R v Bunning
[2007] VSCA 205
•27 September 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 338 of 2006
| THE QUEEN |
| v |
| MATHEW JAMES BUNNING |
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JUDGES: | MAXWELL P, KELLAM JA and WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 September 2007 | |
DATE OF JUDGMENT: | 27 September 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 205 | 2nd Revision 30 June 2008, para [54] |
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Criminal law – Sentencing – Misconduct in public office – Theft – Police officer accessing LEAP and PIMS computer systems to provide information to known drug dealer – Sentencing judge not advised of agreed facts upon which pleas of guilty entered – Appeal allowed – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr L C Carter | Robert Stary & Associates |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of Kellam JA. I agree with his Honour’s reasons and with the proposed re-sentencing.
KELLAM JA:
Background to the appeal
The appellant pleaded guilty at the County Court in Melbourne to ten counts of misconduct in public office, two counts of theft and one count of possession of a drug of dependence. On 23 October 2006 the appellant was sentenced to a total effective sentence of six years and ten months’ imprisonment with a minimum of three years’ imprisonment to be served before becoming eligible for parole. The appellant brings this appeal on a number of grounds.
It is not necessary to deal with all of the grounds of appeal as the prosecution concedes that an error which vitiates the exercise of the sentencing discretion has occurred. It is appropriate to refer briefly, however, to a number of the grounds of appeal and to the nature of the error which occurred in this case. Ground 2 of the appeal is that the sentencing judge erred by having regard to unproven allegations which went beyond the circumstances of the offences to which the appellant had pleaded guilty and beyond the agreed statement of facts tendered by the Crown prosecutor. Ground 3 of the appeal is that in the alternative to ground 2, the sentencing judge erred by treating as aggravating matters facts that were not established beyond reasonable doubt. Ground 4 is that in the alternative to ground 2, the sentencing judge erred by denying the appellant procedural fairness. The gravamen of the appellant’s complaint reflected in these grounds is that the judge made findings of fact against the appellant which findings formed the basis for the sentences imposed, and did so by trespassing impermissibly into factual areas beyond the boundaries created by an agreed statement of facts. The prosecution concedes that that complaint is justified.
The circumstances under which the error occurred are as follows. Prior to the hearing of the plea the sentencing judge was provided with the depositions and other materials which contained three statements made by a police informer, who has been referred to as ‘L’ throughout the proceedings. In March of 2006 L had undertaken to give evidence against the appellant in accordance with those statements. Early on the first day of the hearing of the plea the prosecutor informed the sentencing judge that he had prepared a ‘typed opening’. He said that there had been ‘some discussions’ with counsel who was then appearing for the appellant and that he proposed to tender a copy of the ‘Crown opening’ to reflect those discussions when it was re-typed. The next day the prosecution’s opening address on the plea was tendered as an exhibit.
It is conceded by the prosecution that the document referred to as the Crown opening was an agreed statement of facts. It is conceded by the prosecution that it had been agreed between the parties that a number of the matters referred to in the statements of L could not be proved beyond reasonable doubt and that after negotiation the so-called ‘Crown opening’ was amended to reflect that circumstance. It was not pointed out to her Honour that the Crown opening was in fact an agreed statement of facts, nor was it made clear to her that express agreement had been reached that certain statements made by L were incapable of proof beyond reasonable doubt.
It is regrettable that the nature of the agreement reached between the prosecution and the defence was not pointed out to her Honour clearly. As stated by Cox J in R v Pettingil[1]:
… the use of agreed statements needs to be handled with care. With sworn evidence in the sentencing court there will be no problem. Where it is a matter of oral or written statements to which the other side agrees, the effect that those statements are intended to have on the evidence in the committal depositions that were sworn to by the witnesses should be explained to the Court with precision.
In R v Halden[2] Murphy J said:
When a plea is made, it is in my opinion incumbent upon counsel for the prisoner to take objection to such parts of the material which counsel knows to be before the learned sentencing judge, as he submits are inadmissible against his client. A ruling may then be made, and further evidence may or may not be called.
[1](1985) 21 A Crim R 130 at 133.
[2](1983) 9 A Crim R 30 at 40.
The failure of counsel for the prosecution and for the defence to make the situation clear to her Honour has resulted in the circumstance that grounds 2, 3 and 4 of the grounds of appeal are conceded by the respondent. In all the circumstances that concession is a proper one and it now falls upon this Court to re-sentence the appellant. It is necessary to set out something of the background facts.
