R v Michael Jason Cox; R v Sharon Patricia Lucas - [2011] NSWDC 58

District Court

New South Wales

Medium Neutral Citation: R v Michael Jason COX; R v Sharon Patricia LUCAS [2011] NSWDC 58
Hearing dates: 14, 24 February, 29 April and 20 May 2011
Decision date: 20 May 2011
Jurisdiction: Criminal
Before: Judge P Lakatos SC
Decision:
See paragraphs 120 and 121

Catchwords: Sentence; Fabricate false evidence with intent to mislead a judicial tribunal; Neglect of duty; Corrupt conduct by Police
Legislation Cited: s 317(b) Crimes Act 1900,
s 201 Police Act 1990
Crimes (Sentencing Procedure) Act
Cases Cited: R v Hilder NSWCCA unreported 13 May 1992;
R v Bulliman NSWCCA 25 February 1993;
R v Nomchong NSWCCA 10 April 1997;
R v Chapman NSWCCA unreported 21 May 1998,
R v Pangallo 56 A Crim R 441
R v Irwin [1999] NSWCCA 361
R v Nguyen (2004) 149 A Crim R
DPP v Aydogan and Gosper [2006] NSWSC 558;
Kenny v R [2010] NSWCCA;
Einfeld v R [2010] NSWCCA
Texts Cited: Royal Commission into NSW Police Service
Category: Sentence
Parties: R - Director of Public Prosecutions
Offender - Michael Jason COX
Offender - Sharon Patricia LUCAS
Representation: Mr Dailly for Accused Cox
Mr Haverfield for Accused Lucas
Ms Paterson for the DPP

File Number(s): 2009/00039254 and 2009/00136783

Judgment

HIS HONOUR: In the early hours of 27 October 2008 the two offenders, Michael Jason Cox, a senior constable of police of five years standing, and Sharon Patricia Lucas, a senior constable of police of five and a half years standing, illegally entered the premises of a person they suspected of having been involved in a break, enter and steal. Two other senior constables, Brookes and Fletcher, were present at the location when this occurred. In order to cover the illegal entry the four officers agreed to concoct a false justification for the entry and the offender Cox made a notebook entry in his notebook providing that justification. All four police officers signed the notebook, acknowledging its correctness and thereby covering up their wrongdoing. Subsequently each of the officers signed an official police notebook and statements containing the false justification for the entry. Messrs Brookes and Fletcher were sentenced by Judge Norrish to an eighteen month suspended sentences in 2010. Appearing for sentence today are Mr Cox, who is now thirty-six years of age, and Ms Lucas, who is now forty years of age.

Between 1994 and 1997 the Honourable Justice Wood conducted the Royal Commission into the New South Wales Police Service and produced the final report thereafter. In Volume 1 of the final report entitled Corruption, his Honour wrote at para 2.13:

"The powers entrusted to police to carry arms, to use coercive force in the proper course of their duties and in extreme circumstances, to take lives, to inquire into personal affairs and to eavesdrop pursuant to a warrant, on private conversations, to deprive citizens of their liberty, to enter and search their premises, to seize and hold their property and to initiate proceedings that will require them to defend themselves before the courts, are very substantial powers possessed by no other class of employee. Conversely with the significance of their impact, they are most commonly exercised by the younger and less experienced officers working at street level rather than by commanders having the benefit of age and experience."

At para 2.3 his Honour referred to "noble cause corruption" which he said was better categorised as "process corruption". Relevant to present case his Honour said:

"This is the kind of corruption whereby police powers are abused, evidence is fabricated or tampered with. It is often directed at those members of the community who are least likely or least able to complain and is justified by police on the basis of procuring the conviction of persons suspected of criminal or antisocial conduct, or in order to exercise control over sections of the community."

I raise these matters not to suggest that the two offenders and their co-offenders dealt with by Judge Norrish were serial or repeat offenders in corrupt activities. There is no evidence to that effect and I do not suggest it. I raise these matters so that the New South Wales Police Service may examine the circumstances in which this incident occurred and determine whether there are steps which can be taken to properly train or educate police officers to avoid the "pragmatic approach" which apparently recommended itself to these officers.

The charge to which both officers pleaded guilty is as follows. On 27 October 2008 Mr Cox and Ms Lucas fabricated false evidence, namely a version of events as to the entry and search of premises at Wagga on 27 October 2008 with intent to mislead a judicial tribunal, namely the Local Court, in a judicial proceeding, namely the prosecution of one Matthew Prowse. That is an offence contrary to s 317(b) of the Crimes Act 1900 and carries a maximum penalty of ten years. Section 317 is contained in pt 7 of the Crimes Act 1900 which is entitled Public Justice Offences. The provision is contained in Div 2 of that Part, which is itself entitled Interference With The Administration Of Justice. The maximum penalties within the Part range from two years imprisonment to fourteen years imprisonment. This is an offence which is in the mid range of seriousness of offences contained in that Part. The most serious offences containing an element of perversion of the course of justice and as I say carry a maximum term of fourteen years.

In addition to that charge Mr Cox has asked the Court to take into account on a Form 1 an offence contrary to s 201 of the Police Act 1990, namely that he neglected his duty. That offence is as follows: A police officer who neglects to carry out any lawful duties of police officer is guilty of an offence and carries with it a maximum penalty of 20 penalty units. Both offenders indicated through their lawyers that they would enter a plea of guilty to the present charge at the Local Court. The matter went to trial initially, or was to go to trial initially, on more serious matters and in the event the Crown accepted the plea given to the lesser charge. The parties are agreed that the utilitarian value of the plea should be twenty-five per cent in those circumstances and that in effect the plea was entered at the earliest opportunity; I accept that submission.

