R v MacLeod

[2013] NSWCCA 108

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v MacLeod [2013] NSWCCA 108

Hearing dates:

9 April 2013

Decision date:

13 May 2013

Before:

Simpson J at [1]; Harrison J at [66]; Bellew J at [67]

Decision:

(i) Crown appeal allowed;

(ii) The sentence imposed on the respondent be quashed;

(iii) In lieu thereof the respondent be sentenced to imprisonment for 9 months, commencing on 13 May 2013 and expiring on 12 February 2014, with a non-parole period of 6 months and 3 weeks expiring on 3 December 2013.

(iv) Direct that the respondent be released at the expiration of the non-parole period.

Catchwords:

CRIMINAL LAW - appeal - sentencing - Crown appeal - respondent convicted after trial of offence contrary to s 200 of the Police Act 1990 - nine further offences contrary to s 16(1) of the Poisons and Therapeutic Substances Act 1966 taken into account pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 - whether sentencing judge erred by suspending sentence - hardship to third parties - whether reasonably open to sentencing judge to find that co-offender did not pass on information to respondent - whether sentence manifestly inadequate - no exceptional circumstances within R v Edwards (1996) 90 A Crim R 510 principle - appeal allowed - sentence quashed - respondent re-sentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Poisons and Therapeutic Substances Act 1966
Police Act 1990
Privacy and Personal Information Protection Act 1998

Cases Cited:

Bangaru v R [2012] NSWCCA 204
Dipangkear v R [2010] NSWCCA 156
Elmir v R [2009] NSWCCA 22
Flick v R [2012] NSWCCA 170
FP v R [2012] NSWCCA 182
Hay v R [2013] NSWCCA 22
Hopley v R [2008] NSWCCA 105
Ihemeje v R [2012] NSWCCA 269
King v R [2010] NSWCCA 202
McCraw v R [2011] NSWCCA 162
R v Edwards (1996) 90 A Crim R 510
R v Kertebani [2010] NSWCCA 221
Sinkovich v R [2011] NSWCCA 90
Waugh v R [2010] NSWCCA 3

Category:

Principal judgment

Parties:

Regina (Applicant)
Andrew Michael MacLeod (Respondent)

Representation:

Counsel:
J Pickering SC (Applicant)
A J Kimmins (Respondent)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Applicant)
Moloney MacCallum Lawyers (Respondent)

File Number(s):

2011/187436

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-11-14 00:00:00

Before:

Phegan ADCJ

File Number(s):

2011/187436

Judgment

1. SIMPSON J: In September 2012 the respondent was charged on indictment in the District Court in Sydney with a single of count of making a collusive agreement with a member of the NSW Police Force for the purpose of improperly taking advantage of the member's position. He entered a plea of not guilty. After a trial, the jury returned a verdict of guilty. On sentence, the respondent asked that a further nine offences (of possession of restricted substances, contrary to s 16(1) of the Poisons and Therapeutic Substances Act 1966) identified on a Form 1 be taken into account pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). By s 200(2)(b) of the Police Act 1990, the collusive agreement offence is subject to a maximum penalty of imprisonment for 7 years and/or a fine of 200 penalty units.

1. On 14 November 2012 Phegan ADCJ sentenced the respondent to imprisonment for 9 months. Pursuant to s 12 of the Sentencing Procedure Act, his Honour suspended execution of the whole of the sentence.

1. Pursuant to s 5D of the Criminal Appeal Act 1912 the Director of Public Prosecutions ("the DPP") appeals against the asserted leniency of the sentence. The particular complaint made is directed, not to the length of the sentence imposed, but to the order for its suspension.

1. The charge on the indictment was brought under s 200(2)(b) of the Police Act, which is in the following terms:

"(2) A person (including a member of the NSW Police Force) who:

(a) gives, or offers or promises to give, any bribe (pecuniary or otherwise) or any other benefit to a member of the NSW Police Force, or

(b) makes any collusive agreement with a member of the NSW Police Force,

for the purpose of inducing the member to neglect his or her duty, of influencing the member in the exercise of his or her functions or of improperly taking advantage of the member's position is guilty of an offence.

