R v John Lewis Wallis

[2016] NSWDC 94

District Court

New South Wales

Medium Neutral Citation:	R v John Lewis Wallis [2016] NSWDC 94
Hearing dates:	23 May 2016
Decision date:	27 May 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [47] and [48]
Catchwords:	Unlawful access to, and disclosure of police database by Commonwealth employee; supply prohibited drugs and theft of Commonwealth property
Legislation Cited:	Australian Federal Police Act 1979 (Cth) Crimes Act 1914 (Cth) Criminal Code (Cth) Federal Court of Australia 1976 Judiciary Act 1903
Cases Cited:	Cameron v R (2002) 207 CLR 339 Pearce v R (1998) 194 CLR 610 Veen v R No. 2 (1998) Vol 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (C’th Crown) John Lewis Wallis (Offender)
Representation:	Solicitor: E Wren (Cth Crown) In person (Offender)
File Number(s):	15/273414
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender has pleaded guilty to seven counts on an Indictment filed by the Director of Public Prosecutions (Cth) on 23 May 2016. The offences are as follows:

1. Between 3 September 2015 and 16 September 2015 used information that he had obtained in his capacity as a Commonwealth public official, with the intention of dishonestly obtaining a benefit for another person, namely, Christopher Raymond Floyd, contrary to ss 142.2(1) of the Criminal Code (Cth) (“the Criminal Code”).

The maximum penalty for that offence is 5 years imprisonment.

2. Between 3 September 2015 and 16 September 2015 at Canberra, being an Australian Federal Police employee, did directly make records of proscribed information that was not for the purposes of the Australian Federal Police Act1979 (Cth) (“AFPA”)or Regulations thereunder, and other legislation, or for the carrying out, performance or exercise of any of his duties, functions or powers under the Acts or Regulations, contrary to s 60A(2)(a) of the AFPA.

The maximum penalty for that offence is 2 years imprisonment.

3. Between 3 September 2015 and 16 September 2015 at Canberra, being an Australian Federal Police employee, did directly communicate proscribed information, being information obtained by him in the course of his employment with the Australian Federal Police and making records of the proscribed information that was not for the purposes of the AFPA of Regulations thereunder, or other legislation, or for the carrying out, performance or exercise of any of his duties, functions or powers under these Acts and Regulations, contrary to s 60A(2)(b) of the AFPA.

The maximum penalty for that offence is 2 years imprisonment.

4. Between 16 September 2015 and 17 September 2015, at Queanbeyan, in the State of New South Wales, did traffic in a substance, the substance being a controlled drug, namely, methylamphetamine, contrary to s 302.4(1) of the Criminal Code.

The maximum penalty for that offence is 10 years imprisonment, 2,000 penalty units, or both.

5. On 17 September 2015 at Queanbeyan, in the State of New South Wales, possessed a substance, the substance being a controlled drug, namely methamphetamine, contrary to s 308.1(1) of the Criminal Code.

The maximum penalty for that offence is 2 years imprisonment, 400 penalty units, or both.

6. Between 1 September 2014 and 17 September 2015, at Canberra, ACT, did dishonestly appropriate property, namely, an Australian Federal Police training Glock, extendable ASP baton, SAF-lock handcuffs, and an Australian Federal Police training baton belonging to a Commonwealth entity, namely, the Australian Federal Police, with the intention of permanently depriving the Commonwealth of the property, contrary to s 131.1(1) of the Criminal Code.

The maximum penalty for that offence is 10 years imprisonment.

7. On 17 September 2015 at Queanbeyan, in the State of New South Wales, possessed a substance, the substance being a controlled drug, namely methylenedioxymethylamphetamine (“MDMA”), contrary to s 308.1(1) of the Criminal Code.

The maximum penalty for that offence is 2 years imprisonment, 400 penalty units, or both.

