R v Buckskin

Case [2010] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BUCKSKIN

[2010] SASC 138

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Kourakis)

12 May 2010

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence - defendant and appellant pleaded guilty to two counts of abuse of public office contrary to section 251 of the Criminal Law Consolidation Act 1935 (SA) - at time of offending defendant was a police officer - defendant sentenced to a term of imprisonment of two years and nine months - non-parole period of 12 months fixed - sentence not suspended - whether Judge erred in failing to suspend sentence - whether Judge had inadequate regard to witness statements provided - whether Judge gave undue weight to lack of contrition - whether Judge inappropriately took into account uncharged acts - whether Judge failed to give sufficient weight to fact that defendant obtained no pecuniary benefit from offending - whether Judge gave insufficient weight to defendant’s cooperation with the authorities - whether Judge impermissibly considered question of suspension before determining appropriate sentence - whether Judge gave inadequate consideration to effect of imprisonment on defendant’s dependants - consideration of gravity of offending in abuse of public office.

Held: appeal dismissed - the matters complained of were appropriately considered by the Judge - gravity of offending warranted sentence imposed - no justification for suspension disclosed - sentence imposed appropriate.

Criminal Law Consolidation Act 1935 (SA) s 251 and s 352; Criminal Law (Sentencing) Act 1988 (SA) s 6, s 9, s 10, s 11 and s 38; Sentencing Act 1995 (WA) s 76; Family Law Act 1975 (Cth) s 60CA, referred to.
R v Many (1990) 51 A Crim R 54; Dinsdale v The Queen (2000) 202 CLR 321; House v The King (1936) 55 CLR 499, discussed.
R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60; R v Carpentieri (2001) 81 SASR 164; R v Wirth (1976) 14 SASR 291; Bates v Police (1997) 70 SASR 66; Neill v Police [1999] SASC 270; R v Hinton (2002) 134 A Crim R 286; R v Penno (2004) 236 LSJS 457; R v Nath (1994) 74 A Crim R 115; R v Olbrich (1999) 199 CLR 270; R v Reiner (1974) 8 SASR 102; Wood v Samuels (1974) 8 SASR 465; R v O’Keefe [1969] 2 QB 29; Lander v Police (2002) 131 A Crim R 59; R v Spong (2008) 100 SASR 55; R v Stubberfield [2005] SASC 383; R v Wilton (1981) 28 SASR 362; R v Palliaer (1983) 35 SASR 569; Tame v Fingleton (1974)…

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AGLC
R v Buckskin [2010] SASC 138
Case
[2010] SASC 138
Decision Date

CaseChat Overview and Summary

The matter of R v Buckskin is an appeal against a sentence imposed on Debra Lee Buckskin, a former police officer who pleaded guilty to two counts of abuse of public office under section 251 of the Criminal Law Consolidation Act 1935 (SA). Buckskin was sentenced to a term of imprisonment of two years and nine months with a non-parole period of 12 months, and she appealed against this sentence on various grounds, including the judge's failure to suspend the sentence and the alleged inadequate consideration of certain factors. The appeal also questioned whether the judge gave undue weight to the lack of contrition, took into account uncharged acts, failed to give sufficient weight to Buckskin's cooperation with authorities, and gave insufficient consideration to the effect of imprisonment on her dependants. The key legal issues before the court were whether the sentencing judge erred in failing to suspend the sentence and whether there were any other errors in the exercise of the sentencing discretion.

The court considered that the appellant's conduct was a serious abuse of her position as a police officer, jeopardising the security of information provided to the police and potentially undermining public confidence. The court held that the sentence imposed was not excessive, and the decision not to suspend the sentence was not unreasonable. The court rejected the contention that the judge failed to read the witness statements provided by Buckskin and her children against her estranged husband, finding that these details did not affect the relative weight of the sentencing considerations. The court also dismissed the argument that the judge failed to appreciate the appellant's psychological dependency on the man to whom she provided the information, noting that this connection was not supported by the psychiatric report. The court concluded that the alleged errors in the exercise of the sentencing discretion had not been made out and dismissed the appeal.