The facts

1. Because the respondent's conviction resulted from a contested trial, there was no agreed statement of facts. The facts relevant for sentencing purposes were found by the sentencing judge on the basis of the evidence in the trial. In that regard, his Honour was conscious that, while it was his responsibility to find the facts, it was necessary that those facts be not inconsistent with the jury verdict. There was one, in particular, disputed issue of fact for sentencing purposes, to which it will be necessary to return.

1. The offence the subject of the indictment was committed between 3 May 2011 and 2 June 2011. The respondent was a businessman in the Coffs Harbour area, in the north of NSW. He owned and operated two furniture stores in that city, and operated a gymnasium, of which he was part owner, on the Gold Coast. In Coffs Harbour he was and is responsible for the employment of 12 staff. The respondent was a longstanding close friend of a local detective, Detective Senior Constable Anthony Farrell, who was assigned to the Joint Investigation Response Team. Farrell was the member of the Police Force with whom the respondent made the collusive agreement.

1. A good deal of the evidence in the trial consisted of recordings of intercepted telephone conversations between the respondent and Farrell; there was also evidence of telephone conversations between the respondent and other individuals. Transcripts were available for the jury.

1. The evidence established that, for some time, dating as far back as 2001, the respondent had been under suspicion by local police with respect to dealing in performance enhancing drugs and ecstasy.

1. On 5 May 2011 a telephone conversation took place between Farrell and the respondent concerning the use of performance enhancing substances, during which the respondent appears to have expressed some concern about his own position, saying that he felt like "crawling into a hole". Farrell is recorded in the transcript as replying:

"Oh it's not worth standing in a hole mate. I'll always give you heads up if I see that you're under notice because I get all the intel reports and stuff."

To this the respondent replied:

"Yeah."

1. This conversation, the sentencing judge held, was the conversation in which the collusive agreement the subject of the charge on the indictment was made. He held that its proper construction was that Farrell was offering (against police rules) to access information of a confidential nature and the respondent was accepting the offer. In other words, it was at this point that the respondent made the collusive agreement with Farrell. The judge held that, at this time, the respondent was well aware that he was accepting an offer by Farrell to act in breach of his professional obligations (both by accessing confidential information, and disclosing that information to the respondent). He held that the agreement was directed at averting any police investigation that might ultimately have had some adverse impact on the respondent, and enabling him to evade the consequences of the investigation.

1. On 24 May 2011, while he was driving north from Coffs Harbour, the respondent was stopped by police and his vehicle searched. It was made clear to the respondent that his name was contained in the NSW Police database system ("COPS") as a suspected supplier of steroids, and that the purpose of the search of the vehicle was to investigate whether he was in possession of such substances. (No such substance was in fact located in that search.)

1. Immediately after the search, the respondent telephoned Farrell, and told him of being stopped and his vehicle searched. There followed a discussion about whether the information ("intel") that prompted the search came from NSW or Queensland sources; Farrell then said:

"Ahh shit 'cause I um, I looked you up the other day and there's no, no dramas at all. I might have to look a little bit harder but I won't talk on the phone about it but buddy."

1. The construction placed on this conversation by the sentencing judge was that the respondent telephoned Farrell to protest that, contrary to the agreement they had made, Farrell had failed to warn him of the police intention to intercept him and search his vehicle, and that Farrell, recognising that he had failed to comply with his agreement, undertook to be more thorough in the future. A little later on the same day, Farrell sent the respondent a text message, requesting that the respondent provide his driver's licence number, and shortly thereafter Farrell accessed the COPS system, using the licence number the respondent had provided. Farrell accessed seven intelligence reports relating to the respondent.

1. The evidence disclosed that thereafter Farrell did in fact access the COPS system on a number of occasions. It also disclosed a significant number of occasions on which Farrell and the respondent communicated, by text messages and telephone. A number of these occasions coincided with the times at which Farrell accessed the COPS system. The Crown relied upon this timing as the basis for an inference that Farrell was indeed passing on the information he obtained to the respondent.