Background facts
The appellant was a member of the Victoria Police Force from 1989 until his resignation in November 2005. He became a detective in 1996 and was stationed at the former Drug Squad from November of that year until December of 2002. In January 2003 he was transferred to the Prison Squad. During the time that the appellant was a member of the Drug Squad, L had been arrested and charged with trafficking heroin. Shortly after her arrest L agreed to become a registered police informer. In early 2002 the appellant came into contact with L in her capacity as an informer and in the course of his official duties with the drug squad. At that time he was assigned to a crew led by Detective Sergeant Fryer. The prosecution case is that L, whilst assisting police as a registered informer, continued to traffic in drugs. The appellant and L entered into a corrupt relationship whereby the appellant gave L confidential information in relation to the existence of police investigations of L and her associates, surveillance upon her and her house, and interception of her telephones. At all material times the appellant had access to computer programmes known as LEAP and PIMS and used this access together with information he obtained from discussions with police officers, to provide confidential information to L.
Count 1 – Misconduct in Public Office
This count relates to the supply of confidential information by the appellant to L regarding police drug trafficking investigations. Within months of first meeting L the appellant discovered that L was continuing to traffic in drugs, notwithstanding the fact that she was a registered police informer. The appellant told L that police had information that she was dealing in heroin from her home address. He told her that five people were about to be ‘busted’ and he showed her a list of names and a warrant which, he said, was about to be executed. As a result of this information L changed her residential address. On 14 and 16 October 2002 the appellant placed a LEAP tag alert on the new address of L for the purpose of monitoring police checks on her new address which was known to him but not to Senior Sergeant Fryer. At that time Senior Sergeant Fryer was endeavouring to be in contact with L at her old address. The appellant knew of her new address and was aware of Fryer’s attempts to locate L but did not inform him of that fact.
Count 2 – Misconduct in Public Office
This count involves the supply of confidential information regarding data from the LEAP data base relating to two associates of L. I shall call them ‘T’ and ‘K’. On 2 May 2003 the appellant accessed the LEAP data base and conducted checks on K and T. Previous thereto L had requested the appellant to provide her with information about T with whom she was living. On 26 September 2005 a LEAP document referring to T’s complete criminal and other history was located during a search of the appellant’s property at his parents’ address. Analysis of the document revealed the presence of the appellant’s fingerprints.
Count 3 – Misconduct in Public Office
This count relates to the use of confidential passwords belonging to other police members who were working with the appellant at the Prison Squad. On a date prior to 28 August 2003 the appellant installed software onto one or more of the computers within the Prison Squad office. This enabled him to capture every keystroke entered. In the course of a search of the premises occupied by the appellant in July 2004, a personal home computer and a compact disc were found. Analysis of the compact disc revealed the stolen passwords from the police LEAP data base and numerous other police files. The appellant used those passwords in order to conduct checks on the police LEAP data base, allowing the checks to remain untraceable.
Count 4 – Misconduct in Public Office
On 28 August 2003 the appellant used another officer’s password to obtain information regarding an associate of L’s and details of outstanding police matters related to that associate. He printed the record and showed it to L.
Count 5 – Misconduct in Public Office
On the same date as count 4 and at the same time, the appellant accessed information relating to a registered informer numbered 3877396. The appellant printed the record and showed it to L. On 26 September 2005 during a search of the appellant’s parents’ premises, investigators located a printed copy of the history of the registered informer which document bore the fingerprints of the appellant.
Count 6 – Misconduct in Public Office
This count involves the supply of confidential information to L regarding police and drug trafficking investigations. The appellant disclosed to L that her voice had been heard on recordings made in the course of an investigation. On 28 April 2003 the appellant told L to stay away from a named registered informer because the police were about to execute a warrant of arrest upon that informer. L warned the informer of the impending arrest. L also told the informer that police were intercepting her telephones and that she, the informer, was under police surveillance. In consequence of receiving this information the informer moved out of her residential address for a short period of time and stopped using two mobile telephone services used previously by her.