Neither offender has spent any time in custody. Neither has any criminal history. The agreed statement of facts are as follows:

At about 10.30pm on a Sunday in late October 2008 thieves forced entry into premises at Wagga. The thieves stole a large flat screen computer, along with other electrical items. The thieves also stole a green Ford Falcon sedan which was parked in the garage of those premises. At 2am the following morning the two offenders, then Senior Constable Cox and Senior Constable Lucas, were patrolling at a reserve west of the Wagga township and observed vehicle lights on in that reserve. They observed a Holden Commodore sedan parked in the grass. Checks of that sedan provided that the registered owner was a Mr Fitzgerald of a given address near Wagga. Mr Cox approached the vehicle and saw inside the vehicle a number of items, including two wallets, two mobile phones and a live round of ammunition. At this point another vehicle approached the area before doing a U-turn and driving back into the reserve. Mr Cox radioed for assistance and he and Ms Lucas returned to the reserve entrance. The two co-offenders, Senior Constable Brookes and Senior Constable Fletcher, arrived. There was also a supervisor who attended. Police then conducted a search of the reserve and located a vehicle on fire, this vehicle being identified as the Ford Falcon taken from the site of the earlier break enter and steal.

Mr Cox returned to the abandoned Holden Commodore and removed mobile phones and wallets belonging to the offenders. The owners were identified as Mr Prowse, the subject of the present charge, and three other identified persons. Mr Cox gave the mobile phone belonging to one of the persons to Mr Brookes who passed it on to Mr Fletcher. Messrs Brookes and Fletcher examined the phone and observed a picture of a flat screen television in front of a red lounge on a photograph stored in that phone. Later that morning Cox and Lucas attended at the home of Mr Prowse senior, that is to say the father of the suspect. No person could be raised at the house. Mr Cox and Ms Lucas looked through the window, saw a flat screen television which they recognised as being the one photographed on the relevant telephone. Messrs Brookes and Fletcher attended at the site of the break and enter where, after contacting the owner's son, Messrs Brookes and Fletcher met Mr Cox and Ms Lucas at an agreed point in west Wagga Wagga. In general conversation Mr Fletcher produced the photograph on the phone indicating the flat screen television which had been stolen. Ms Lucas indicated she recognised the television and the lounge in the photo as being that which she had observed at the premises of the suspect, Mr Prowse.

A little later on that morning the four officers returned as a group to that location. Upon arrival Mr Cox removed a key from Mr Prowse's wallet to access the premises. This was seen by the others, that is the four officers. Mr Cox made a radio call falsely indicating that noises had been heard in the premises and police were going to enter because of that. He used the key to unlock the door and gain entry. Each of the four officers entered the house and conducted a search of the premises identifying a firearm, a television set and a red lounge as seen in the photograph on the phone. The four officers left the house, before doing so the four officers entered into an agreement to present a unified fabricated story to cover the unlawful entry of the search of the suspect's premises. This story being they had found the front door to be opened and heard noises inside which necessitated the need to enter the premises. The fabrication involved the preparation by Mr Cox of an entry in his notebook containing the false version, signed and adopted by the four officers, and a subsequent creation of consistent police statements from each of the officers containing that false version.

After the four officers left the house a further two unconnected officers attended at the premises and formed a guard at the crime scene pending other investigators' arrival. In the early hours of that morning a further police officer and other police attended and a search of the premises took place. During that search certain stolen property, a firearm and other material were located. That search was video recorded as is the protocol. One of the police officers who attended the premises subsequently was given charge of the investigation of the items located and seized during the search.

At 11.20pm on the night of 27 October a suspect, Matthew Fitzgerald, was arrested. Whilst in the process of charging the police officer I adverted to, completed a fact sheet which contained information that the attending police had seen offenders running from the premises of the suspect Mr Prowse and jumping the back fence. The police officer charged with the preparation of the facts included these in the facts as this was described to him by Mr Brookes. That officer showed Mr Brookes the completed fact sheet to verify its contents given that the officer who was preparing the fact sheet was not present during this part of the incident. Mr Brookes read the fact sheet and confirmed it was correct. Shortly thereafter Mr Cox approached the officer who was preparing the fact sheet and told him that his fact sheet was incorrect, and they had not seen anybody running out the back of the premises. At this time Mr Cox and Ms Lucas told that officer that they had heard noises in the premises, indicating to the officer that they had entered the house because there was a break and enter in progress. According to that officer Mr Fletcher said, 'I don't want to have any part of this, don't put my name on any of it. I don't want to be on the fact sheet or any part of this. I want no part of it', and he walked out with the shits.

Some two days later another police officer attended the home of Mr Brookes in relation to another matter. Whilst speaking with him he raised the issue of this suspect, Prowse, being arrested two days previously. Mr Brookes disclosed to that police officer what had actually occurred on the morning of Monday 27 October.

Due to the information supplied to these two independent police officers investigators attached to the covert investigation of the Professional Standards Command commenced an investigation into the actions of the police which occurred at Mr Prowse's house on 27 October 2008. A number of telephone intercepts and listening devices were lawfully obtained which allowed the investigators to monitor the conversations of the two present offenders and Mr Fletcher and Mr Brookes, those dealt with by Judge Norrish. On the evening of 4 February 2009 a phone call was intercepted from Mr Fletcher to Mr Cox which ran as follows:

"MR FLETCHER: So you're worried about nothing.

MR COX: Pretty much.

MR FLETCHER: So here you were thinking I'd gone loopy and spilled the beans.

MR COX: Yeah - no, no, no, not you. Like they were spilt sort of thing.

MR FLETCHER: No, I think we have a pretty close tight-knit group, I don't think anyone is going to compromise that.

