R v Entwistle

[2021] NSWDC 159

District Court

New South Wales

Medium Neutral Citation:

R v Entwistle [2021] NSWDC 159

Hearing dates:

19 March 2021

Date of orders:

26 March 2021

Decision date:

26 March 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

ICO for 1 yr 11 months with 500 hours community service, and fine of $10,000.

Catchwords:

CRIME – SENTENCE – Cth offence – Public servant engaged in conduct with the intention of dishonestly obtaining an advantage for himself and other – Misuse of computer system of DAWR to obtain data relevant to importing formwork plywood to give an advantage to others involved in that trade and in the expectation of personal gain – No actual benefit obtained for himself – Offending over 18 months period – Guilty plea – Late – Significant utilitarian value – Discount of 15% allowed – Prior good character – Nearly 12 years service in Army, including active service overseas – Unlikely to reoffend.

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999

Criminal Code (Cth)

Environment Protection and Biodiversity Conservation Act 1999

Cases Cited:

Imbornone v R [2017] NSWCCA 144

Lee v R [2020] NSWCCA 307

R v Einfeld [2009] NSWSC 119

R v Farquhar (unreported CCA, 29 May 1985)

R v Jackson and Hakim (1988) 33 A Crim R 33

R v Obeid (No 12) [2016] NSWSC 1815

Ryan v The Queen (2001) 206 CLR 267

Wany v The DPP [2020] NSWCA 318

Category:

Sentence

Parties:

Crown – Regina
Offender – Jarrod Entwistle

Representation:

Crown:
Counsel – D. New
Solicitors – CDPP

Offender:
Counsel – S. Lawrence
Solicitors – Sydney Criminal Lawyers

File Number(s):

2019/00205648

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Jarrod Entwistle stands for sentence as a consequence of having pleaded guilty to a charge that between 24 April 2016 and 10 October 2017 at Sydney in this State, he, being a Commonwealth public official, engaged in conduct in the exercise of his duties as a Commonwealth public official and did so with the intention of dishonestly obtaining a benefit for himself and another person. That is an offence contrary to s 142.2(1) of the Criminal Code Act of the Commonwealth of Australia. The maximum penalty for the offence is five years' imprisonment and/or a fine of $54,000.

2. The offender was charged by a Court Attendance Notice first returnable in the Downing Centre Local Court on 16 July 2019. He was committed for trial by Atkinson LCM on 18 February 2020. He was arraigned in this Court on 20 March 2020 on an indictment containing four counts. The first count is the count to which the offender ultimately pleaded guilty. The second count in the original indictment was a count in the alternative and the third and fourth counts were offences alleged to be contrary to s 478.1(1) of the Criminal Code (Cth). The first was modifying restricted data and the second was having unauthorised access to restricted data. To those four counts the offender pleaded not guilty. The matter was then set down for trial on 12 October 2020. However, there were negotiations between the Commonwealth Crown and the offender and the trial date was vacated on 8 October 2020 and on 12 October 2020 the offender was arraigned on the count in a fresh indictment before Yehia DCJ and entered a plea of guilty to that count leading to the sentencing hearing that was conducted by me last Friday.

Value of guilty plea

3. I recite that curial history because it is relevant to one of the issues raised before me, and that is the extent of the discount to be granted to the offender for his plea of guilty. It was not an early plea. Clearly there was a trial scheduled to take place on 12 October 2020 but that fortunately did not need to proceed because of plea bargaining. If the New South Wales statutory scheme applied, a discount of no more than 10% would be allowed. In fact, the discount would probably be only 5%. However the Crown concedes that the guilty plea has great utilitarian value. The matter was listed for trial during a period when jury trials were lengthy and limited because of the COVID 19 pandemic. As this was a Commonwealth prosecution the matter had to be tried by a jury. From the facts that I shall set out it is clear that much time would have been taken up explaining to the jury how the computer system of a Commonwealth Government Department worked and taking the jury slowly and piecemeal through many pieces of evidence. The trial would have been lengthy. It was estimated to last two weeks by the lawyers but their estimates are often too brief. Because of the utilitarian value of the offender’s plea of guilty I proposed during the sentencing hearing last Friday to allow a discount of 15% of the sentence properly to be passed upon the offender because of the utilitarian value of his plea of guilty and I intend to proceed with that proposal.