1. On 29 May 2011 the respondent was recorded in a telephone conversation with another person, Cheyne Rogan. During the course of that conversation, with reference to a third person, the respondent said:

"I know you're good mates with him but it's probably a good idea to distance from him at the moment ... he's as hot as a hot potato, mate ... I kind of have a very good hunch on it."

It was the Crown's contention, which the sentencing judge neither expressly accepted nor rejected, that this remark indicated that the respondent had in fact received information concerning the third person from Farrell - and that that explained his "very good hunch".

1. On 1 June 2011 a search warrant was executed at the respondent's home. That search yielded the restricted substances that were the subject of the Form 1 offences. The respondent pointed to the results of this search as evidence that Farrell had not passed on information to the respondent.

1. Farrell was charged with the common law offence of misconduct in public office. On the day fixed for trial (3 September 2010) he entered a plea of guilty, and asked that a number of additional offences (two of unauthorised access to restricted data - Crimes Act s 308(1); three of disclosure of personal information by a public official - Privacy and Personal Information Protection Act 1998; two of possession of restricted substance) be taken into account.

1. On 13 February 2013, after taking into account the somewhat belated plea of guilty, Phegan ADCJ sentenced him to imprisonment for 2 years, with a non-parole period of 1 year. Had it not been for the plea of guilty, the sentence would have been 2 years and 6 months.

The respondent's personal circumstances

1. The respondent did not give evidence either in the trial, or on sentence. A considerable amount of personal information was put before the sentencing judge by way of a pre-sentence report prepared by an officer of the Probation and Parole Service, a psychological report, and a considerable volume of references and testimonials.

1. The respondent was born in March 1971, and was therefore 40 years of age at the time of the offence. He had no prior criminal history. He was in a stable marriage, with two children aged (at sentencing) 6 years and 3 years. As mentioned above, he successfully operated furniture businesses, which produced adequate income. The authors of many of the testimonials spoke highly of his work ethic and commitment.

1. To the author of the pre-sentence report, the respondent claimed that the restricted substances located at his home on 1 June came into his possession by a variety of means - some had been left at his residence by visiting friends and relatives, some belonged to his wife, others were prescription medicines which he had tended to hoard. His wife gave a similar account.

1. The author of the report expressed considerable scepticism, noting:

"Mr MacLeod's explanations for the substances was found wanting. Important questions remained unanswered regarding the provenance and purpose of the items."

1. The author of the report also recorded that the respondent had explained the conversation of 5 May as "just a joke".

1. The psychological report to which I have referred was prepared by Dr Jacqui Yoxall. She recorded a similar personal history, including information provided to her by the respondent that Farrell was "one of his closest friends". She recorded that the respondent had explained to her also that the conversation of 5 May was nothing more than a joke between friends. She recorded that the respondent was aware of the potential of a sentence of full-time custody, and that he told her that that would have a devastating financial impact on his businesses, his staff and his family, and that his wife would be unable to manage the businesses in his absence; she said that he asked rhetorically, even if his wife took on the responsibility for the businesses:

"Who would look after our children?"

She recorded that the respondent told her that, if the businesses were lost, the costs of restarting would be prohibitive.

1. At this point it can be noted that following receipt of Dr Yoxall's report, the respondent emailed her with some corrections to factual matters in the report. Of present interest is the following:

"Substances taken from home was more than just Viagra. A total of 13 items were seized, of which 10 were eliminated by either doctors script, physician dispensed (not requiring a script) or expired medication (most expired over 6 years ago). There are only 3 items of which I may be called upon to answer to. Literally nothing in quantity."

1. Among the testimonials and references tendered was one from the respondent's wife, attesting to the history of their relationship and the businesses. She described the respondent as "the heart and soul and the driving force" of the businesses. Also included in that bundle was a letter from Ms M Jenkins, the accountant to the business. After describing in very positive terms the respondent's attention to and involvement in the businesses, Ms Jenkins referred to a recent period in which the respondent had become involved in another business on the Gold Coast which deflected his attention from the Coffs Harbour stores with the result that the Coffs Harbour stores suffered. She said that since he had removed himself from the Gold Coast business the Coffs Harbour stores had been performing better and were "getting back on track".