The sentence hearing

2. The sentence hearing took place on 23 May 2016. The Crown tendered a bundle which contained a Statement of Facts, the criminal history of the offender, and a Certificate pursuant to s 16BA of the Crimes Act 1914 (Cth). By that Certificate, the offender asked the court to take into account a further offence listed on Schedule 1 thereto, namely, an offence that between 16 September 2015 and 17 September 2015, the offender did traffic in a substance, the substance being a controlled drug, namely MDMA.

Background to the offending

3. The Statement of Facts may be summarised as follows. The offender was born on 21 November 1971, and was, at the relevant time, employed as a Protective Service Officer, in the AFP at Canberra. He was previously in a personal relationship with Megan Emily Large. Ms Large allegedly worked as a prostitute at relevant times, and was subject to an illegitimate business relationship with a male person who organised her work as a sex worker. The facts outline that the offender was informed by Ms Large that she was not satisfied with those arrangements, and that she wished to work for another man, known as Christopher Ford, who is named in the Indictment.

4. On 15 September 2015, the Australian Federal Police (“AFP”) received information concerning an alleged corruption issue. That information indicated that Christopher Ford was receiving information from an AFP employee, and inquiries were commenced to identify employees of the AFP who had access to the relevant information on their work computers.

5. The facts established that on 3 September 2015, the offender was on duty at AFP premises in Canberra, and between 7.30pm and 7.40pm he accessed the AFP Police Real-Time Online Management of Information System (“PROMIS”). This database is the central information system used to document, store, retrieve and distribute the operational information holdings of the AFP. The offender conducted searches of the name, Christopher Ford, in an attempt to gain AFP information held on that person.

6. Between 12 September 2015 and 15 September 2015, the offender accessed PROMIS to access personal information relating to Christopher Ford, Serina Holmes and Aofangatukau Langi, and an AFP information report No. 1061738 relating to those persons. That report included Mr Ford’s mobile telephone number.

7. The offender then used a camera on his mobile telephone to take digtal photographs of the AFP computer’s display, at the time that it was displaying the AFP PROMIS information screens, relating to the above persons and information report.

8. The offender’s mobile phone was connected to a cellular service, and he sent multimedia messages from that phone to Christopher Ford’s mobile phone. Those multimedia messages contained the photographs of the AFP PROMIS information.

9. Between 3 September 2015 and 16 September 2015, the offender accessed the PROMIS system on 12 occasions.

10. On 17 September 2015, the offender was stopped on the Kings Highway, New South Wales, and was advised by police that they were in possession of a search warrant for the offender’s person and vehicle. On the same day, police conducted a digital Record of Conversation with the offender.

11. During the search of the offender’s vehicle, the police located a black Lenovo mobile telephone and a black Sony mobile telephone. During the search he made admissions of inappropriately accessing the AFP database and sending information to Christopher Ford.

12. The offender admitted that the information he had accessed had nothing to do with his official duties. He told police that he knew of Christopher Ford through his relationship with Ms Large, and that he obtained Mr Ford’s mobile telephone number from the information report he accessed on PROMIS. He sent the photographs of the information he accessed on PROMIS to Mr Ford because he thought Mr Ford could help him with problems he was having with a male person named Navid Lou. That person had sent the offender threatening text messages and he had heard that person had access to a gun. The offender had shown the information to Ms Large to demonstrate that her associates were not “good people”, because he did not want her associating with Mr Lou. He knew what he was doing was wrong and in contravention of his training. The telephones located upon execution of the search warrant were his phones, however, the Sim cards were not in the offender’s name, as he did not want to get caught.

13. Later on 17 September 2015, a search warrant was executed on Christopher Ford at his workplace in the ACT. A mobile telephone was seized, and during a conversation with the police, Mr Ford told them that he had randomly received photos and information from the AFP database, which included his “rap sheet”, or all of his charges. Mr Ford was asked:

“Q: Did this guy actually ask that, did he want anything from you?

A: He did state that I could be useful to him, and that I said ‘What the fuck do you want from me?’, and he goes, ‘I haven’t quite figured that out yet’.”