Count 7 – Theft
During the execution of a search warrant at the appellant’s residence on 29 June 2004, four blank prescriptions and two blank medical certificates belonging to a Doctor Jeffrey Harrison were located by investigators. Dr Harrison was the appellant‘s general practitioner and had prescribed strong pain killers to the appellant. He said that the appellant had been left alone in his office because he trusted him but that no-one had permission to take prescriptions or certificates.
Count 8 – Misconduct in Public Office
In January 2004 the Major Drug Investigation Division was conducting a covert operation in respect of a registered police informer. A covert operative was introduced into that operation in an attempt to gather evidence regarding the drug trafficking activities of associates of that informer. The informer was unaware that the covert operative was a police member. The appellant informed L that police were investigating the informer in question and advised her of the probability that a covert operative was going to be used against that informer. The appellant informed L that her voice had been identified during telephone intercepts of discussions between L and the informer. As a result of the appellant providing this information to L, she did not contact the informer again using the telephone number in question. Analysis of intercepted calls between the informer and her drug associates over following days revealed that the informer advised her associates that her phone was ‘in trouble’ and that they should use a new number to contact her. The informer also asked her drug associates to change their telephone numbers. L and the informer altered their behaviour and continued their drug activities undetected for a period of 47 days before investigators were able to ascertain their new numbers and obtain warrants for further telecommunication interceptions.
Count 9 – Misconduct in Public Office
Count 9 is related to count 8 in that, at the time of advising L of the fact that police were investigating the informer in question, it is agreed that the appellant raised the possibility of a covert operative being used to obtain information as to the named informer’s drug dealings with associates. Later the informer told police that she had been told by L that the person to whom the informer was selling drugs was an undercover policeman.
Count 10 – Possession of a drug of dependence
The appellant first met a person to whom I shall refer as ‘R’ in 1998 when R was a registered informer for a number of Drug Squad operations. During 2001 the appellant was the ‘handler’ of R who at that time was a registered informer. The last entry on the informer management file for R was dated 2 November 2001 and he was not a registered informer subsequent to 22 September 2003. When investigation into the activities of the appellant was commenced by the police ethical standards CETA task force in January 2004, it became clear that R and the appellant were continuing to communicate with each other. As part of the investigation both the appellant and R were placed under physical surveillance and their telecommunications services were monitored. The monitoring revealed a request from the appellant to R to provide him with 27 syringes for the purpose of injecting morphine. In a monitored telephone call on 5 May 2004 the appellant requested R to post morphine sulphate tablets to him in the name of ‘Max Burns’ at a post office box operated by the appellant. The delivery was intercepted by police and found to contain morphine sulphate tablets and MS Contin. R provided evidence to police that he had exchanged drugs with the appellant by mail on more than one occasion. Searches of the residential premises occupied by the appellant revealed numerous pieces of drug paraphernalia including burnt spoons, boxes of syringes, alcohol swabs and a pestle used for grinding.
Count 11 – Misconduct in Public Office
During April 2004 L was living in a flat in a residential block owned by the Department of Housing. She had entered into an agreement with the lawful occupier of the premises but the Department of Housing became aware of that illegal tenancy and required L to leave the premises. On 2 April 2004 the appellant telephoned L and told her it would be a ‘good idea’ for her to stay in the same building but to move address so that her customers would still know where to find her. He told her not to tell anyone of her new address. She was thus facilitated by the appellant in continuing her drug trafficking and the chances of her being detected trafficking drugs was reduced.
Count 12 – Misconduct in Public Office
This count once again involves the supply of confidential information to L. On 30 April 2004 the appellant told L that a friend of hers was working for police as an informer. It is agreed that the provision of this information minimized the chances of L being detected trafficking in drugs.
Count 13 – Theft
On 15 May 2002 the appellant was one of several police officers who executed a search warrant in premises in Fitzroy. Whilst the appellant was searching a bedroom in the premises he stole a TAG Heuer watch.
In addition to the above indictable matters, the appellant also pleaded guilty before her Honour to two summary offences: possession of a cartridge of ammunition and possession of a prohibited weapon. The maximum penalty on the charge of possession of ammunition is 40 penalty units and the maximum penalty for possession of a prohibited weapon is 60 penalty units or six months’ imprisonment. In the course of the execution of a search warrant at the appellant’s residential address in June 2004, 50 rounds of .38 calibre cartridge ammunition were located. The appellant was not on duty at the time and was not licensed or authorised under the Firearms Act to possess such ammunition. In the course of the execution of the search warrant an extendable baton was located. The baton was similar to extendable batons issued to operational Victoria Police members but had not been issued to the appellant by Victoria Police. It was a prohibited weapon as described by the Controlled Weapons Act.