1. She said:

"It does concern me that should Andrew be unable to manage the business on a daily basis that its financial performance will suffer. Those relying on their jobs and the financial support of this business will suffer. The local Coffs Harbour business community will also suffer if there is another struggling business. Additionally, the value and reputation of the business will also suffer."

The proceedings on sentence

1. The sentencing hearing took place on 13 November 2012. As mentioned, the respondent did not give evidence, and no oral evidence was called on his behalf. Counsel who appeared for him both at sentence and on appeal relied upon the documentary material placed before the sentencing judge. He pointed out that the origin of the collusive agreement lay in the offer by Farrell, unprovoked and unsolicited by the respondent.

1. He made other detailed submissions, of which the following ought be noted. He made particular reference to Dr Yoxall's report, concerning the respondent's involvement in the businesses, and their viability being dependent upon his involvement. He also referred to the statement by Ms Jenkins, particularly the paragraph extracted above.

1. His Honour then said:

"Just so that I don't have any doubt about the adverse impact on both personal and if I can use a broad term, commercial that a sentence of imprisonment would have on a large number of people, that is convincingly argued in a number of the documents. The difficulty is for me is how heavily that consideration weighs in the overall determination of the sentence because generally that's not a matter of central importance in all of the issues that have to be weighed, I don't know whether the Crown would choose to say anything about that particular issue or not but it is well it's not for example a matter that is listed as a consideration under the relevant legislation, it is under the Commonwealth Act I should note, but not under the State Act and that tends to have led the court to - courts in this State to take the view that it's not a matter of central importance, but Ms Crown you're looking --"

1. The Crown replied:

"No I accept that it's a matter of mitigation and your Honour could well take that into account but eventually the Crown would say the serious nature of the offence and the absence of exceptional subjective circumstances the only appropriate sentence would be imprisonment."

1. There was then further discussion with counsel for the respondent, who submitted, inter alia, that there was no evidence that the respondent was making use of any information provided by Farrell. Ultimately, counsel submitted that a non-custodial sentence would be open, and that if his Honour considered that the offence warranted something more serious than that, then a period of imprisonment wholly suspended would "suffice to cover all of the matters" before the sentencing judge. His Honour invited the Crown representative to comment upon that, to which she replied succinctly:

"Your Honour would be falling into appellable error."

The Remarks on Sentence

1. I have already referred to some of the factual findings made by the sentencing judge. The respondent does not dispute that the collusive agreement was made in the telephone call of 5 May; nor that the collusive agreement involved Farrell agreeing to access confidential police records, and disclose that information to the respondent; nor that Farrell did in fact have that access. What was in dispute in the proceedings was whether, and if so, to what extent, Farrell disclosed the results of that access to the respondent. This was the disputed issue of fact which I mentioned in [5] above. The sentencing judge dealt with this in his Remarks on a number of occasions. At an early stage, he said:

"It was part of the Crown case, and continues to be part of the Crown case on sentence, that it can be fairly assumed that the uninterrupted conversation was one in which Farrell, having access to COPS records - and I will come back to those in some more detail later - had passed on at least some of the information which was contained in those records. But that remains a matter of conjecture, I underline, but it certainly has been something which has been raised in both contexts by the Crown and which may take on some importance for reasons I will come back to later."

Later he said:

"There is no evidence in this case of any actual benefit from the supply of information. I say that with the necessary reservation, and I will have something more to say about this in due course, that a great deal of what I will call the peripheral evidence in this case is very inconclusive. Whether Farrell ever did pass on the information to the offender which he had belatedly obtained from the COPS entries remains a matter of conjecture.

We know from the evidence, and this was one of a number of admitted facts, that Farrell accessed these entries, and he therefore had the entries available to him, and he could have passed them on, but there was no direct evidence of that ever happening."

