R v Job

[2010] NSWDC 246

CITATION:	R v JOB [2010] NSWDC 246
HEARING DATE(S):	3 September 2010
JUDGMENT DATE:	3 September 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The overall sentence is one with an effective non-parole period of three years and an overall term of five years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Obtain benefit by deception - Obtain a corrupt benefit - Official in RTA
LEGISLATION CITED:	Crimes Act 1900
PARTIES:	The Crown Damon Job
FILE NUMBER(S):	2009/187991
COUNSEL:	P Nematalla - Offender
SOLICITORS:	The Director of Public Prosecutions Riemer Winter Williamson

SENTENCE

1 HIS HONOUR: Damon Job appears for sentence on a number of charges relating to his corrupt and dishonest activity concerning four aspects of his work with the Roads and Traffic Authority. He pleaded guilty to these offences at an early stage (apart from one matter which, by oversight, was not dealt with in the Local Court. It was no fault of the offender that he only admitted his guilt on that matter when an indictment was presented in this Court).

2 The offender joined the Roads and Traffic Authority in 1998. In late 2003 he was appointed to the position of Operations Manager within the Traffic Management Centre. His duties there included responsibility for “tidal flow” operations, those traffic arrangements which are designed to give extra lanes of traffic travelling a particular direction during peak hour periods. As part of the employment he received training in anti-corruption, the RTA’s Code of Conduct and the importance of declaring conflicts of interests where they arise.

3 The offender, however, used his position corruptly to benefit a friend of his parents, Terry Steptoe. The offender himself received benefits from Mr Steptoe for those corrupt actions. They continued for many years resulting in a significant loss, as well as associated significant gains to Mr Steptoe and, to a lesser extent, the offender himself. The offender’s criminal activity occurred between 1 January 2004 and 31 March 2006. In that time, Mr Steptoe received approximately $300,000 of which $106,500 was paid to the offender as a reward for his corrupt activities.

4 The offender’s illegal actions began with less serious misconduct, but as is usually the case, soon escalated. In late 2003, the RTA called for tenders for work concerning tidal flow activities at May’s Hill. The offender knew that his friend, Mr Steptoe, was in financial difficulty and so he suggested to him that he tender for that work. The offender assisted his friend but failed to tell anyone at the RTA of his connection with Mr Steptoe. As it turns out, Mr Steptoe’s company did not win the contract at first. It was awarded to another company but that company was unable to take up the contract and so Mr Steptoe’s company, Advanced Traffic Solutions, was eventually awarded the work.

5 It is of note that the contract was for twelve months with a twelve month option awarded to the RTA. The contract was initially for twelve months even though it was well known in the RTA, apparently, that within that twelve month period tidal flow work would cease because of the installation of bus lanes in the May’s Hill area. So, even apart from the corrupt activities of the offender, someone was going to be paid, at least for some period, for doing nothing. Nevertheless, that did not involve any criminal activity on the part of the offender, nor was the offender criminally responsible for the failure of the RTA to terminate the contract after the bus lanes were installed which extended the period that Mr Steptoe’s company was paid for doing nothing. However, after the contract eventually expired, Mr Steptoe’s company continued to invoice the RTA for tidal flow work on seven separate occasions during the period 24 June 2005 to 31 December 2005. In total, the amount invoiced and paid was $93,632. Part of the offender’s illegal activity was that he certified that each invoice should be paid by indicating that the work had been completed satisfactorily. He even increased the amount to be paid on two occasions despite the fact that the work had ceased and there was absolutely no need at all to increase those payments. All it did was increase the payments made to Mr Steptoe’s company for doing nothing.

6 The seven separate occasions on which the offender approved the payment of invoices which he should not have approved resulted in seven counts under s 178BA of the Crimes Act, together with one count pursuant to s 249B of the Crimes Act which relates to the offender corruptly receiving a benefit on account of having continued to approve those false invoices. That latter charge relates to payments made by Mr Steptoe and/or his companies into the offender’s or his wife’s personal bank account or into accounts controlled by the offender or his wife.