MR COX: I don't think so, mate.

MR FLETCHER: I wouldn't sweat that at all."

Some two days later a further telephone call was intercepted from Mr Cox to Mr Fletcher during which the following conversation took place. Mr Cox said to Fletcher:

"MR COX: So I said to Shaz, well, we're going to do a brother is - when we do get a court date, the night before we'll get together, have a beer or whatever and get our statements and make sure we're kosher.

MR FLETCHER: Yeah, yeah.

MR COX: I think that's a very sensible thing to do.

MR FLETCHER: I'm not sweating it.

MR COX: No, fuck, I'm not either, like fucking--

MR FLETCHER: We're airtight, mate, we're airtight."

On 11 February 2009 the four offenders, including the two before me, and a number of other police attended the Wagga Local Area Command where they were individually spoken to by senior police officers. Each officer was informed of the allegations of improper police action and formally cautioned. Each declined to participate in a formal interview.

On 17 February 2009 Mr Cox attended at the Wagga Local Area Command and was arrested and cautioned. He was introduced to the custody manager and declined to speak with police in a formal interview. On 18 February 2009 Mr Cox voluntarily attended at the Wagga Police Station and participated in an electronically recorded interview. He made admissions as to the unlawful entry by use of the key, of the search and the subsequent cover-up of these actions. This included making a fake radio call to make the events look like a break enter and steal offence. Mr Cox also made admissions to being aware that drugs had been moved from outside the premises into Mr Prowse's bedroom, although he could not say how he came to know about this. The latter matter is the subject of the Form 1 offence.

On 17 February 2009 Ms Lucas attended at the Wagga Police Station, was arrested and cautioned. She was introduced to the custody manager and declined to participate in an interview. The following day she attended at the Wagga Police Station and participated in interview making admissions as to her improprieties.

The facts note, and as I have indicated, Mr Fletcher and Mr Brookes, each of whom were also senior constables, pleaded guilty to one count of fabricate false evidence, and were sentenced by his Honour Judge Norrish on 16 April 2010 to a suspended sentence of one year and six months.

I make the following comments about the facts. I accept that the decision to enter into this corrupt conduct was not pre-planned as Judge Norrish did. I am prepared to accept that the conduct on behalf of all the officers was precipitated by a desire to arrest what they considered to be known perpetrators of a number of criminal offences. There was no explanation advanced by either Mr Cox or Ms Lucas as to why the proper processes could not have been followed because it seems plain that they believed that they were at the perpetrator's house, that there was no little or no chance that the evidence would be destroyed as they could have stayed at the house pending a telephone search warrant or a search warrant having been obtained. The perpetrators in the present case may well have been local persons known to police officers and may have had a criminal history of some substance. One is left to wonder whether or not the illegal conduct would have occurred if the targets were prominent or well-heeled citizens because, as Woods J has observed in the comment that I have earlier referred to, most often corrupt conduct is carried out against citizens of dubious integrity who are less likely to complain about the conduct.

Mr Cox, and to a lesser extent Ms Lucas, committed the following illegal or improper acts. Firstly, Mr Cox made a false radio call to justify his proposed entry into the premises. Secondly, they illegally entered the premises. Thirdly, before leaving the premises all of the officers entered into a unified agreement to fabricate a story to cover-up the unlawful entry and search. It was argued on behalf of the offenders, and Judge Norrish accepted, that the initial agreement was spontaneous. That may be so but unless those suggesting the illegality were aware that the other officers were likely to agree, they ran a serious risk not only that the other officers would not participate but also that they might well report the improper conduct to their superiors. Given the short space of time in which the agreement was entered and that both officers by reason of seniority and experience were likely to be aware of the risk that they ran, I doubt that the notion of improper conduct arose then and there spontaneously. Absent evidence there are a number of possibilities. Firstly, that the offenders have acted this way before. Secondly, that the pragmatic and unlawful conduct had been discussed previously. Thirdly, that there was a culture which existed amongst these officers which gave tacit support for such illegal conduct. To erase the prospect of an illegal entry and falsifying statements for the first time without warning, ran a risk of such proportions that I find it difficult to accept that it occurred in that way.

In my opinion and for reasons later expressed the Police Service should carefully examine the circumstances in which this offence came to be committed. Of particular concern is the fact that in a short space of time, not one or two but four comparatively senior police officers agreed to act corruptly. That may be a coincidence, but in my view it warrants a closer examination. The fourth matter is that Mr Cox prepared a false notebook entry. The fifth is that Mr Cox, Ms Lucas and other offenders signed off on that entry. The sixth matter is that each of the officers created a consistent police statement containing a false version, and finally in relation to Mr Cox, that he neglected his duty by failing to report another instance of corrupt activity namely the movement of drugs from outside the premises into the suspect's bedroom by an unknown police officer.

In some respects such an analytical way of viewing the offence is artificial. In a real sense it was an unlawful entry and a subsequent cover-up. It does however show the extent to which each of the officers was prepared to go to cover up the impropriety.

In relation to the other co-offenders, Mr Brookes and Mr Fletcher, it appears, according to the remarks from Judge Norrish, that both appear to have had misgivings about what they had done shortly after the event. In the case of Mr Fletcher he indicated to an independent police officer that he did not wish to be associated with a false fact sheet. In the case of Mr Brookes, he disclosed to an independent police officer what actually occurred at the premises of Mr Prowse.

The subsequent telephone calls between Messrs Cox and Fletcher on 4 and 6 February disclosed that some months after the event, at least those two officers were willing to continue the impropriety and to hold the line, including a tentative arrangement the officers should be involved in a scrum-down in relation to the evidence that they would give. At this point in time Mr Cox displayed no insight into the illegality involved. In this regard the sentiments expressed by Mr Cox and Ms Lucas to the probation officer are inconsistent with any insight about illegality in which they had been involved. In my view this fact at least raises questions about whether the police on the ground have a proper appreciation of their legal obligations and whether there is a culture which justifies illegal practices when those considered guilty are being dealt with.