1. With reference to the conversation with Cheyne Rogan, in which the respondent had claimed to have had "a very good hunch", the sentencing judge said:

"Again it is a matter of inference, and I make no further comment on that, but again can I say that that warning does not indicate that the offender was getting any benefit out of even that information that appears to have been passed on from Mr Farrell. It was intended, if anything, for the benefit of Mr Rogan rather than for anyone else."

Finally, his Honour said:

"The Crown's position was essentially this, that the offender, on the basis of all of the evidence available on sentence, was, at the time of the offence, and had been for some years, engaged in the possession and sale not only of restricted substances, including steroids, but probably illicit drugs. That the items found and seized during a search of his house and garage were symptomatic of a much more substantial involvement in the import, possession and sale of illicit substances. The offence in this case, the Crown therefore argued, should be assessed in that broader context."

1. Later, his Honour dealt with the substances found at the respondent's home as a consequence of the execution of the search warrant. He expressed considerable scepticism about the explanation given by the respondent to Dr Yoxall concerning these substances. He noted that the respondent's assertion that only three items called for explanation was inconsistent with the nine charges on the Form 1.

1. With respect to the respondent's personal circumstances, the sentencing judge quoted at some length from Dr Yoxall's report, and referred to the various letters and testimonials. He accepted the respondent as a person of prior good character.

1. Nevertheless, in the light of what was contained in the pre-sentence report, he found that there was no remorse exhibited by the respondent, and held that that rendered a satisfactory conclusion with respect to potential re-offending impossible.

1. He held that the offence fell at the lower end of the scale of objective seriousness, and that in those circumstances an appropriate sentence would be of imprisonment for 9 months.

1. He then turned his attention to the matter that has been the focus of the Crown appeal - the suspension of the sentence, which he said caused him more difficulty than any other matter he had to consider. He referred again to the sentiments expressed in the testimonials, but observed that the person portrayed in those testimonials was nevertheless guilty of a serious criminal offence. He said:

"That is, I have to say sadly, not unusual, a respectable member of the community engaged in criminal activity, and this is clearly an example. My concern, however, when it comes to a sentence of imprisonment, is not the offender. The offender in my judgment deserves to go to gaol and I have no reservations about that.

However, sending him to prison will, on the testimonials which I accept, cause very significant hardship, not just to the immediate members of his family, to his wife and two children; that is inevitable, but he is a businessman, self employed, with a number of employees. His businesses, according to the testimonials, will suffer considerably and will be at risk if they are deprived of his involvement. I am therefore mindful of the impact on quite a large number of people if this man is imprisoned.

It is that factor which causes me to consider very carefully whether the sentence should be suspended, and I have given this matter very careful consideration, particularly in view of the position which the Crown quite properly has taken. I have concluded only with very considerable difficulty because of the impact which imprisonment will have on a number of others, totally undeserving and with no involvement in the commission of this offence, that a suspension of the sentence is appropriate." (italics added)

1. He accordingly made the order under s 12 of the Sentencing Procedure Act suspending execution of the sentence.

The Crown appeal

1. The Crown has pleaded four grounds of appeal, as follows:

"Ground 1: His Honour was in error in finding that hardship to third parties justified the suspension of the sentence.

Ground 2: It was not reasonably open to his Honour to find that Farrell did not pass on any information from COPS entries to the respondent.

Ground 3: His Honour was in error in suspending the sentence.

Ground 4: The sentence is manifestly inadequate."

Ground 1:] suspension of sentence

Ground 3:]

1. It is clear from the extracts from the Remarks on Sentence above that his Honour (correctly) considered that the respondent's offence called for a sentence of imprisonment. It is equally clear that the sole reason for ordering that execution of the sentence be suspended was the hardship to others, particularly employees of the businesses operated by the respondent.