The appellant
I turn to the facts personal to the appellant. He is now 39 years of age having been born on 11 September 1967. Both his parents are retired persons. He completed his secondary education at Wesley College, having obtained his HSC in 1985. In his teenage years he demonstrated an ability to play tennis, being ranked number 13 in the State Under 18 Years competition. Upon leaving school he undertook tertiary studies graduating Bachelor of Business from Deakin University in 1989. Thereafter he joined Victoria Police. At first he was stationed in the Transport Branch and then with Transit Police. In 1996 he was appointed to the Drug Squad and in 2002 he was appointed to the Prison Squad. He married in 1992 and has one child. He and his wife separated in 2005. In 1994 and in consequence of undertaking an arrest, he developed neck ache and neck stiffness. He returned to his duties without loss of time from work although it is likely that he received some physiotherapy.
On 21 August 1995 the appellant was involved in a struggle with an offender in the course of an arrest. This resulted in the development of further neck ache and a back problem with right-sided sciatica. Following this incident he was unable to return to his duties for a period of approximately six months. In October 1997 he underwent a laminectomy in the lumbar spine and was unable to work for a period of approximately three months. Following the surgery, which relieved his sciatic pain considerably, he nevertheless continued to have neck and back pain and he was prescribed Panadeine Forte. Subsequently he was prescribed morphine. It is apparent that the appellant became addicted to morphine over a period of time. The theft of the blank prescriptions, the subject of count 7, and the possession of morphine sulphate tablets, the subject of count 10, are offences which I accept are related to his addiction to morphine.
The appellant was examined by a psychiatrist, Dr Newlands, in February 2003. This examination took place in the context of a WorkCover claim being made by him. Dr Newlands observed that the appellant had seen a psychologist at about that time and had been prescribed an anti-depressant by a general practitioner to assist him in adjusting to his long standing pain. Dr Newlands concluded that at that time the appellant was suffering from an adjustment disorder with features of both depression and anxiety. She said that ‘His psychological symptoms however, are relatively mild … ‘ She observed that he was still employed as a police officer but in her opinion was unable to undertake the form of work in which he was engaged prior to his back and neck injury. However, this she said was related to his physical condition and not to his psychological one. At that time she did not consider he required referral to a specialist psychiatrist. It should be observed that at that time she considered that the appellant was fully orientated, his ability to retrieve information (both recent and remote) was good, nor was there any evidence of any disorder of thinking or perception. He showed no disturbance of affect during the interview. She did note, however, that at that time the appellant was using ‘a slow release morphine, at a dose of 110 milligrams per day, and has been on this dose since April 2002’.
The appellant was seen by a pain medicine specialist, Dr Kinloch, in March 2003. Dr Kinloch noted that he had been prescribed 50 milligrams of Kapanol and 60 milligrams of MS-Contin since April 2002. Both of those prescription drugs are oral preparations of morphine. Dr Kinloch expressed the opinion that the appellant had developed tolerance to his then dosage of slow release morphine and suggested an increase in his dosage of Kapanol, and if this failed he suggested the referral of the appellant to the Geelong Pain Clinic.
The appellant was seen by thoracic surgeon, Dr Cailes, in early 2004. In a report dated 18 March 2004, Dr Cailes stated that the appellant had spent six days in intensive care in Geelong Hospital with severe bi-lateral pneumonia leading to respiratory failure requiring mechanical ventilation.
A report dated 21 July 2005 from a neurosurgeon, Mr Myron Rogers, was tendered on the plea. Mr Rogers had examined the appellant in relation to his chronic back pain and sciatica. Mr Rogers noted a medical history which included narcotic addiction which he understood was being treated by the appellant’s general practitioner.
Furthermore a report dated 24 August 2006, prepared by psychiatrist Dr Sacks, is before us. Dr Sacks commenced treating the appellant in January 2006 and saw him on 12 occasions prior to the date of his report. From the appellant he obtained the history that by 2003, when his neck and back pain had persisted despite escalating amounts of prescribed opioid analgesics, he became increasingly depressed and began injecting crushed up tablets to enhance their effect. Dr Sacks diagnosed the appellant as suffering from a chronic pain disorder and an adjustment disorder with mixed anxiety and depressed mood.