There was in the defence case material led to suggest that there had been gunshots and gunshots directed at the police officers as to which caused them certain fear. There is no doubt reference in the statements of the four officers as to gunshots at the reserve. There is, however, no reference in the false notebook entry of Mr Cox. The references in the statements are couched in terms of doubt as to whether they were gunshots, none of the material suggests that the gunshots were directed to or near the police officers. Accordingly, whilst I am prepared to accept that there may have been gunshots, I do not accept that Mr Cox and Ms Lucas were in fear for their safety and that motivation was a driving force in this particular offence. Indeed there is no indication in the remarks of Judge Norrish that Messrs Brookes and Fletcher either were placed in fear of any gunshots which were allegedly directed towards police officers.

There was a quantity of material adduced in the cases for both offenders. There was a Probation and Parole Service report in relation to Ms Lucas. I will deal with her material initially. Ms Garroway. who is a Probation and Parole officer, prepared the report on 19 January 2011. The report notes Ms Lucas' personal history. She was married at twenty years of age, has been married for eighteen years and has four children. The relationship, according to Ms Garroway, was characterised by verbal and emotional abuse. She was at the time of this offence a sole parent with two younger dependent children, one in high school and one in primary school. She was educated to Year 12 in Brisbane, has tertiary qualifications in aged care and policing and has been employed with the New South Wales Police Force from 2002. I understand that both the officers are either now suspended or have resigned from the Police Force. She takes medication to assist with anxiety related illnesses, she regularly consults a psychologist. She is somewhat isolated in Wagga. Apart from her family and children, her previous social life was centred around friends in the Police Force. Ms Garroway noted that Ms Lucas was frank in stating that in hindsight she was fully aware that her behaviour had been totally at variance to those values of truth and integrity to which she had aspired. She stated that all her training up to that point had emphasised honesty as being a supreme character trait and her family, education and background as well would build upon that core value of truth.

"She remarked that against her better judgment she participated in what was a procedural shortcut which she knew was not permitted. She related that at the time it didn't seem to be other than a speedy way to establish proof of criminal activity by which a satisfactory legal outcome would be facilitated. She said that in hindsight she could not other than admit that her behaviour was a disgrace to herself, her family and to the police force. Accordingly she regretted very much the effect it has had on the reputation of the police force and those colleagues who would be dishonoured by that deception. She has reflected at length on the far reaching consequences of her unlawful actions and is ashamed of the consequences resulting from her aberrant behaviour."

Two witnesses were called on her behalf. Mr Phillip Carrington George was a sergeant of police for twenty-three years and gave evidence on her behalf at Wagga in his private capacity. He said that he had had contact with Ms Lucas for a long time. In 2003 he and Ms Lucas were in the same police cluster which was in the Tumut/Gundagai area. He was a highway patrol supervisor and she was a probationary constable. He had no direct supervisory role over her but they interacted daily as they both lived in Tumut. He told the court that she was an older recruit and they became good friends, he gave information about her nursing background and the background of her husband. He said that both families had similar interests and they often mixed socially. Ms Lucas' husband was a hard working man, they had well managed children and she was a wonderful mother. Mr George said that they both socialised in Tumut in the course of work and once one was moved to Wagga they met once or twice a year. He recounted an incident which occurred in Tumut in February 2004 in which Ms Lucas was in a police vehicle as a passenger, the police vehicle reversed over an elderly pedestrian. She came upon the pedestrian who had suffered severe injuries and subsequently died. Mr George recounted that after that incident a number of significant changes occurred in relation to Ms Lucas. There was an internal investigation and a Coroner's hearing. These events, said Mr George, destroyed her confidence and he suspected caused her psychological damage. Mr George said that she found policing difficult, that she started out as a bubbly happy person and on his assessment was too nice to be a police officer. He said that the time management was very bad and she found it difficult to make sound or positive decisions straight up. In 2004 she had a child. She had time off and found it difficult to travel to Tumut. She was transferred to Wagga in 2006 and he had little contact with her after that point of time.

In relation to the present offending he said that he was aware of the charge and was very disgusted by it. Ms Lucas spoke to him about it and reported about not having followed the correct procedure compared with the legal requirements. The precise references in Mr George's evidence as to how he characterised the conduct is as follows and this is taken from a transcript of his evidence. He referred to initially the fact that police officers have "rules of engagement, rules of our job" and he characterised this as a breach of those rules as simple as that. He later said that in speaking with her he explained it in this way. He said:

"If you go outside those guidelines, we obviously jeopardise the case. As a shortcut I think it was probably more of laziness and stupidity in probably not realising what the correct procedure should have been or what they should have followed".

He said that:

"I don't think initially after she was charged she understood the full ramifications of probably what took place. Probably in terms yes it was a shortcut and obviously it transpired into an investigation but probably even today's reinforcing the gravity of what actually did happen and how that would be viewed. So I don't think at the time either of these two people involved would have believed that it would have got to this point."

He further said:

"So it's really probably a personal choice if people go outside the rules of how we do our business, they are quite clear and quite succinct."

And he said that he thought that this way of doing business, if I can use that term, he had not come across in many instances in his career. To complete Mr George's evidence, the effect of it was that she lacked decisiveness in his view as a police officer, she lacked confidence and in effect she was a follower rather than a leader.