Facts

4. The offender commenced working in the Federal Public Service on 29 June 2009. He commenced working for the Department then known as the Department of Agriculture, Fisheries and Forestries. It is now known as the Department of Agriculture and Water Resources or DAWR. Henceforward I shall refer to it as DAWR. Importations into Australia valued below $1,000 are subject to self-declaration by importers who must record all relevant information in a Department of Home Affairs database called the Integrated Cargo System, (ICS). If an importation matches a profile established by DAWR it is placed in a Self-Assessment Clearance (SAC) screening queue. SAC screeners then assess the importation to determine whether it can be cleared or whether it requires formal inspection or whether further information is required. During his period of offending the offender was employed as a supervisor of a SAC team, part of the Assessment Services Group of the DAWR. The offender was also responsible for processing what are called Full Import Declarations (FIDs) which are processed through an information system.

5. On 3 November 2015 the offender signed a form to access ICS. That form included these acknowledgments:

"I understand that the use of ICS for other than official purposes is prohibited."

"I am aware that…the Crimes Act 1914 and the Customs Administration Act 1985 restrict the use and disclosure of sensitive information. I am aware that all enquiries made on ICS are recorded for audit purposes, and that the misuse and disclosure to unauthorised persons, or information contained in ICS may result in criminal charges or disciplinary action."

A similar acknowledgment was signed by the offender on 12 November 2015 when upgrading his access to ICS. Another document signed on 12 November 2015 by the offender contained this advice to him: "Disciplinary and/or criminal sanctions may apply for misuse or unauthorised use." That form also contained this statement: "I am aware of my responsibilities not to cause to assist in a breach of security" including "unauthorised and/or unnecessary browsing of the network and associated systems." Other documents of a similar nature were signed by the offender on 26 December 2016.

6. The offender eventually became involved in a company known as Nano Logistics Pty Ltd to which I shall refer merely as Nano. The offender assisted in the incorporation of Nano. On 2 February 2017 he made a payment of $1,150 to accountants. That payment was for the preparation and registration of the company. On 2 February 2017 there was the internal transfer of $287.50 into the offender’s personal account which was given the description "Hany Company Reg". Hany is the first name of Hany Rohaim who became a member and director of Nano. Unbeknown to the offender, Rohaim is a member of the Comanchero Outlaw Motorcycle Gang. Clearly Rohaim was reimbursing the offender some money for the incorporation of Nano. There was a similar deposit in the offender’s bank account by Shoaib Shams who also became a member and director of the company. Despite the fact that Nano appears only to have been incorporated in February 2017 the offender commenced assisting its eventual members and directors prior to its incorporation. Another director of Nano was Opeti Kei who was known as "Stan" and I shall use that description because it is easier to use than Mr Kei’s full name.

7. A search warrant was executed at the offender’s home on 13 December 2017. On the offender’s computer was found a large number of documents relating to Nano including spreadsheets for the Nano business which contained profit calculations for products and contacts and company details. There were also documents relating to the supply of formwork plywood by Nano to other businesses including R&D Supplies Pty Ltd, Metro Global Pty Ltd and Shandong Rogge Wood Industry Co Ltd. There were also documents showing the calculation and estimates of prices and expenses for the importation of formwork plywood. In the agreed facts the formwork plywood is just referred to as "form ply". Also on the offender’s computer were a copy of ANZ lodgement receipts for payments made by Nano from another of Nano’s business accounts. The offender at no time declared his external business interest in Nano or his dealings with its directors and members to DAWR as he was obliged to do.

8. Between 24 April 2016 and 10 October 2017, the offender made 220 unauthorised accesses to restricted data in the DAWR computer systems. Those accesses were made in order to keep track of shipments for Nano and to gain access to the records of competitors’ and suppliers’ consignments and to enable him to research the prices of material and shipping used for the bringing of consignments from mainly, it appears, China that were used for the benefit of Nano. It is agreed that the offender tracked Nano shipments and shipments of competitors and suppliers' consignments for the purpose of giving financial and business advantage to Nano and its directors. That is the benefit given to others that comprises an element of the offence and the offender knew that those accesses were unauthorised and that he was using his position as a Commonwealth public official dishonestly for the benefit of others.

9. It would also appear that there was an indirect benefit accruing to the offender because he expected ultimately to receive some income or financial advantage from Nano or its directors although none was actually ever paid.