1. The Crown referred to a long line of authority to the effect that it is only in exceptional circumstances that hardship to third parties can be taken into account in order to reduce an otherwise appropriate sentence: R v Edwards (1996) 90 A Crim R 510. The Crown also illustrated that proposition by reference to a series of cases following Edwards in which hardship has been rejected as a basis for reduction in sentence: see Hay v R [2013] NSWCCA 22; Ihemeje v R [2012] NSWCCA 269; Bangaru v R [2012] NSWCCA 204; FP v R [2012] NSWCCA 182; Flick v R [2012] NSWCCA 170; McCraw v R [2011] NSWCCA 162; Sinkovich v R [2011] NSWCCA 90; R v Kertebani [2010] NSWCCA 221; King v R [2010] NSWCCA 202; Dipangkear v R [2010] NSWCCA 156; Waugh v R [2010] NSWCCA 3; Elmir v R [2009] NSWCCA 22; Hopley v R [2008] NSWCCA 105.

1. It is to be noted that virtually every case (Edwards excepted) in which the subject of exceptional hardship to third parties has been considered as a possible basis for reduction in sentence has involved hardship to family members. That is not this case. Although his Honour recognised and accepted that the hardship that would follow the incarceration of the respondent would affect his wife and children, he properly recognised that that is a common consequence of the incarceration of an offender. It was, as I have said above, the impact on employees and the businesses that motivated his Honour to make the order that he did.

1. Although this Court was referred to no other case in which it has been suggested that the effect on employees could be allowed to affect the sentence to be imposed, such a prospect was recognised by Gleeson CJ in Edwards. His Honour said:

"There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed ... it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment." (italics added)

1. Tellingly, the Crown submitted, the sentencing judge not only made no reference to these authorities, but he gave no indication that he had the principle in mind.

1. The Crown in the sentencing proceedings left no doubt that its position was that anything less than the imposition of a full-time custodial sentence would constitute appellable error. Unfortunately, the Crown did not explicitly state the principle, nor did she refer to any authority. The nearest she came to stating the principle was in her reference to "the absence of exceptional subjective circumstances" in her response to the sentencing judge.

1. That she did not make any such express reference is perhaps understandable, given that the principle is well established and well known and that it might not have been apparent in advance of the hearing (and even in the very late stages of the hearing), that such an order (for suspension) would be proposed on behalf of the respondent.

1. Counsel for the respondent referred to a passage in the judgment of Whealy J in Dipangkear, in which his Honour summarised the principles relevant to the question here under consideration. His Honour said:

"The present situation of the law, relevant to the present appeal, may be briefly stated as follows:-

(a) Where all the features of the particular case point to the need to impose a custodial sentence but there is evidence of extreme hardship, a court may take into account the extraordinary features of the case in any one of three ways. It may suspend the sentence of imprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased.

(b) Each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person." (italics added)

1. It is to be observed that the summary in Dipangkear of what steps are open to a court proceeds on the premise that "extreme" hardship, or "extraordinary features of the case" have been found. That is not this case.

1. Counsel for the respondent pointed only to the reference to "very significant hardship" in the remarks at the point where the sentencing judge was dealing with the possibility of suspending the sentence as indicating that he had the principle in mind.

1. I am satisfied that that does not amount to an adequate consideration of the principle stated in Edwards and subsequent cases, and does not amount to a finding that circumstances were exceptional within the principle stated. It could not have done so; the evidence was far from adequate to establish exceptional circumstances.

1. At the time the Crown appeal was heard, although the sentencing outcome in respect of Farrell was known, the judge's Remarks on Sentence were not available. They have since been released, and counsel for the respondent provided them with additional submissions in writing. The import of the additional submissions was that the judge was at some pains in those Remarks (post dating the sentencing of the respondent) to recognise the exceptional nature of the suspension of a sentence where the offending calls for full-time imprisonment. He also emphasised, as he had when sentencing the respondent, that the only reason for suspending the sentence was the potential effect on the employees of the respondent's businesses.

1. These additional remarks do nothing to change the view I had already formed, and have expressed above. First, a subsequently stated explanation for a sentence ought not ordinarily be taken into account. Second, a finding of exceptional circumstances was necessary in order to justify the suspension of what would otherwise be a sentence of imprisonment to be served in custody. There is no recognition of the need for a finding of exceptional circumstances on the Edwards principle. Third, the circumstances he took into account were not capable of amounting to exceptional circumstances within the Edwards principle.

