seriousness as being in the upper range. In determining the length of the sentence, his Honour took into account the offender's subjective case including her mental health history (to some extent), the early plea of guilty and her prior good character. The offender was 22 at the date of the offending.
On one view, the sentence may look lenient when compared with the sentence in the present case. On the other hand, the two counts of misconduct in public office related to the circumstances of a single day. Whilst investigation may have been prejudiced, the matter did not have the same potential for widespread publication of information relating to a large number of persons. No documents were distributed. Moreover, and, in my view significantly, the offending, although described by the sentencing judge in strong language like that used by Judge Sides in the present case, did not range over a comparatively lengthy period like the present case, nor did it have the multiple facets that the present offending exhibited.
In Farrell a long serving police officer entered a late plea of guilty to the offence of misconduct in public office. He requested that seven other offences, each carrying a maximum penalty of two years imprisonment, be taken into account on a Form 1. The gravamen of the principal offence was agreeing to provide police intelligence orally to a businessman who was a close personal friend. The context appears to have been the businessman's alleged involvement in the supply of restricted performance enhancing substances, which the police officer used. The businessman had been under police suspicion and lawful surveillance. After an incident in which the businessman's vehicle was stopped and inspected by police, he complained to the police officer, who then accessed the police database. The trial judge was satisfied that the results of the offender's search of the police database were passed on to the businessman, albeit using a telephone line which was not subject to authorised surveillance. Five of the Form 1 offences related to instances of the supply of police information to other persons, some of it unsolicited, and two charges of possessing prescribed restricted performance enhancing substances.
The sentencing judge gave a small discount for the late plea, discounted the offender's prior good character because of the nature of the offending, but otherwise accepted his strong subjective case. Central to the subjective case was evidence that the 40 year old officer, apparently of previously unblemished record, "went through a period in [his] life where [he] literally.... ran out of control, that [he was] doing things and saying things which were not characteristic of [his] previous life". He was sentenced to a non-parole period of twelve months with an additional term of twelve months.
Again, in my view, with respect, the similarities are superficial. The offence of misconduct in public office, as is so often said of other offences, is by its nature protean, covering a very wide field of offending. As Sir Anthony Mason NPJ pointed out in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, at 817 [84] - 818 [86], it covers a very wide range of "serious misconduct ... determined [by] having regard to the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities". Again, as with other offences, it is not helpful to attempt to break it up into artificial sub-categories such as the unauthorised dissemination of sensitive police information by serving police officers, simply because the particular circumstances of a given offence, and a given offender, are likely to vary enormously.
Moreover, two cases only, said to be alike because they fall into a putative sub-category, are not capable of providing useful material that may establish a pattern, even if the categorisation is valid, because the data they supply is completely insufficient for that purpose. Even were it otherwise, past sentences do not establish the correct range: Director of Public Prosecutions (Commonwealth) v De La Rosa at 98 [303] - [305] per Simpson J, approved in Hili at 537 [54]. Consistency of approach does not call for numerical equivalence. Even marked differences from sentences imposed in other cases does not of itself justify appellate intervention: Wong v R [2001] HCA 64; 207 CLR 584 at 604 [58].
A consideration of the reasons for sentence in each of Hughes and Farrell demonstrates that the approach adopted by each of the sentencing judges to the sentencing task, including the assessment of the objective seriousness of the offending, was substantially the same as in the present case. That there are differences in outcome is demonstrative only of differences in the facts, matters and circumstances relevant to sentencing in each case.
I would reject Ground 3.
I am not of the opinion that some other sentence in law is warranted for this offending and this offender.
The orders I propose are:
(1)Grant leave to appeal; and
(2)Appeal dismissed.
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