10. The agreed facts spend much time giving details of each access. I do not intend to recite them all. I shall recite the first two to give the flavour of what was occurring. On 24 April 2016 at 3.07pm whilst on duty at the Roseberry office of DAWR, the offender made two accesses to restricted DAWR data in ICS in relation to two numbered containers containing form ply consigned to an eventual competitor of Nano, Austop. Paperwork relating to that company was later seized from the offender’s home when the search warrant was executed. There was no legitimate business reason for the offender to access details of that consignment. That access was to be applied for the benefit of Nano and its directors. Also on 24 April 2016 at 4.40pm whilst on duty at the Roseberry office of DAWR the offender made five accesses to restricted data in ICS in relation to another container containing form ply consigned, again, to Austop. Photographs of the Full Import Declaration relating to that consignment were later found on the offender’s computer. Again, there was no legitimate business reason for the offender to view that consignment or to photograph the Full Import Declaration contained in the ICS. That contained confidential information relating to Austop’s commercial business. That access, again, was to be applied for the benefit of Nano and its directors.

11. The companies whose dealings with DAWR the offender obtained access were Austop, AZL Trade, Royal Plywood, Monaco Global, On Top, Formwork Part Supplies and R&D Supplies Pty Ltd. Having access to their records told the offender and therefore those with whom he was associated at Nano what his competitors were buying, from whom they were buying it, at what price, how it was being shipped to Australia and at what price and gave them clearly a financial advantage manipulating the market for the benefit of Nano.

12. Very shortly after the incorporation of Nano, on 17 February 2017, the offender travelled with Hany Rohaim to China returning on 25 February 2017. The offender paid for the airline tickets. The place in China which was visited is the location of Shandong Rogge Wood Industry Co Limited which was a supplier to Nano. That reinforces the role that he had in assisting Nano.

13. After the incorporation of Nano, the offender unlawfully gained access to Nano’s consignment records with DAWR. The offender used his position as a supervisor of another staff member, Mr Javed Mansuri, to have Mr Mansuri process administratively a Nano consignment and have it released despite its having been placed in quarantine. The offender’s purpose was to have the Nano consignment cleared quickly to avoid storage costs and enable a prompt delivery of the material for Nano’s business benefit. Of course, it also jeopardised the quarantine system. Plywood is something that is liable to be contaminated by, for example, insects or pests that could be admitted into the country.

14. In the agreed facts under the heading "Unauthorised Accesses and Disclosures" there are listed a number of events which occurred in early August 2017. By this stage the offender’s telephone had been lawfully intercepted. On 4 August 2017 at 1.13pm the offender called Stan and they had a conversation about a number of things. One was a delay being caused by a container that they had been expecting from the Chinese supplier. The offender and Stan agreed that they were "learning little things along the way" and it was observed that they had progressed from where they had started to where they then were in the process of importing plywood for formwork. One of them observed the other that much had been learnt since April 2016.

15. On 8 August 2017 a number of containers was delivered to R&D Supplies Pty Ltd. That was a company in which Rohaim and Stan had an affiliation and the offender knew that one person who worked there, known as Amin, was an "ex-bikie". At 4.04pm the offender called his then wife, Rachel. The offender told her that their container had arrived safely and had been delivered. Rachel asked the offender "Do you get paid? Will you get paid?" The offender responded positively that he thought he would and that he would talk to Stan later about being paid. There was a further conversation between the offender and his then wife on 10 August 2017 about being paid. At 2.27pm the offender’s then wife called him as he was on his way home from visiting an accountant. The offender told Rachel that the accountant had informed him that he, the offender, would need to add GST to shipping bills. Rachel then asked the offender "When do you guys get your cash?" The offender replied "Today I hope…Stan’s down here so he’s sorting ‘em out now". Clearly the offender wanted payment, his then wife expected payment.

16. On 29 August 2017 the offender received a call from the National Australia Bank, his bank, about changing the title of his family home over to that of his wife. The offender told the bank that he was "running a business with some mates" and that if things went "pear shaped" he did not want to have the house in his name. That was clearly an admission by the offender of his being involved with the business of Nano.

17. On 30 August 2017 at 4.32pm the offender called Rachel. The agreed facts contain a number of things. They are these:

•   "The offender said ‘I’ll ring a solicitor tomorrow to find out what it’ll cost to change the house over to your name’ …’with Amin and Stan - I don’t want to do this anymore. I just feel corrupted, you know?’

•   Rachel tried to persuade him to stay with the business saying ‘it's be a shame if they earned money off it and you just walk away without you actually letting them know what your concerns are"’.