1. In my opinion Grounds 1 and 3 must succeed. The evidence of hardship to third parties was not such as to entitle the judge to convert what he recognised ought to have been a sentence of full-time custody into one which was suspended.

Ground 2: information passed by Farrell to respondent

1. The precise terms in which Ground 2 are pleaded are set out above. It is predicated upon the factual premise that his Honour found (as a fact) that Farrell did not pass on any information from COPS entries to the respondent.

1. In my opinion, the ground as pleaded is misconceived. His Honour made no such finding. As is plain from the extracts I have set out above, his Honour was urged by the Crown to find that Farrell had indeed disclosed to the respondent relevant information. In making those submissions, the Crown relied upon significant items of evidence, most of which, being recordings of intercepted telephone conversations, were not (and could not have been) the subject of challenge. These included the exchange between Farrell and the respondent on 24 May, in which Farrell asked the respondent to provide his driver's licence number (which the respondent did) following which Farrell accessed the COPS system, and a number of intelligence reports. Another was the telephone conversation between the respondent and Cheyne Rogan, in which the respondent warned Rogan not to associate with a third party, and referred to his "very good hunch".

1. It is true that from these an inference, and a strong one, was available that the respondent was in possession of information provided to him by Farrell. Indeed, it would be very difficult to sustain an affirmative finding of fact that Farrell had not disclosed information to the respondent. However, his Honour did not make that finding of fact; he referred to the proposition of the Crown as "conjecture". Although he did not say so in terms, the only reasonable interpretation of his findings in this respect is that he was not satisfied beyond reasonable doubt that Farrell had made the disclosures to the respondent.

1. That makes the ground very difficult to sustain. In effect, the Crown would have to establish that it was not open to the sentencing judge not to be satisfied beyond reasonable doubt that the disclosures had been made; put another way, that the evidence of disclosure was so overwhelming that no conclusion other than that disclosure had been made was open.

1. While I find the judge's failure to be so satisfied a little puzzling, I do not think it can be categorised as an error in the necessary sense.

1. I would reject Ground 2.

Ground 4: manifest inadequacy

1. As argued, this ground depends entirely upon the suspension of the sentence. Senior counsel who appeared for the Crown accepted that he could not realistically seek an increase in the term of the 9 month sentence imposed. That concession has much to do with the sentence subsequently imposed upon Farrell, and principles of parity. In my opinion, that concession is overly generous.

1. For my part, I could easily be persuaded that a sentence of 9 months imprisonment is manifestly inadequate to meet the criminality involved in this offence. However, since the Crown has not sought an increase in that sentence, and the respondent has accordingly not been heard in that respect, I would not propose an increase in the sentence. In addition, as this offence is one which is (fortunately) not frequently seen in the courts, there is a dearth of judicial authority on appropriate sentencing. For those reasons, I would accept the Crown concession, to the effect that this Court should re-sentence the respondent by re-imposing the sentence of 9 months' imprisonment, but deleting the order for suspension. Moreover, senior counsel for the Crown fairly accepted that it would be appropriate to specify a non-parole period applicable to the 9 months sentence.

1. I wish to make it perfectly plain that the sentence I propose ought not to be taken as a benchmark for sentencing in respect of offences against s 200 of the Police Act. Such offences are serious, and threaten the integrity of the administration of justice. They potentially may pose danger to police sources of information, and jeopardise important investigations. My acceptance of the sentence of 9 months is based solely on the position adopted by the Crown, and that, to increase that sentence at this stage, would involve this Court in a denial of procedural fairness.

1. I therefore propose the following orders:

(i) Crown appeal allowed;

(ii) The sentence imposed on the respondent be quashed;

(iii) In lieu thereof the respondent be sentenced to imprisonment for 9 months, commencing on 13 May 2013 and expiring on 12 February 2014, with a non-parole period of 6 months and 3 weeks expiring on 3 December 2013.

(iv) Direct that the respondent be released at the expiration of the non-parole period.

1. HARRISON J: I agree with Simpson J.

1. BELLEW J: I agree with Simpson J.

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Decision last updated: 13 May 2013