7 Another aspect of the offender’s criminality concerns tidal flow work in Moore Street, Lane Cove. Initially that work was done by the RTA in house but in mid 2004 it was decided to privatise the work. The offender simply contracted work to Mr Steptoe’s company without attending to any of the RTA’s required processes. He is now to be sentenced for another offence under s 249B of the Crimes Act relating to this conduct, the benefit he received having been referred to above.

8 The next aspect of the offender’s criminality concerns the supply of what are described as “candy bars” which are striped plastic and metal tubes placed in sockets in the road as part of tidal flow operations. Mr Steptoe’s company invoiced the RTA for supply of candy bars totalling $93,463.70 in a series of eight invoices. The offender approved the payment of each of those eight invoices despite the fact that Steptoe never supplied any candy bars at all to the RTA. The charge that the offender faces in relation to this conduct is one of corruptly receiving a benefit for having breached his employment contract by disclosing work practices regarding the supply of candy bars to Mr Steptoe.

9 The final area of the offender’s criminal activities concerns Rail Corp shutdowns. This is a shorthand expression to refer to the situation where Rail Corp performs maintenance which causes train routes or train stations to close. When this occurs, buses are provided by the State Transit Authority or private contractors to transport passengers instead of them being transported by trains and additional services are required such as the creation of special event clearways and the like. Rail Corp is required to co-ordinate the shutdowns with the RTA as only the RTA can create a special event clearway. It is not necessary to detail in these remarks on sentence the precise manner in which various Government bodies are required to pay their money to others. What can be said, however, is that if everything was working correctly the State Rail Authority should have paid Mr Steptoe for some work, which it did. The RTA should have then invoiced Steptoe and Steptoe should have paid the RTA for work done relating to the Rail Corp shutdowns. The offender’s criminality was that he should have made arrangements for the RTA to have invoiced Steptoe so that the RTA could be paid but he did not. What the offender brought about was a situation where the RTA itself carried out work in relation to the special event clearways but the State Rail Authority paid Steptoe for that work. In relation to this area of the offender’s criminal activities he faces a number of offences of obtaining benefit by deception as well as an offence of corruptly receiving a benefit from Mr Steptoe as a reward for those other illegal activities.

10 It is to be noted that there is a significant overlap between the offences of corruptly receiving a benefit and those of obtaining a benefit by deception. The benefit was paid because of the illegal activity covered by the offences of obtaining a benefit by deception. I will bear that substantial overlap in mind when I come to consider issues of accumulation and concurrency.

11 As will be obvious, the offender performed many separate acts of criminality over the years for which he was paid. The major beneficiary of his activities was his friend Mr Steptoe, but the offender too profited. Indeed as Mr Nematalla frankly conceded the offences were not committed out of need but were committed out of greed. Offences such as these require significant punishment to reflect the effect that they have on public confidence in government organisations such as the RTA. It is apparently all too easy for people such as the offender to manipulate matters within the RTA, thereby causing cynicism and suspicion on the part of the general public. The offender breached the trust placed in him as a public servant and was well aware that that is what he was doing each time he committed an offence.

12 The offender is now forty-one years of age. He lived, at least until I refused him bail, at home with his wife and two children. His early years were spent living in Balgowlah but financial difficulties associated with his father’s poor employment record saw the family move to Mt Druitt. Whilst Mr Job was apparently quite clever, the financial pressures were such that he did not pursue a university education but joined the police force instead. His primary work as a police officer concerned traffic management and it was in that context that he was able to join the RTA in 1998 where he remained until his offending was discovered in 2006.

13 The offender has had a number of stressors in his life and, so the evidence would suggest, at the time of his offending he was suffering from depression. The offender remembers being teased as a child because he came from a poor family. He was sexually assaulted at approximately six to nine years of age and was even threatened with death during an investigation into allegations, which turned out to be false, that the offender had received sexual favours as a reward for appointing people to various positions within the RTA. Fortunately for the offender, he is now being successfully treated for that depression which has significantly improved his outlook.