The appellant’s wife, Lisa Moody, gave evidence on his behalf before her Honour. Ms Moody had married the appellant in 1992. The couple had one child who was five years of age at the time of the plea. She said she believed the appellant started ‘requiring morphine some time around 2000’. She said that between then and September 2003, when he was admitted to hospital suffering from pneumonia, he had maintained his determination to keep working and to be an effective detective but throughout that time he was using pain killers. She said that his admission to hospital in September 2003 followed a period when he worked several 24 hour shifts. She gave evidence that from 2000 onwards there were few periods of time when the appellant was not reliant upon morphine.
In addition to the above material, a report of Dr Morris Odell, forensic physician with the Victorian Institute of Forensic Medicine, was placed in evidence on the plea. Dr Odell gave evidence that Kapanol and MS-Contin, being drugs which the appellant was prescribed, are sustained release preparations which contain relatively large amounts of morphine which is released over 8-12 hours. He said there is no ‘usual’ dose of morphine, the effectiveness of the dose depending on the degree of pain, the person’s individual pain tolerance and sensitivity, and whether there has been past use of opiates resulting in tolerance. He gave evidence that morphine is about one-third as effective when taken by mouth compared with intravenous use. His report stated that regular users become physically addicted to the use of opiates and suffer unpleasant withdrawal symptoms when the drug is discontinued. He stated that, in a person with an established tolerance, the regular use of narcotics may not produce ‘much in the way of observable signs’.
In addition to the above evidence, two witnesses, Mr Hewitt and Mr McAlpine, gave evidence of the good character of the appellant.
The evidence is that, at least until he suffered injury in 1995, the appellant was a highly regarded member of the Victoria Police Force. Internal Victoria Police reports dated 4 March 1984, 2 July 1996 and 8 July 1996 are before us. These are testament to the high regard in which the appellant’s senior officers held him at the time of those reports.
Re-sentencing
It is now possible to proceed to re-sentence the appellant in the light of the facts relating to the offending and to the appellant.
Counsel for the appellant relies upon a number of matters of mitigation. Whilst he concedes that the offences of misconduct in public office are serious, he relies upon the concession made by the prosecution that no discernible personal gain was made by the appellant in consequence of that misconduct. Furthermore counsel submits that not only did the appellant derive no personal gain by reason of his offences of misconduct in public office, but it should be accepted that his motive in obtaining information and providing it to L was to assist her welfare and furthermore to cultivate her as an informer. Indeed, he submits that the appellant, in circumstances where his judgment was affected by his morphine addiction, saw the continued cultivation of L as an informer as being in the public interest.
It is submitted before us that the prosecution conceded effectively that that was the motivation of the appellant in committing those offences. This submission is based upon the fact, that in the course of giving her evidence upon the plea, the appellant’s wife Ms Moody stated that the appellant had told her that L was ‘important to his work and that she had information both now, but was likely to have information for the future that would be of great value to his work’. Furthermore, she stated that the appellant ‘was particularly distressed by the treatment of some of the other informers’ by police officers. In addition our attention was drawn to evidence given in the course of the committal hearing by a Detective Bongiorno who had worked with the appellant. In the course of cross-examination by counsel for the appellant, Mr Bongiorno stated that from time to time he had sought to obtain information from an informant who was no longer a registered informant. He said that he had ‘run into’ L when he was off duty and that she had tried to ‘pump information’ from him. He agreed that he and the appellant ‘may have’ tried to cultivate L as an informer after she was deregistered as an informer.
It is submitted on behalf of the appellant that the failure of the prosecution to cross-examine Ms Moody at the time of the plea, or to make submissions contrary to what was said to be the motivation of the appellant by the appellant’s counsel, amounted to a concession made by the prosecution.