14. Later that day a search warrant was executed at the offender’s residence near Queanbeyan, and during the execution of the search warrant, police located six tablets believed to be ecstasy, 3 grams of a crystalline substance believed to be methylamphetamine, which was later analysed to weigh 2.420 grams and at 74.2% purity for a pure weight of 1.79 grams of methylamphetamine. The tablets were analysed and found to contain MDMA. Drug paraphernalia, including clear clip-seal bags, drug packing, scales and calibration weights were also located.

15. The offender told police that he bought the drugs online and paid for it by Bitcoin. When asked whether he was selling drugs, the offender denied that he was selling, but told police that he sold some ecstasy tablets to some friends, and then sold half the methylamphetamine to an associate for the sum of $445.00. He had sold 20 ecstasy tablets for $30.00 each, whereas they cost him $27.00 each.

16. The police also located a number of electronic items including a laptop computer, USB devices and a mobile telephone. Forensic examination of the USB drive identified the 19 images which he had transmitted to Mr Ford.

17. Police also located a number of items belonging to the AFP, including an Armanent, Systems and Procedures (ASP) extendable baton, SAF-lock handcuffs, an AFP training baton, and a training Glock firearm. The offender stated that the items had been in his house for up to a year, and admitted that he had taken the items from Parliament House during the course of his duties.

18. The criminal history of the offender showed two offences in 1990 of attempt burglary and possess housebreaking implements, which were both dealt with under s 556A. He was placed on a recognizance to be of good behaviour for 2 years in respect to the first offence, and the second offence was dismissed.

19. A pre-sentence report was ordered, however, the offender failed to attend three allocated appointments with the Community Corrections officer. There was therefore no assessment made of the offender with respect to Community based sentencing options.

Offender’s evidence

20. The offender tendered three testimonials which became Ex 1. They attest to the offender being a person of good character, an honest and trustworthy individual, whose offending was out of character. They also attest to his remorse, and that he has accepted responsibility for his actions.

21. The offender was self-represented and did not give evidence. He informed the court that he could not comprehend his thinking process in committing the offences. Indeed he said, “Some of the actions make no sense at all”. The offender said he was very foolish and got caught up in a situation that “got way out of his control”.

Crown submissions

22. The Crown submitted that the offending constituted serious criminal conduct on the part of the offender. The offending fell into three separate categories, namely:

1. Counts 1, 2 and 3 on the Indictment, of which Count 3 was the most serious of all of the charges, followed by Count 2, and then Count 1.

2. The drug offences comprising Counts 4, 5 and 7, and the offence certified pursuant to s 16BA.

3. Count 6 which involved the theft of AFP equipment.

23. The Crown submitted that these were obviously serious offences which involved a breach of trust by the offender of his employment conditions with the AFP. In addition to those first category of offences, were the drug offences and the theft offence. The nature and circumstances of the serious offending warranted a term of full-time imprisonment. Otherwise, the Crown relied on a detailed written outline of submissions which are referred to below.

Determination

24. Section 16A of the Crimes Act 1914 (Cth) provides as follows:

“Matters to which the court is to have regard when passing sentence et cetera – Federal offences

(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence, or make an order that is of a severity appropriate in all of the circumstances of the offence.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character – that course of conduct.

(d) the personal circumstances of any victim of the offence.

(e) any injury, loss or damage resulting from the offence.

(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence – any victim impact statement for the victim;

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner.

(fa) the extent to which the person has failed to comply with:

(i) any order under ss 23CD(1) of the Federal Court of Australia 1976, or

(ii) any obligation under a law of the Commonwealth; or

(iii) any obligation under a law of the State or Territory applying under ss 68(1) of the Judiciary Act 1903; about pre-trial disclosure or ongoing disclosure, in proceedings relating to the offence;

(g) if the person has pleaded guilty to the charge in respect of the offence – that fact;

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(ja) the deterrent effect that any sentence or order under consideration may have on other persons;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(n) the prospect of rehabilitation of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents.”

25. The Crown has submitted that of those matters, sub-paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) are relevant in the sentencing process here. I will deal with them seriatim.