•   Rachel said they put money in and a few thousand dollars is a lot of money to ‘us’ and that ‘you’ve just spent 18 months wining and dining’.

•   The offender said ‘I said that to Hany and Stan, I said, the first thing that’s going to happen when we start makin’ money is that Rach can reduce her work’."

It should be seen by that by the end of August 2017 the offender perceived that he may have been corrupted by his association with the others involved in Nano and wanted to stop doing what he was doing, but there was financial pressure upon him from, inter alia, his then wife to stay the course and eventually recover a financial benefit.

18. On 8 September 2017 the offender called International Delivery Service about returning six containers to China. In a conversation with the employee of that company the offender told the employee "I work with Stan and Hany" and he was told to contact the shipping line involved.

19. On 9 September 2017 at 3.37pm there was a phone call between the offender, Rohaim and Stan in which they had an argument about an email Rachel had sent to Stan and Rohaim. Stan said, "In business, you never, ever get your family involved". Mr Rohaim said, "don’t get anyone involved in our business, let’s just keep it me, you and Stan". A little later Rohaim referred to the offender as being a "partner" in the business. The offender then said to them:

"Do you guys not understand what I’ve done, could have - could have landed me somewhere that I shouldn’t have been? Do you guys understand that? No, you don’t, because mate, I could so easily be in fuckin gaol right now for what I’ve done, right?"

Clearly by September 2017 the offender realised that he was risking his liberty by engaging in corrupt conduct.

20. On 10, 11, and 12 October 2017 the offender had numerous telephone conversations with Stan about a consignment which was for Stan’s friend’s hemp seed oil. That was a legal importation. Clearly the offender was telling Stan how to import goods from overseas. During the conversation the offender told Stan the following:

•   How to submit the correct documents and to who.

•   To whom to speak to release the consignment.

•   Recommended a change of broker, how to change broker and how much it would cost.

•   Ask for further information regarding the permit that Customs were saying was required so he could ‘help out’.

•   Tells Stan that his mate needed to look at previous importations the company had done and to see what was different on this occasion.

21. There was no further unauthorised or impermissible activity after 24 October 2017. A search warrant was executed at the offender’s residence on 13 December 2017 which eventually led to the offender’s being charged in the following year by a Court Attendance Notice. Whilst under caution during the execution of the search warrant the offender admitted the following:

•   He knew Mr Rohaim and Stan and that they were friends of his who owned a business.

•   Because of the line of work that the offender was in he had a look at documents to let them know that it was a correct type of document required and that he gave them advice on what their broker should do, what type of documents the brokers needed to submit.

•   He did not receive a benefit for that.

•   He was looking to get out of where he worked and start a business, or maybe go into business with Rohaim and Stan so he went with them to China.

•   That he had no involvement in Nano or any interest in scaffolding "stuff" or any business interest in relation to that.

•   That Rohaim and Stan had an affiliation with the company R&D Supplies Pty Ltd and that Amin who worked there was an ex-bikie.

•   That he did not know anything about Rohaim’s background and that he had no idea if he had a criminal background.

Personal circumstances

22. The offender was aged between 38 and 40 years during the period of offending. He is now 43 years old. He left school at the age of 18. He has had two periods of service in the Australian Army. He joined the regular army on 12 November 1996. His initial period of service ended on 4 February 2001. That period of service was for four years and three months. He was a private in rank. During that period, however, he earned the Australian Active Service Medal with Clasp for East Timor. In other words, he saw active service in East Timor. He also earned the International Force East Timor Medal. He was awarded when he left a Returned from Active Service Badge.

22. He re-joined the army on 9 July 2001. On this occasion he joined the Royal Australian Corps of Transport and learnt the trade of Advanced Cargo Specialist. That probably was a trade experience which assisted him in obtaining the job which he had with DAWR. This period of service ended on 13 December 2008. This period of service was for seven and a half years. During this period, he also served overseas but it was not active service. On 11 December 2003 he was awarded the Australian Service Medal with a Clasp for Bougainville. On 5 August 2004 he was awarded a Clasp to the Australian Service Medal for Solomon Islands (II). On 1 March 2007 he was awarded the Australian Defence Medal. It can be seen that during this period of service he served overseas in both Bougainville and the Solomon Islands and was probably in a peace keeping role. All told, the offender has served for almost 12 years in the Australian Army, serving the community.