The final orders of the court were to dismiss the appeal against Buckskin's sentence, affirming that the sentence imposed was appropriate and not affected by any errors in the exercise of the sentencing discretion. The court held that the judge's consideration of the case was thorough and that the sentence reflected the gravity of the offending and the need to maintain public confidence in the police force. The court's decision underscored the importance of upholding the integrity of public office and the serious consequences of abusing such positions.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence. Background The defendant and appellant, Debra Lee Buckskin, was charged with four counts of abuse of public office contrary to the provisions of section 251 of the Criminal Law Consolidation Act 1935 (SA).[1] The maximum penalty prescribed by section 251 is imprisonment for seven years. At all relevant times the defendant was a sworn police officer. On 21 October 2009, the defendant pleaded guilty to two counts on the information, following which the Director of Public Prosecutions entered a nolle prosequi to the remaining two counts. [1] Section 251 of the Criminal Law Consolidation Act 1935 (SA) provides:(1)A public officer who improperly—(a)exercises power or influence that the public officer has by virtue of his or her public office; or(b) refuses or fails to discharge or perform an official duty or function; or(c) uses information that the public officer has gained by virtue of his or her public office,with the intention of—(d) securing a benefit for himself or herself or for another person; or(e) causing injury or detriment to another person,is guilty of an offence.Penalty: Imprisonment for 7 years.(2)A former public officer who improperly uses information that he or she gained by virtue of his or her public office with the intention of—(a) securing a benefit for himself or herself or for another person; or(b) causing injury or detriment to another person,is guilty of an offence.Penalty: Imprisonment for 7 years. On 12 March 2006, Chad Tassone was involved in an incident which occurred outside the Rise Night Club in Adelaide. The incident was reported to the police by a member of the public. A police incident report was generated as a result and police action followed. The incident report recorded that the man suspected of assaulting Tassone was an office bearer of a motorcycle gang and police suspected witnesses were reluctant to cooperate because of motorcycle gang involvement. On 12 July 2006 the defendant accessed the police incident report on the SAPOL computer system, printed the document and provided Tassone with the name and address of a witness. According to the police incident report, Tassone then informed police he wanted no action because the person responsible for the assault was an outlaw motorcycle gang member. By 18 September 2006, police from the Anti Corruption Branch of SAPOL had obtained warrants in order to listen to and record telephone calls made from Tassone’s mobile telephone, as well as the defendant’s mobile and landline telephones. On 18 September 2006 a series of telephone calls were intercepted by police. Tassone was intercepted contacting the defendant and requesting her to ascertain the ownership details of two motor vehicle registration numbers. The defendant performed the requested checks and telephoned Tassone with the information. In a subsequent telephone call, Tassone requested further information about the owners. The defendant then contacted another police officer, not involved in any of these matters, with a request to carry out further checks. The other officer did so believing that the checks were being made for a legitimate purpose. The identities of the registered motor vehicle owners and details of the occupation of one of the owners were ultimately passed on to a third party by Tassone.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS J
In these circumstances no justification for suspension has been disclosed and the sentence imposed by the sentencing Judge was appropriate.Conclusion We would dismiss the appeal. The appellant pled guilty to two counts of abuse of public office.[18] She was sentenced to two years and nine months imprisonment with a non-parole period of 12 months. She now appeals against that sentence.[18] Criminal Law Consolidation Act 1935 s 251. The appellant, when a serving police officer, gave confidential police information to a criminal involved in the drug trade. That conduct was a serious abuse of the important office she held as a member of South Australia Police. The appellant’s conduct jeopardised the persons whose identities she disclosed, even though, fortunately, it turned out that they were not harmed. Perhaps of greater concern is the insidious effect of offending of this nature. It is likely to undermine the public’s confidence in the security of information provided to the police about serious criminal offences and for that reason restrict the flow of information which is necessary for the prevention and detection of crime. In light of the objective seriousness of the appellant’s offending, the term of imprisonment imposed on her is plainly enough not excessive and no such complaint is made. Nor is it arguable that the decision not to so suspend was, in itself, unreasonable. However, the appellant contends that the decision not to suspend the sentence is affected by express errors. In my view, the alleged errors in the exercise of the sentencing discretion have not been made out. I now summarise my reasons, which are further explicated below, for so holding. The failure of the Judge to read the witness statements made by the appellant and her children against her estranged husband in support of her complaints of assault and rape was not an error which vitiated the sentencing discretion. The Judge accepted that the appellant was a victim of a long and violent domestic relationship. The nature of the relationship and the offences committed against the appellant were summarised in a psychiatric report which the Judge received and in the sentencing submissions. The expatiation of that offending contained in the statements could not affect the relative weight of the competing sentencing considerations in the circumstances of this particular case. The details in the statements were therefore not a relevant factor which the Judge was bound to consider and therefore the failure to read the statements did not constitute an error in the exercise of the sentencing discretion. The appellant also contends that the Judge failed to appreciate that the appellant’s offending resulted from a psychological dependency on the man, Tassone, to whom she provided the information. The connection between the offending and the appellant’s psychological condition was not put to the Judge in that way and is in any event not supported by the psychiatric report on which the appellant relies.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS J

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