26. I accept the Crown’s submission that the offences comprised of Counts 1, 2 and 3 in the Indictment, involving the access, recording and communication of proscribed information were serious offences which involved a breach of trust imposed upon the offender as a Commonwealth employee, and were in direct contravention of his training in relation to the use of the PROMIS system. I further accept the Crown’s submission that whilst it was acknowledged that the offender did not substantially gain from his actions, he was motivated solely by self-interest.

27. In relation to the drug offences, I accept the Crown’s submission that these are at the lower end of the scale of objective seriousness for offences of this type, given the limited quantities involved and the short period of time that the offender engaged in the supply of drugs. However, there was a degree of sophistication in the manner in which he purchased the substances on the internet, under a false name, and had them shipped to an abandoned warehouse to avoid detection.

28. The offence of theft, referred to in Count 6 on the Indictment, concerned a limited number of items of limited value, however, it was another instance of the breach of trust imposed on him as a Commonwealth employee. I have also had regard to the additional matter in contravention of ss 302.4(1) of the Criminal Code, which was the subject of the Certificate pursuant to s 16BA of the Crimes Act 1914 (Cth).

29. I note that the Crown concedes that the loss resulting from the theft of Commonwealth property was minimal, and the items were recovered during the search of his property.

30. In respect of the disclosure of protected information, I accept the Crown’s submission that disclosure of protected information by employees undermines the integrity of the AFP, and compromises the trust put in that organisation by the public and external agencies.

31. I have had regard to the offender’s early plea of guilty and accept that it indicates genuine remorse and acceptance of responsibility on the offender’s behalf. It may also demonstrate a willingness to facilitate the course of justice – see Cameron v R (2002) 207 CLR 339 at [11]. Further, the Crown has acknowledged that the offender co-operated with the investigation and made significant admissions in relation to the offences with which he was charged. The admissions made by him during two Records of Conversation, significantly assisted in the investigation of the matters before the court.

32. I accept the Crown’s submissions that the offences warrant a need for specific deterrence. They were not committed spontaneously and involved repeating offending during the period referred to above. Further, general deterrence is a significant factor to be taken into account here, particularly having regard to the fact that the offender was a member of the AFP, and there is significant public interest in ensuring the integrity of law enforcement agencies.

33. I have had regard to the fact that the offender is generally a person of prior good character.

34. I have regard to what the High Court said in Veen v R (No. 2) (1998) 164 CLR 465 at 477 where the plurality said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

35. The offender was 43 years of age at the time of the offences, and is now 44 years old. Any leniency granted by the court, on the basis of his prior good character, must be balanced by the fact that his prior good character allowed him to gain the position of authority and trust that he held as an employee of the AFP, and it was this position that was exploited in the commission of the offences. I accept the Crown’s submission to that effect.

36. I further accept that, whilst the offences occurred within the same time period, the fact that they were offences of somewhat different nature, warrant a degree of accumulation in the sentencing process. However, I have had regard to the principles of proportionality and totality, as required in the sentencing process as set out in the High Court’s decision in Pearce v R (1998) 194 CLR 610.

35. The Crown provided as part of its written submissions, a list of relevant cases, however, all but one involved single offences pursuant to s 70 of the Crimes Act. In one case involving multiple offences, a term of imprisonment was imposed to be served by way of periodic detention and to be followed by a recognizance to be of good behaviour for a number of years.

36. I have taken into account the further offence referred to in the Certificate pursuant to s 16BA of the Crimes Act 1914 (Cth), namely, that between 16 September 2015 and 17 September 2015 he did traffic in a substance, the substance being a controlled drug, namely, methamphetamine. I have executed that Certificate.

Sentence

39. I am satisfied that a sentence of imprisonment is the only appropriate sentence here pursuant to s 17A of the Crimes Act (Cth). I accept the Crown’s submission that the most serious offence here is Count 3 on the Indictment. I intend to sentence the offender to a term of imprisonment of 9 months for that offence, and a recognizance release order for 9 months.