23. He obviously made strong friends in the military. There is in evidence a reference from Mr Aaron Marsh who has known the offender for 24 years. They met in Townsville when they were both serving in the Australian Defence Force. He regards the offender as "one of my dearest and closest friends". He categorised the offender as an "upstanding member of the community". He believed that the offender’s offence was "out of character". It was certainly out of character for the man that Mr Marsh knew at the time, but the offending was over an 18-month period which is of great concern to the Court.

24. There is also in evidence a reference from Warrant Officer Class Two Dean Johnstone, clearly still a member of the Australian Army. He served with the offender from 1997, again in Townsville. Mr Johnstone said this:

"I acknowledge that I am aware that Jarrod has pleaded guilty to the offence being abuse public office. We have had numerous discussions about his actions and the impact it has caused him. During these conversations Jarrod has expressed deep remorse that he has found himself in this unwanted situation.

The fact Jarrod has accepted responsibility in relation to this serious incident is not surprising to myself, as he has always stepped up and owned his actions. Jarrod has always portrayed himself as an honest and reliable person who I am sure will learn from this error and accept the consequence of his actions."

26. Also in evidence is a reference from a serving member of the Royal Australian Navy, Mr Scott Northey, who is the Commander of the Weapons Electrical Engineers in the RAN. He has known the offender for "over 20 years". They met through an inter-service basketball competition. Mr Northey says this:

"In my 26 years of service I have had countless young men and women work under my charge. This enabled you to become particularly good at judging character and the ethos of an individual. I believe that Mr Entwistle is a good and honest man and prior to this, has never given me any reason to doubt that."

27. Unsurprisingly, the offender has left the Commonwealth Public Service. He has found employment in the field in which he has some expertise. According to the sentencing assessment report the offender is currently employed by Pacific National Freight earning a salary of approximately $114,000 per annum. The offender was dealing with freight in his second period of service with the army, with freight when he was working for DAWR and is again working with freight.

28. The offender has been assessed as being at a low risk of offending.

Offender did not give evidence

29. One of the things strenuously pressed by the Crown is the fact that the offender did not give evidence, nor indeed even provide a letter. The Crown asked me to draw adverse inferences from that fact. I am acutely aware of the relevant principles set out in [57] of the judgment of Wilson J in Imbornone v R [2017] NSWCCA 144. Whilst things that are said which are untested can be taken with a grain of salt, some things do not need to be viewed in that way. For example, the sentencing assessment report was made by a Community Corrections officer. That is a person independent of the offender, not a person, for example, who is partial to him or has been qualified to provide a favourable report such as many of the psychological reports that regularly come before this Court. In the sentencing assessment report, the following is stated under the heading "Insight into Impact of Offending":

"When discussing his role in the offence Mr Entwistle continually expressed feelings of both shame and remorse, stating that he feels as though he has not only let himself and his family down but has ‘done a disservice to the public in a role where honesty and trust is expected’.

Contact with Mr Entwistle’s partner revealed him to be remorseful for his actions, stating that he has become emotional on multiple occasions when recounting his involvement in the offence and the abuse of his DAWR database privileges."

I am prepared in those circumstances to accept that the offender is remorseful and that remorse is what the Court expects, an acknowledgment of the damage that he has done to our community by his illegal conduct.

30. The offender’s current partner, Ms A K Sharma, has also provided a reference. In that, she says this:

"He blames no-one but himself and is extremely remorseful for his action. He is hoping to be able to find some mental and emotional stability so he can give back to the community, having experienced near homelessness himself. He has shown a keen interest in joining me and volunteering for the Organ Sky, a cause we are involved in through [my work]."

31. Since being charged the offender’s marriage has been dissolved. His partner’s letter tells me this:

"Listening to Jarrod, I understand that Jarrod’s break up from his ex-wife was an extremely painful time in his life. He left his family home, that he had lovingly renovated, with only a bag of clothes and the old car with nowhere to live and no-one close by to turn to for help. He resorted to cheap hotels as well as just sleeping in his car between his work shifts. Understandably, he would have been an emotional wreck and obviously not in the right head space to make any decision on where to live. He finally managed to rent a small studio, where he still lives. In the recent financial settlement with his ex-wife, he signed over their family house and all other assets to his ex-wife and kept a mere $15,000 cash."