14 The offender gave evidence without attempting to minimise in any way the extent of his wrongdoing. I am satisfied that the offender is remorseful for what he has done, not only because he will suffer and not only because his family will suffer too, but because he now recognises the significant impact that his wrong doing has had upon public perceptions of bodies such as the RTA. From my assessment, the offender was completely frank when he gave his evidence. He has apparently reached the stage where he realises there is no longer any point in continuing to deceive others about what he has done.

15 That attitude can be seen not only in what the offender said but in what he has promised to do. His co-offender, Mr Steptoe, is due to stand trial later this year. The offender has undertaken to assist the authorities by giving evidence against Mr Steptoe. That evidence will be particularly valuable and so I will impose upon the offender a sentence which is forty per cent less than it would have been in the absence of such assistance and his early pleas of guilty. The offender is entitled to rely significantly upon his demonstrated remorse, his assistance, the unlikelihood that he will commit offences of this nature in the future as well as the circumstance that his depression reduced his ability to reason about the wrongfulness of his misconduct.

16 On the other hand, it remains the case that his offending was seriously criminal, involving many separate acts of criminality over an extensive period of time. There is a very important need for a sentence to be imposed upon the offender which reflects the principles of general deterrence. That remains the case even though the offender was depressed at the time that he committed these offences. Although the offender was depressed, the decision to assist his friend and also himself in various corrupt ways was one which even a depressed person was fully aware, involved serious wrongdoing.

17 The offender has promised to repay the money which he corruptly received, $106,500. He will need to sell both an investment property which he has, which is hardly any hardship to him, as well as his family home which will leave his wife and children living in rented accommodation. This is certainly not hardship which is any way unusual. On the other hand, the offender will serve his sentence in the knowledge that his wrong doing has led to his wife and children having to leave the family home behind. Although the offender has not actually sold those properties yet and has only promised to do so thus far, I will make an order that the money is repaid which will mean that the properties will have to be sold. This is not a matter of mitigation at all. I note that the offender’s misconduct caused a larger loss than he is willing to repay and, in any case, it is not a matter of mitigation that reparation is paid. It is an aggravating factor if it is not.

18 Although not raised by Mr Nematalla, I take into account there is a risk that the offender may have to serve some of his sentence in protection, he being a former police officer and a person who will be giving evidence for the prosecution. Of course it is impossible to say whether it will be necessary for him to serve part of his sentence on protection and, if it is, whether it will involve conditions of custody which are harder than those applicable to the general prison population, but there is a risk of that happening which I have taken into account.

19 Mr Nematalla suggested that some, if not all, of the four separate areas of the offender’s criminality could be dealt with by way of sentences which are concurrent with each other, but this would be completely inappropriate. The four areas of offending all involved different aspects of the offender’s misconduct, different actions with different consequences. Each of the four areas involved a different series of criminal acts and there are four separate courses of conduct. I have already noted the overlap between offences of obtaining benefit by deception and the offences of obtaining corrupt benefit.

20 Mr Nematalla recognises a custodial sentence is required. He somewhat faintly suggested that it may have been possible for the offender’s criminality to be dealt with by way of periodic detention but I have determined an overall sentence which is well in excess of the limit which would make periodic detention an option.

21 The Crown conceded there are special circumstances in this case so I will enlarge the period of eligibility for parole at the expense of the non-parole period. On the other hand, the effective non-parole period that I will shortly announce is the least which properly reflects the offender’s criminality.

22 For each of the offences under s 178BA relating to the May’s Hill tidal flow, sequences 10, 11, 12, 13, 14, 15 and 16, the offender is sentenced to imprisonment. I set a fixed term of eighteen months to commence on 19 August 2010.

23 For each of the offences under s 178BA relating to the SRA shutdowns, sequences 28, 30, 36 and the matter on the indictment, I set a fixed term of eighteen months to date from 19 August 2011. Those sentences are fixed terms because of the sentence I will now impose.

24 On the four matters under s 249B of the Crimes Act, the offender is sentenced to imprisonment. I set a non-parole period of one year and a head sentence of three years to date from 19 August 2012.

25 The overall sentence is thus one with an effective non-parole period of three years and an overall term of five years. The offender is eligible to be released to parole on 18 August 2013.

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