40. In respect of the next most serious offence, which is Count 2 on the Indictment, I intend to sentence the offence to a period of imprisonment of 6 months with a recognizance release order for 6 months.

41. In respect of the offence in Count 1 on the Indictment, I intend to sentence the offender to a period of imprisonment of 6 months, with a recognizance release order for 6 months.

42. In respect of Count 4 on the Indictment, namely, trafficking a controlled drug, namely methylamphetamine, I intend to sentence the offender to a fixed term of 9 months imprisonment.

43. In respect of Count 5, I intend to sentence the offender to a fixed term of imprisonment of 3 months.

44. In respect of Count 7 on the Indictment, I intend to sentence the offender to a fixed term of imprisonment of 3 months.

45. In respect of Count 6 on the Indictment, I intend to sentence the offender to a fixed term of imprisonment of 3 months.

46. It is clear that there must be some accumulation of the penalties imposed here. I therefore intend to structure the sentence with partial accumulation of the various terms set out above. As the total aggregate sentence is one of less than three years imprisonment, I intend to make a recognizance release order pursuant to s 19AC of the Crimes Act 1914 (Cth).

Orders

47. I make the following orders:

1. In respect of the offence in Count 1 on the Indictment, pursuant to s 142.2 (1) of the Criminal Code (Cth), you are convicted. I sentence you to a period of imprisonment of 6 months to commence on 27 May 2016 and expire on 26 November 2016. I order a recognizance release order for 3 months to commence on 27 November 2016 and expire on 26 February 2017. The total term is 9 months.

2. You are convicted of the offence in Count 2 in the Indictment pursuant to s 60A(2)(a) of the AFP Act. I sentence you to a period of imprisonment of 6 months commencing on 27 June 2016 and expiring on 26 December 2016. I order a recognizance release order for 6 months commencing on 27 December 2016 and expiring on 26 June 2017. The total term will be 12 months.

3. You are convicted of the offence in Count 3 on the Indictment pursuant to s 60A(2)(b) of the AFP Act. I sentence you to a period of imprisonment for 9 months commencing on 27 July 2016 and expiring on 26 April 2017. I order a recognizance release order for 9 months commencing on 27 April 2017 and expiring on 26 January 2018. The total term will be 18 months.

4. In respect of Count 4 on the Indictment, you are convicted of the offence pursuant to s 302.4(1) of the Criminal Code (Cth). I sentence you to a fixed term of imprisonment of 9 months commencing on 27 August 2016 and expiring on 26 May 2017.

5. In respect of Count 5 on the Indictment, you are convicted of the offence pursuant to s 301.1(1) of the Criminal Code (Cth). I sentence you to a fixed term of 3 months imprisonment to commence on 27 August 2016 and to expire on 26 November 2016.

6. In respect of Count 6 on the Indictment, you are convicted of the offence pursuant to s 131.1(1) of the Criminal Code (Cth). I sentence you to a fixed term of imprisonment of 3 months to commence on 27 September 2016 and to expire on 26 December 2016.

7. In respect of Count 7 on the Indictment, you are convicted of the offence pursuant to s 308.1(1) of the Criminal Code (Cth). I sentence you to a fixed term of imprisonment of 3 months to commence on 27 September 2016 and to expire on 26 December 2016.

48. Effectively, this sentence means a total period of imprisonment for 12 months from 27 May 2016 to 26 May 2017 and a recognizance release order for 8 months from 27 May 2017 to 26 January 2018. The total sentence is for 20 months, and is less than 3 years imprisonment. I order pursuant to s 19AC of the Crimes Act 1914 (Cth):

1. You are to serve a term of imprisonment of 12 months, from 27 May 2016 to 26 May 2017.

2. I make a recognizance release order pursuant to s 19AC(1) of the Crimes Act 1914 (Cth) for a period of 8 months from 27 May 2017 to 26 January 2018.

3. I order a recognizance release order amount of $100.

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Decision last updated: 30 May 2016