The offender’s current partner clearly has a favourable view of him. She is a senior executive officer in a large insurer, a responsible position. Of him she says this:

"Since I have known Jarrod, he always put his kids first. His kids are at a young age of two, six and eight and he is immensely dedicated to them. Even though he is currently paying full child support for the kids, he still spends his days off with the kids. He picks them up in the morning and spends time taking them swimming, sports training or kicking a ball in the park before dropping them off at school and then he picks them up again in the afternoon for a play and dinner before dropping them back off at home. Given the nature of his work, Jarrod gets two weekends off each month and he spends both the Saturdays with the kids, taking them to sport, playing with them and spending time cooking and bonding with them before he drops them back at home.

I see the anguish in Jarrod at not being able to have the kids stay over given the uncertainty of his current situation and therefore his inability to move into a bigger place. Between the rent, child support and lawyer’s fees, Jarrod barely has enough to live on. I am hoping that he is able to put all this behind him and be able to focus on a happier, stable future where he is able to move to a bigger place and be able to spend the quality time he’s so seeking with his kids."

Ms Sharma has two teenage boys and she also speaks of his "being an amazing role model" for her two sons and of the time and assistance that he gives to them.

32. The offending was serious and, as I said, over a prolonged period of 18 months. Nevertheless, the offender appears to have realised months prior to his becoming aware that he was under suspicion, that is when the search warrant was executed, that he was offending and he wanted to give it up but was driven perhaps for financial reasons to stay the course in order to obtain a financial benefit so that his wife could reduce her working hours. It would appear from a psychological report that is before me that the offender was having matrimonial difficulties and they may have contributed to the offending.

Psychological report

33. The psychological report is of no assistance to me. True it is that the offender has been in recent times suffering from anxiety and depression. I have constantly pointed out that anyone standing for sentence in this Court who is not anxious and depressed would be abnormal. After all, Mr Entwistle, like so many others, faces the prospect of being incarcerated. It is clear that the offender first sought assistance from the psychologist in 2015 about inter alia a work-related stress that has absolutely nothing to do with the current case. The offender’s work stress was a consequence of his perception of being unfairly treated by his "boss" that that led to him being moved within the department from one place to another, leading no doubt to the section in which he worked at the time of the offending. The psychologist diagnosed an adjustment disorder at that time but the offender responded well to therapy and ceased treatment by the middle of 2015, prior to committing any offence.

34. The offender returned to see the psychologist in September 2017 with symptoms of anxiety, depression and "stress". According to the psychologist’s report the offender presented "with significant distress around assisting two people with their administration for their new business" however she also noted that there was "significant relationship issues at the time". Antidepressant medication was prescribed by a general practitioner. According to the psychologist the offender came to see her to discuss how he could stop providing administrative assistance and leave the business of the two people he was helping as well as dealing with the conflict within his family. The whole of the psychologist’s report when read appears to me to be highly partial. It is unclear to what extent the offender’s attendance in September 2017 was related to matrimonial stress or the stress of dealing with Hany and Stan. There was no suggestion however that a depressive illness or any psychiatric problem led the offender to doing what he did, rather what the offender was doing may have caused him stress.

35. Clearly the offender saw the psychologist on 5 September, 13 September, 22 September and 4 October 2017. The warrant was executed on 13 December 2017 and the offender went back to see the psychologist on 18 December 2017. According to the psychologist this is what occurred:

"A few months later in December 2017, Mr Jarrod Entwistle scheduled an appointment. He presented as highly distressed, highly anxious and was very upset and confused following an incident which involved 20 policemen who came to his house, with a warrant to search his house. He was confused and fearful and stated that he had no idea why the police searched the house. He was later suspended from work."

One can envisage the scene of a large number of policemen executing a search warrant in a suburban home in a Sydney suburb and the stress that that would have caused the offender and the strain on his marriage. Since then, the offender has seen his psychologist on 13 occasions. One would think that with the resolution of the matrimonial difficulties by the dissolution of the marriage, the property settlement reached with his former wife and settling down with his new partner and having a new job there would be some alleviation of anxiety and stress.