Going to Ms Jones' evidence, Ms Jones said that she met Ms Lucas in 1993. Ms Jones runs a business in Wagga and has done so for six years. They became very close friends. She was also aware of the effect of the death of the elderly pedestrian on Ms Lucas and in fact observed very similar changes that Mr George had done. Ms Jones said that Ms Lucas is now more of a homebody, she is quiet and withdrawn, she is more home orientated, her group of friends have shrunk. In relation to the offence she said that she believed that Ms Lucas thought: "She had not done the wrong thing at the time." There was much discussion about this because Ms Jones, as a loyal friend would do, indicated she was there to help her friend. They started to talk about the incident and Ms Lucas said exactly what happened and stated that she had done the wrong thing by making a false statement. Ms Jones noted the effect of the extensive adverse publicity on Ms Lucas, so much so that Ms Lucas could not go anywhere, not even to a secluded coffee shop. She was very embarrassed and humiliated by being seen in public in Wagga.

The events were covered by the media in the six o'clock news and on the front page of the local newspaper, the Daily Advertiser. Miss Jones observed changes both in Ms Lucas and her family. The elder son has now moved to Melbourne in order to avoid some of the fallout.

There was tendered in the proceedings for Ms Lucas the psychological report from Mr Sam Borenstein dated 3 April, 2011. In it Mr Borenstein records that Ms Lucas was involved in a protracted court matter with Mr Prowse,

"A well known criminal in the area of whom she was terrified. She says that on the day of this offence another car drove off and a weapon was discharged in their direction. She says that she and Mr Cox were instructed to go to Mr Prowse's house. She said she felt fearful and claimed that she was beside herself at that time.

She said that whilst at the house she heard a noise believing it was Mr Prowse and she became acutely fearful and other police were present and they believed there was reason to enter the house."

This is the history she provided Mr Borenstein. She said there was a discussion as to how to enter the house because no-one wants to kick a door down. She entered the house and Ms Lucas claimed she was:

"In an acutely fearful state, she was mindful of having been shot at. She thought Mr Prowse was capable of doing anything."

She was then in the throes of marital breakup. She was caring for her infant son. She had commenced a relationship with Mr Cox. She was overwhelmed by the situation being the only female amongst male officers and was fearful of Mr Prowse. Upon return to the police station there was some doubt as to whether they should have used the key to enter the premises but she expressed a confident opinion that it was okay to do so. She was then off on sick leave for some six weeks and she says that she largely copied her statement from the other police statements.

I note that she has not reported in the report to the psychologist any material about signing off on the false notebook entry made by Mr Cox. She called in aid a number of factors to explain her behaviour. The alleged shots at police, her fear of Mr Prowse, her being the only female officer present and her merely being led by others to make a false statement.

I do not accept that the police were shot at. I am not convinced that any fear she had from Mr Prowse motivated her actions that night. Indeed on one view her apprehensions about Mr Prowse may support the notion that she was out to get him as a form of retribution. It is difficult to accept that, given that she was with three other police officers, she feared for her safety from Mr Prowse at that time. In my opinion her reference to being the only female police officer present appears to be a convenient ex post facto justification for her illegal activities.

Her marriage ended in 2009 according to Mr Borenstein. She then commenced a relationship with Mr Cox which formed a significant amount of guilt in her. That had been going for four weeks before this incident. She recounted that at about a month after she had moved to Wagga she became involved with Mr Prowse who committed a serious assault. Mr Prowse pleaded not guilty and intimidated Ms Lucas and other witnesses. He is allegedly connected to bikies. He was eventually let off in court proceedings. Mr Borenstein recounts her personal details in this respect.

Her parents separated when she was seventeen. She attended a Catholic college until Year 12. She became pregnant after completing high school to her boyfriend. It appears that her husband had a sexual relationship with a younger sister and was charged in relation to that and that has had a significant impact upon the fragility of her relationship, but notwithstanding that, she stuck with her husband.

She was trained in bar work, did aged-care nursing and joined the police service in 2002. The offences, Mr Borenstein noted, attracted media attention in the Wagga area. She was initially suspended without pay for some two years and has subsequently lost her real estate job because she could not pass a criminal check.

She continues to exhibit symptoms of both depression and anxiety and has been referred to a psychologist in Wagga and has had three consultations. She presents as mildly depressed, she was an open and honest historian.

Mr Borenstein noted as follows:

"That leading up to the day in which the events unfolded, Ms Lucas was under considerable stress and pressure with symptoms of both depression and anxiety."

He made reference to her dissolving relationship with her husband and her new relationship with Mr Cox. She identified a turning point involving the motor vehicle accident in 2004 and I will not repeat that.

Mr Borenstein referred to the various stressors; her husband's sexual relationship with her younger sister, the birth of her son with a significant health difficulty, the motor vehicle accident in 2004 and her relationship with Mr Cox and stated and I quote:

"Such cumulative life circumstances impacted on Ms Lucas's mental state at the time of the offence. The decision to copy her co-offender's statements when she returned from six weeks sick leave was determined by her mental state defined by depression and anxiety."

She was placed under great pressure to provide a statement. She copied other statements even though she knew the facts were not accurate with regard to entering the premises in the way they did.

He made reference to the protracted matter involving Mr Prowse and its psychological effect upon Ms Lucas. He said and I quote:

"She was in the throes of an adjustment disorder with mild anxiety and depressed mood at the time of the offence and when she decided to go along with the statements prepared by her colleagues and Ms Lucas was not in the frame of mind to disagree with her male colleagues, particularly disagreeing with Michael Cox with whom she was negotiating a relationship at that time."

He notes that she feels isolated and marginalised in Wagga, has difficulties obtaining employment and remains affected by the adjustment disorder with mixed anxiety and depressed mood.