That argument cannot be accepted. First, and significantly, at the time of the plea, counsel for the prosecution put in contest the manner in which the appellant’s counsel relied upon the evidence of Mr Bongiorno given at the committal. He submitted that Mr Bongiorno gave evidence of ‘trying to get information from (L), not to give information to her’. Furthermore it was submitted that, insofar as Mr Bongiorno had agreed to ‘the cultivation’ of L, it was likewise in the context of obtaining information from her rather than providing it to her. The Crown contended on the plea that the cultivation of L that Mr Bongiorno spoke about was a different circumstance altogether because there was no suggestion that he was giving L information. Secondly, although Ms Moody was not cross-examined about her evidence that the appellant had said that L had information that was likely to be of great value to his work, she was cross-examined about the number of phone calls from L which had been received at the home she shared with the appellant. In his submission on the plea, counsel for the prosecution put the evidence of Ms Moody in context by pointing out that, of the 32 recorded phone calls between the appellant and L, only five phone calls were instigated by L. The other phone calls were instigated by the appellant.
In my view it is clear that, whilst the prosecution conceded that there was no evidence of any discernible personal gain derived by the appellant, it cannot be said that the concession went as far as accepting that the appellant was motivated by his desire to ensure the welfare of L and to cultivate his relationship with her in the public interest. No such concession was contained in the statement of agreed facts, nor is there any basis whatsoever for inferring such a concession from the material before us.
In my view, on the material before us and on the balance of probabilities, such a finding could not be made in favour of the appellant. It is simply not believable that the appellant, no matter how seriously his judgement may have been impaired by his morphine addiction, could continue to work as a policeman, obtain information of the type that he did, and in the manner that he did, and supply it to L in the belief that what he was doing was in both the interests of L and the public good. One may well ask, if his motivation was as honourable as submitted, why did he not obtain and supply such information openly? Why was some of the information deceptively obtained by use of ‘stolen passwords’? In my view the Court is simply left in the position that whatever the motive for the behaviour of the appellant was, it has not been established or revealed on the evidence before us.
The further matter of mitigation submitted before us is that the mental state of the appellant at the time of his commission of the offences was such that he cannot be said to be an appropriate vehicle for the full application of the sentencing principles of general and specific deterrence.
I have set out above a summary of the medical evidence. Counsel for the applicant submits that the medical evidence, together with the evidence of the appellant’s wife, compels the conclusion that at the time of the commission of the offences the appellant suffered impaired mental functioning and that the R v Tsiraris[3] principles as reformulated in R v Verdins[4] are applicable in this case. In particular it is submitted that the depression, anxiety and impaired judgement caused by the physical injury of the appellant and by his morphine addiction was an impairment in mental functioning which reduced the moral culpability of the conduct of the appellant, to the extent that denunciation, general deterrence and specific deterrence should be moderated as sentencing considerations.
[3][1996] 1 VR 398.
[4][2007] VSCA 102.
The evidence before us is not such as to enable us to draw a conclusion that the appellant suffered an impairment of mental functioning which justifies the moderation of those sentencing considerations. The psychiatrist, Dr Newlands, who saw the appellant in February 2003 in the context of a WorkCover claim, formed the view that at that time ‘his psychological symptoms’ were relatively mild. Dr Sacks diagnosed the appellant as suffering from a ‘chronic pain disorder and an adjustment disorder with mixed anxiety and depressed mood’ as at early 2006. However as stated in Verdins[5]:
The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.
[5]Para [8].
Furthermore, as stated in R v Skura[6] by Eames JA:
A disorder falling short of serious psychiatric illness might well be capable of moderating the need for general or specific deterrence but the onus was on the applicant to demonstrate that it did so in this case, by establishing that its effect reduced the seriousness of the offences and the moral culpability of the applicant.
[6][2004] VSCA 53, [8].
There is no evidence before us to enable us to conclude that the ‘relatively mild psychological symptoms’ diagnosed by Dr Newlands in February 2003, or the ‘adjustment disorder with mixed anxiety and depressed mood’ diagnosed by Dr Sacks in 2006, reduced the moral culpability of the appellant at the time of the commission of the offences. For these reasons I am of the view that general deterrence in particular is a factor of importance in the circumstances of this case. Specific deterrence is likewise of relevance, although it is most improbable that the appellant will have the opportunity to offend in a similar way again.
There are, however, a number of other significant matters of mitigation. The appellant pleaded guilty at an early stage. The community and the proposed witnesses were spared the cost and inconvenience of what would have been a complex and lengthy trial. The sentencing judge concluded that the plea went some way to indicate remorse and I see no reason for reaching a different conclusion.