Consideration

36. The substantial issue before me is whether the offender should receive a full-time custodial sentence or some other form of custodial sentence. One of the authorities to which I was referred by the Crown was Lee v R [2020] NSWCCA 307. In that matter there were three counts. The first count was possession of fauna specimens and regulated live specimens contrary to the Environment Protection and Biodiversity Conservation Act 1999. The second count was the same count for which this offender stands for sentence and the third count was dealing with money that was believed to be the proceeds of crime. In that case King DCJ imposed an aggregate sentence. For each of the first and third counts he gave an indicative sentence of one year of imprisonment. For the second count his Honour gave an indicative sentence of two years' imprisonment. Eventually he sentenced the offender to imprisonment for three years with release on recognisance after serving 18 months. The offending of Lee who was a senior biosecurity officer in DAWR was, in my view, more serious. He used information obtained in the course of his employment with the DAWR to exploit vulnerabilities in the live fish importation system procedures used by the department to assist in facilitating the illegal importation of regulated specimens for sale. In the course of his employment as the senior biodiversity officer at DAWR he actually stole five live prohibited aquatic fauna which are identified in the judgment, which I need not recite. As a senior biosecurity officer, Lee was entrusted with protecting the community and the environment from biosecurity risks. Instead, he used his position of trust to identify weaknesses in the system and assisted in facilitating the illegal importation of species for his own financial gain. Due to Lee’s position, Lee would have been acutely aware of the potential adverse consequences of his actions but he persisted in the conduct over a significant period of time.

37. His Honour described the offending conduct as not being isolated or impulsive but represented a systemic and ongoing breach of trust. This offender’s offending could be regarded as an ongoing systemic breach of trust but not to the same extent as that of Lee.

38. The Crown stresses the fact that this was the type of crime which should be dealt with similarly to the sort of crime that is referred to in R v Obeid (No 12) [2016] NSWSC 1815. However one must be cautious when referring to such a case. There is dictum in the judgment of Callinan J in the High Court of Australia in Ryan v The Queen (2001) 206 CLR 267 at [176] which points out that offences such as the common law offence of misfeasance in public office often are committed by those who have prior good character and in assessing the penalty to be imposed it is necessary to give lesser weight to prior good character, especially in cases where the offending is by one holding high public office. For example, in R v Obeid, the offender was a Minister of the Crown who misconducted himself in public office for his own financial benefit. In R v Farquhar (unreported CCA, 29 May 1985), a former Chief Stipendiary Magistrate misconducted himself in a public office; in R v Einfeld [2009] NSWSC 119, a retired judge of the Federal Court of Australia for his own financial benefit of minor import indulged in false swearing contrary to the very principles relating to the conduct of judicial officers. In R v Jackson and Hakim (1988) 33 A Crim R 33, a former Minister for Corrective Services was taking bribes in the execution of his functions as a minister of the Crown.

39. This is not a case of such magnitude. Here the offender whilst he misconducted himself as a civil servant, his misconduct does not rise to the gravity of those cases to which I have just referred. What must be borne strongly in mind in this case is the offender’s prior good character, the fact that he is highly unlikely to offend again, and the steps that he’s taken to rehabilitate himself by again finding employment and taking on the financial responsibilities of looking after his former wife and children and perhaps then to his assisting his current partner in the education of her sons. In Ryan, McHugh J said this:

"30. Another, but less articulated, reason for considering ‘good character’ in the sentencing context appears to involve the idea that a ‘morally good’ person is less deserving of punishment for a particular offence than a ‘morally neutral or bad’ person who has committed an identical offence. Walker and Padfield have described as ‘remarkable’:

‘…cases in which the Court is influenced be meritorious conduct which has nothing to do with the offence. Men have had prison terms shortened because they have fought well in a war, given a kidney to a sister, saved a child from drowning or started a youth club. Such cases are interesting because they seem to result from two assumptions: (i) that offenders are being sentenced not for the offence but for their moral worth; and (ii) that moral worth can be calculated by a sort of moral book-keeping, in which spectacular actions count for more than does unobtrusive decency. This can be illustrated by the ambivalent remarks of the [English Court of Appeal] in R v Reid (1982) 4 Cr App (s) 280:

‘While this Court would not usually interfere with the sentence because the defendant had committed an act of bravery, we think that if the Recorder had known about this incident, it may well be that he would have formed a different view of the appellant; he might have come to the conclusion that the appellant was much better and a more valuable member of society than his criminal activities led him to suppose.’’

31. Notwithstanding the ‘remarkable’ rationale for taking into account a prisoner’s otherwise good character, at common law it is an established mitigating factor in the sentencing process. What makes a person of otherwise ‘good character’ will necessarily vary according to the individual who stands for sentence. It is impossible to state a universal rule."

The Walker and Padfield that is Honour was referring to was "Sentencing Theory, Law and Practice”, 2^nd ed (1996) at pp 53 to 54. The offender’s prior service to his country is a major mitigating factor.