She expressed genuine guilt and remorse for her actions and felt deep shame for what she had done. Mr Borenstein concluded the various factors "interfered with Ms Lucas's ability to stand up against fellow male officers and assert herself with a working partner, Michael Cox."

As I have observed, Ms Lucas did not give evidence in the sentencing proceedings. Accordingly all the matters relied upon by the psychologist have not been supported by sworn evidence. The impression conveyed by the version in the report is at odds with at least a version given to the Probation and Parole Service namely that Ms Lucas thought there was nothing wrong in what was being proposed at the time. I am prepared to accept that Ms Lucas may have been under personal stress by reason of her personal circumstances. However, I do not accept that she was in any sense anything less than a willing participant in this criminal enterprise. I think it more likely that she acted because she thought that Mr Prowse was a criminal who should be brought to book and that she should support her colleagues in achieving that end.

I do not accept that she acted out of fear of Mr Prowse given that she was with three colleagues and whatever fear she may have had, it was not likely to affect her in that circumstance. She may well have been a weaker individual than the other officers involved, but in my view she was a willing participant in the offence.

There were a number of character references tendered on her behalf. Her son gave an undated reference in which he acknowledged that she was the primary caretaker of his five year old brother. He gave, I think, a very clear picture of the fact that his mother he considered was not only a good and proper and dedicated mother, but she was undertaking her role as primary caretaker in an exemplary fashion.

Miss Kelly Jones gave a written reference dated 22 February, 2011 and Ms Lucas's daughter also gave a reference which indicated the impact that any imprisonment would have upon, not only the offender, but her family.

Mr Wayne King the National Operations Manger of the BOSS Operational Security Service gave a reference of 16 December, 2010. He said in that reference that he has known Ms Lucas since 2006. She is extremely professional and capable. She would often go beyond her duty of care as a police officer to assist others. He remarked upon her integrity and truthfulness which he said were beyond reproach. Mr Craig Glasson, who is the principal of Glasson's Body Works Pty Limited, provided a written reference of 23 February, 2011. He stated he has known the offender for about twenty years. She was a fun, happy and social person. She was extremely professional and had an amazing rapport with people. The offender worked with Mr Glasson after the charges had become known and he has had no cause to doubt her integrity or honesty. Subsequently she was employed on a full-time basis. He considers that this offence was very much out of character, committed at a time when she was under a great stress and resulted in Sharon making a silly decision to sign an incorrect statement.

Finally, Mr Robert Thompson, who is the stepfather of Ms Lucas provided a written reference of 22 February, 2011 in which he outlined the stressors on her. He says that she is dedicated, hardworking and that these matters have been devastating and she suffered significant personal hardship over the past few years.

I should say that I accept that the effect on both offenders - and I will advert to the material in Mr Cox's case - has been shattering. I have no doubt that that is so. I should say at this stage that I also accept that the likelihood of reoffending is nil or minimal in relation to each of them, and to that extent, I accept without question the character references and for that matter, the references in all of the material as to how these matters have affected both offenders.

Moving then to the case for Mr Cox. There was tendered on his behalf the report of Dr Katie Seidler of 14 April 2011. In Mr Cox's case there was also a Probation and Parole Service report, which I should advert to firstly, by Ms Garroway of 20 January 2011. That report summaries the following material; Mr Cox has two sisters, he was reared in a stable home, he was separated from his wife and has three children by that relationship. They were educated locally in Wagga. He considers that his parental duty would be of the paramount importance to him. He attended independent schools, he gained trade qualifications as a fitter and machinist, before teaching that and associated subjects in Western Australia. He joined the Police Force in 2003. Ms Garroway noted that during the interview he was guarded in his replies but put that down to a reticence influenced by his police training. Ms Garroway recorded:

"He did nominate that even after considerable soul searching he was unable to pinpoint the precise reason why he acted contrary to regulations. He stated at the time of the offence he firmly believed he had the power to enter the residence since he thought the offender was present within. He admitted this pragmatic attitude was the driving force behind his actions at the time."

I comment about that, that it is difficult for me to accept that he honestly held this belief. If he did so there would have been no reason for him not to record the true facts in his notebook rather than giving a false account. If indeed he did believe that the offender was inside the premises, even if that was a mistaken belief, an honest police officer, in my view, would have recorded that fact. Ms Garroway continues:

"It was sometime before he could face the fact that his own behaviour in bypassing the departmental protocols which were set in place, was illegal and contrary to all regulations, no matter for what reason of expediency. By that time it was too late, his notebook entry had been written."

My comment in relation to that matter is this; that if the terms "this pragmatic attitude" or "contrary to regulations" or "and bypassing departmental protocols" were the offender's language, it in my view shows a serious lack of insight as to the breach of law which was involved. That breach involved an officer who was sworn to uphold the law, breaching the law on the basis that the end, that is the arrest of a person he believed was guilty, justified the means. It is often said that the true mark of a civilised and fair system of justice is the manner in which it deals with those who are guilty. It is a short step to compromising the whole system to justify a breach of the law by a police officer on the basis that the suspect was guilty and deserved such treatment.

Ms Garroway concludes the report by saying that:

"The offender is thirty-six, he was proud of his position as a police officer, the goals of which he respected and his mission statement he aspired to fulfil. He is aware of the long term ramifications which will follow upon court proceedings."