The appellant has no prior convictions and the references placed before the Court demonstrate that, at least up until the time that he sustained his back injury, he was a person of good reputation and character. It is clear that he was a hard working and respected member of the police force prior to, and throughout much of, the time of the offending. By the commission of these offences the appellant has lost the capacity to engage in his chosen career as a member of the police force. He is now 40 years of age and as a result of his offending has lost his reputation, his career and, it would appear, his marriage. He has suffered public humiliation by reason of significant publicity surrounding his offending. As submitted by his counsel, the publicity had added sting in his case as the reporting in question carried the erroneous slur of personal gain.
Counsel for the appellant informs us that the appellant is serving his sentence at Ararat prison in protective circumstances. He now works as a unit billet. He has overcome his morphine addiction and has returned negative results to random drug testing. He has engaged in an eight week pain relief course and improved his fitness. He continues to have some back discomfort but has made substantial improvement in the management of his back condition. We are informed that in December 2006 the appellant was spoken to by members of the Office of Police Integrity about his method of accessing the LEAP system and that he provided information to them that was described as ‘helpful’.
I accept that rehabilitation of the appellant has commenced and in all the circumstances is likely to continue.
Furthermore counsel for the appellant stated that he suffers hardship in being imprisoned at Ararat by reason of the six hours return trip required to be undertaken by his supportive parents to visit him.
Notwithstanding those mitigating circumstances, the offences of misconduct in public office to which the appellant pleaded guilty are serious examples of such offences. The offences took place over an extended period between October 2002 and April 2004. On any view his breach of his duty had the effect of permitting L to continue to traffic in drugs of dependence and interfered with the gathering of evidence against her. The accessing of confidential data bases held by Victoria Police for the purposes of providing information to L must be regarded as most serious. The public is entitled to have confidence that such material will remain confidential. The breach of that confidentiality, such as took place in this case, is liable to have a serious impact on public confidence in the maintenance of such data bases by law enforcement agencies. The public is entitled to rely upon the integrity of police officers in investigating and prosecuting offenders. It is entitled to expect that police officers will not abuse intentionally the trust reposed in them in relation to confidential information.
As a police officer, the appellant had trusted access to the LEAP and PIMS data base. As an experienced police officer he knew that it was his duty to maintain the confidentiality of that information and not to pass it on to unauthorized persons. In breach of the trust reposed in him, and in breach of his duty as a police officer, he chose to pass confidential information to a person he knew to be a drug trafficker. The circumstances of count 3, which involve the installation by the appellant of software onto Prison Squad computers, thus enabling him to use the passwords of other members of the police force without their knowledge, demonstrate with clarity the fact that the appellant not only had a clear understanding of the nature of this duty, but chose to breach that duty in a most serious manner.
General deterrence and denunciation are therefore matters of significance in the circumstances of this case.
I would re-sentence the appellant as follows:
Count 1
Misconduct in public office
12 months’ imprisonment
Count 2
Misconduct in public office
18 months’ imprisonment
Count 3
Misconduct in public office
42 months’ imprisonment
Count 4
Misconduct in public office
18 months’ imprisonment
Count 5
Misconduct in public office
18 months’ imprisonment
Count 6
Misconduct in public office
24 months’ imprisonment
Count 7
Theft
3 months’ imprisonment
Count 8
Misconduct in public office
24 months’ imprisonment
Count 9
Misconduct in public office
36 months’ imprisonment
Count 10
Possession of a drug of dependence
6 months’ imprisonment
Count 11
Misconduct in public office
36 months’ imprisonment
Count 12
Misconduct in public office
24 months’ imprisonment
Count 13
Theft
3 months’ imprisonment
I accept that the two summary matters of possession of a cartridge of ammunition and possession of a prohibited weapon could have been dealt with by the Magistrates’ Court in November 2005, when a community-based order was
imposed in respect of a number of other matters with which the appellant was charged and arising from the investigation of the appellant. I would convict the appellant of each of those offences but impose no penalty.
I would direct that six months of the term of imprisonment imposed on count 6, and six months of the term of imprisonment imposed on count 9, and six months of the term of imprisonment imposed on count 11 be served cumulatively on each other and upon the term of imprisonment imposed on count 3.
That makes a total effective sentence of five years’ imprisonment. I would direct that the appellant not be eligible for parole until he has served a term of imprisonment of three years.
WHELAN AJA:
I have read the reasons of Kellam JA in draft. For the reasons he has set out, I agree that the appeal should be allowed and that the appellant should be re-sentenced as he has proposed.
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