40. Furthermore, when one consults the statistics not every offender against this provision has been sentenced to imprisonment, as Mr Lawrence submitted. There have only been two cases in New South Wales, since the sentencing reforms, in this Court. There was the one where there was an 18 month non-parole period and in the other there was an intensive corrections order. Prior to the sentencing reforms, there were four offences. Two of those offenders received prison sentences with non-parole periods of six months or 12 months and in two cases the entire sentence was suspended under provisions of the Crimes Act 1914 (Cth). In the current matter I have been urged by Mr Lawrence to impose an ICO and to impose a fine. An ICO is an available option under the Crimes Act 1914 (Cth).

41. Dealing quickly with the matters I must consider under s 16A of the Crimes Act 1914 I have already discussed the nature and circumstances of the offending. There were no other offences that I must or ought take into account. Paragraph (c) of s 68A(2) requires me to consider whether the offence forms part of a course of conduct consisting in a series of criminal acts of the same or similar character. Here the course of conduct is in fact an element of the offence. Paragraph (d) requires me to take into account the personal circumstances of any victim of the offence. There is no actual victim. There is the putative damage to the competitors of Nano and the damage that the offender has brought to the integrity of our system of government but there is no direct victim. Paragraph (e) requires me to take into account injury, loss or damage resulting from the offence but none has been identified. There is no victim impact statement. I am required to take into account the degree to which the offender has shown contrition and I have referred to that. There is no method available to allow him to "recompense" the Commonwealth for his misdoing. Paragraph (fa) is irrelevant. I am required to consider the plea entered by the offender and I have already referred to that. I am required under paragraph (h) to take into account the degree to which the offender co-operated with the law enforcement agencies. He did give some explanations when the search warrant was executed, explanations that were contrary to his interests.

40. The following paragraphs of s 16(2) require me to take into account both specific and personal deterrence. I am satisfied that the offender will not re-offend and therefore the specific deterrence does not arise. However, general deterrence does. Every public servant must realise that if he or she misconducts himself or herself in office he or she will be liable to suffer condign punishment which may well include incarceration.

41. I am also required to observe a need to ensure that the offender is adequately punished for the offence and I have a process of so doing. The remaining provisions of s 68A(2) I have already considered.

42. I have come to the view that this offending conduct is below the mid-range of objective seriousness, but just below it. The maximum penalty is five years. I start with a theoretical head sentence of two years and three months. I discount that by 15% which indicates a discount of four months. That reduces the head sentence to 23 months' imprisonment or one year and 11 months.

43. In Wany v The DPP [2020] NSWCA 318 the Court of Appeal considered whether this Court ought to have considered the imposition of an intensive corrections order rather than a sentence of imprisonment. An ICO is an alternative way of serving a sentence of imprisonment. That is clear from the language of the Crimes (Sentencing Procedure) Act 1999, ss 5, 5A and 7. When the Court is considering an ICO community safety is a mandatory element for consideration. That requires in accordance with s 66(2) of the Crimes (Sentencing Procedure) Act 1999 an assessment as to whether an ICO or full-time detention is more likely to address the offender’s risk of offending. Section 66 does not preclude the imposition of an ICO except where the sentencing Court reaches a positive determination that an ICO as opposed to a full-time detention is more likely to address the offender’s risk of re-offending. The weight to be given to the determination of offender’s risk of offending is a matter within the discretion of the sentencing judge.

44. Here the offender’s risk of re-offending is low. Therefore, there is no real reason that the offender should serve the one year and 11 months sentence in full-time detention but it could be served by the imposition of an ICO. The sentencing assessment report tells me that the offender is an appropriate person on whom to pass an ICO and that the offender is a person who could perform community service work. I intend to proceed accordingly. I have listened closely to Mr Lawrence’s submission and another factor that he urged upon me was the imposition of a financial penalty which will strengthen the deterrent effect of the sentence. I intend to impose such a fine.

45. Jarrod Entwistle, on the charge that between 24 April 2016 and about 10 October 2017 in this State you did, you being a Commonwealth public official, engage in conduct in the exercise of your duties as a Commonwealth public official and did so with the intention of dishonestly obtaining a benefit for yourself and another person, you are convicted. I sentence you to imprisonment for a term of one year and 11 months commencing today to be served by way of intensive correction in the community. Terms of the order are:

1. you must not commit any offence;

2. you must submit to supervision by a community corrections officer;

3. you must complete community service work for 500 hours.

You are to report to the Community Corrections office at St Leonards by telephone within seven days.

I also impose a fine of $10,000.

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Decision last updated: 05 May 2021