Moving then to Dr Seidler's report. Dr Seidler recounted the personal history of the offender. She indicated that he is the younger of two children, his parents broke up when he was young, the children remained with their father. He was visited by his mother and at the same time he was being physically and sexually abused by his mother's partner. He became very fearful of his step-father. His mother ceased contact with the step-father after the abuse and initiated contact with him when he was in his early twenties. His father was apparently a manager in a hydraulics company, as well as many other things, and the offender has had a great deal of respect for him. He remarried when the offender was about four years of age and there was a daughter born to this union. The childhood and the family experience were quite difficult. He left home when he was sixteen years of age, wanting his independence. He attended four different primary schools due to family relocations. He was targeted at school because he was taller than average. He went to a single sex Catholic school. He there became to achieve academically. He played competitive rugby and completed his schooling until Year 10 and obtained the school certificate. He left school, obtained a number of apprenticeships, went to and completed a number of TAFE certificates in mechanical engineering and other certificates. He also completed a Diploma in Police in Practice and is currently studying a small business management course. After a number of jobs he relocated to remote Western Australia where he worked in school building maintenance and also as a trade teacher. He returned to New South Wales and after twelve months joined the Police Service in about 2002. He considered it to be the best job he ever had and spoke with pride and affection about it. He was distressed and upset about having to leave the Police Force. Presently he is working as a manager in a concreting business three days a week. He acknowledged to Dr Seidler several formal complaints being made against him by other police officers whilst a police officer for seemingly minor infractions of the rules. He told Dr Seidler that the complaints were commonplace and did not represent serious concerns about his conduct. He is in good health, he has had anti-depressants prescribed to him. He stated he mixed easily with others but since being charged had become more isolated and withdrawn socially. He was married at twenty-one years of age; his wife he described as controlling, he admitted he neglected his wife due to his job and they separated about six months prior to this offence. He has three children aged eleven, eight and four years and maintains regular contact with them. He became involved in a relationship with Ms Lucas, and that has lasted several years, and he has said that that is a significant relationship. He acknowledged his involvement with these offences and told Dr Seidler that he and the officers had been shot at. He told Dr Seidler that he "second guessed himself and questioned his colleagues about whether they required a search warrant". He "alleged the more senior officers suggested they fabricate the account in his notebook to suggest that the door to the premises had been open when they arrived." He reflected on why he offended on many occasions since that time. He believes "that he had been fearful and somewhat scattered after being shot at earlier that evening, in addition to which he was annoyed with the offender for stealing the property of elderly victims." He "wanted to bring an end to the offender's behaviour as he knew this person quite well, and had observed an escalation in his offending". He also failed to question the authority of his senior officers when asked to write a different version of the event in his notebook, as he did not want to look "weak" or "pompous" in front of those people. He became visibly tearful and upset when describing the effect of these offences on him.

Relevantly, Dr Seidler concluded:

"It appears that his behaviour is best understood as the aberrant judgment of a somewhat socially fragile individual who looked up to his superiors unquestioningly (as I believe he was encouraged in the police service) and who was shaken up by being shot at earlier that evening, as well as feeling umbrage on behalf of the elderly couple who had apparently been robbed by the suspect."

Once again I note that Mr Cox did not himself give evidence and I have difficulty in accepting many aspects of the version he provided to Dr Seidler. In particular, if credence was placed upon all the versions advanced by all four co-accused, none of them was the person primarily responsible, but other unnamed senior and/or male officers were the principal culprits. It is difficult then to discern what the true facts were and, more importantly, it calls into question whether the accused were genuinely contrite and prepared to accept responsibility for what they have done.

There was a number of character references which were tendered on behalf of Mr Cox. There was the reference by his ten year old daughter and of course it speaks with great affection of her father, and it speaks well of his role in that relationship. Dr Peter Knight, the family general practitioner deposed on 21 February 2011 that Mr Cox's three year old son had a benign growth on his left wrist which requires an operation. Mr Mark Riley, the Director of PreCast New South Wales, says that he is aware of the charges, he employed Mr Cox for approximately six months as the manager of his business; he has found Mr Cox to be upfront and honest. He is reliable, honest and a hard worker, interacts well with the staff, he is an integral part of Mr Riley's plans for his business.

Ms Marilyn Bostock, who is the Principal of the Wagga Adventist Primary School, in a reference dated 28 January 2011 has said that Mr Cox was a Board Member and Chairman of the school. Ms Bostock says that in that role he displayed integrity and wisdom. He supported Ms Bostock, he readily volunteered to assist when he was required, his work ethic and intentions were honourable. Mr John Rapley supplied a reference and said that he has known Mr Cox for about twenty five years. They are long- standing school friends. Mr Rapley says that Mr Cox is an excellent father, he is trustworthy and an honest friend and he considers this to be an isolated incident.

The offender's estranged wife, Ms Danielle Cox, gave a reference in which she says that her husband is kind and compassionate, they are presently separated. She outlined the devastating effect that these offences have had on him. She spoke of the financial commitments of the last two years and the difficulty in meeting mortgage repayments. Pastor David Kelsey wrote a reference of 20 February 2011 in which he states that he has known Mr Cox for about ten years. Mr Cox worked voluntarily in the capacity of a youth leader and school board chairman. He was an ideal role model to young people. He was entrusted with large sums of money and was always honest and trustworthy and expressed deep remorse. Mr Paul Bogacs provided a reference of 26 November 2010. He is a counsellor and psychotherapist and confirms that he saw Mr Cox for fourteen sessions between May 2008 and December 2008. Mr Cox was extremely distressed over what was occurring and Mr Bogacs said he was suffering from symptoms consistent with both depression and anxiety. Mr Bogacs believes his error of judgment was not typical of his normal behaviour or his attitude to the laws, guidelines and procedures governing the work of a police officer. Finally, Mr Brett Hawkshore, a police officer with some thirty years experience and honourably discharged from police service, has provided a reference in which he says that he has shared accommodation with Mr Cox in 2006. He judged him to be a hard working police officer who carried out his duties in an ethical and efficient manner and saw nothing unethical about the way he conducted himself.

Moving then to the features in s 21A of the Crimes (Sentencing Procedure) Act it appear to me that these are the common features for both offenders. The offence was committed in company, clearly enough. Both offenders, in my view, abused a position of authority. Next, in my view, the offences involve a series of criminal acts including illegal entry. I have considered whether or not this was part of a planned or organised criminal activity. There is no doubt that the cover up was or could be so described, but, in my opinion, given references and the authority to which I have regard, the initial act of falsifying the notebook entry and the consistent police statements, were done in a spontaneous fashion, albeit in the background that I have said. In my view the actual act was spontaneous; whether there was a culture as I have indicated, is a matter for question.

Going to the mitigating circumstances; of course both offenders have no previous criminal history. Both are persons of good character and it might fairly be said, particularly Mr Cox, has had an immense amount of community service directed towards his church and his school. That must stand significantly in his favour. However both, of course, are people of exemplary character prior to this and have led law abiding lives.

As has been referred to in authority to which I will advert shortly, it is one of the tragedies in this sort of offence that in most cases the persons who commit them have had an unblemished history, are people who are capable, and are people who have contributed to society and could have continued to contribute had not these offences occurred. Clearly enough, I consider that both offenders are unlikely to reoffend. Clearly enough, I believe that both have good prospects of rehabilitation. The truth of the matter is, of course, that, in my view, I do not believe that they are likely to offend in any similar way such as this.

On the issue of remorse, I have gone backwards and forwards on that matter. For reasons which I will explain, I do believe that both are genuinely remorseful and contrite, notwithstanding the issues that I have raised and the questions that I have raised. I have, on the one hand, the versions they have given to the Probation Officer and to the psychologist, which I have considered to be, in some respect, self-serving and I do not accept. On the other hand, in relation to both of them, there have been a raft of both eminent and non-eminent people - I do not say that pejoratively - who have given character references which speak in exemplary terms of, not only genuine contrition, but of the character of both persons,. In my view I give them the benefit of any doubt. In my opinion I am prepared therefore to believe what those that know them say, namely that they are genuinely contrite and in my view that needs to be accepted.

Of course both pleaded guilty and for reasons which I have said it is a plea at the earliest opportunity, and I consider that a twenty-five per cent discount should be applied.

I have had a regard to the authorities which were provided to me and in my view, notwithstanding the length of these comments, it is apposite to refer to refer to some of them. On 13 May 1993 in the decision of Queen v Hilder, a matter which dealt with the common law offence of perverting the course of justice committed by a sergeant of police in assisting an offender from being arrested - by the way, that officer being sentenced to a fixed term of penal servitude of three years and seven months - his Honour Justice Wood noted as follows:

"This is a case involving seriously corrupt conduct by a police officer in the performance of his duties. That kind of conduct must attract a significant custodial sentence because it amounts to a breach of trust and authority and is such as to harm the reputation, morale of honest police officers. It remains, of course, appropriate in any case involving a person holding a public office, to take into account the loss of reputation and employment and also, where appropriate, the loss of pension or superannuation benefits."

On 25 February 1993, the Court of Criminal Appeal in Queen v Bulliman, dealt with a civilian who pleaded guilty to two counts of making false statements.

His Honour Justice Abadee at pages 6 and 7 indicated:

"Where such persons are brought to justice they must be severely punished and this is irrespective of whatever be the outcome of the proceedings in which the false evidence was given."

I pause to stress that particular sentiment, because in relation to the remarks that Judge Norrish handed down last year, with great respect, I agree with the great majority of what his Honour said but a number of matters to which I will make reference, I am unable to agree, and I think that was one of those that his Honour made reference to. Justice Abadee referred to the false evidence as striking at the whole basis of the administration of justice.

The next case was R v Nomchong in 10 April 1997 involving a police sergeant attempting to influence a junior police officer not to charge a person involved in a motor vehicle accident. The Court of Criminal Appeal quashed a term of periodic detention and imposed a full time custodial term. Justice McInerney noted, particularly at pages 9 and 10 that:

"Police are in a position of authority and trust in the community and the public depends upon them to uphold the rule of law."

His Honour at page 13 took into account the fact that those officers have lost their careers after thirty years in the police force, that that officer had lost certain of his superannuation entitlements, that he had been disgraced in the eyes of his associates and his Honour recognised that when serving a custodial term, an ex police officer would undergo a more harsh custodial circumstance.

In R v Chapman, unreported 21 May 1998, the Court of Criminal Appeal dealt with a serving police officer who was convicted in respect of a charge of making a false statement on oath. He was the subject of a charge under the National Parkes and Wildlife Legislation, and in the course of that gave false evidence on oath. Ultimately the Court of Criminal Appeal was firmly of the view that nothing less than a full time custodial term was called for but declined to interfere with the decision of the primary judge for other reasons. Relevantly Simpson J said that whatever the effect on the proceedings was, that that did not affect the seriousness of the matter. In other words, the falsity need not have had an effect for the offence to be a grave one. Her Honour also stressed that the loss of employment and substantial financial loss which resulted from that officer having to resign and the considerable hardship of the proceedings were matters properly to be taken into account. Her Honour said that the fact that the respondent was a serving police officer underlines the seriousness of the offence.

In R v Pangallo of 3 August 1999, also reported 56 A Crim R 441, that involved a solicitor bribing a police prosecutor, and it simply underlines that those involved in the legal justice system are expected to conduct themselves with honesty and with a high standard of honesty.

In R v Irwin [1999] NSWCCA 361 a detective sergeant of police was sentenced in respect of an offence of inciting a person to tamper with or suppress police evidence contrary to s 319. In that matter Hulme J said, para 60:

"It was said in Nomchong that it is important that sentences in these matters deter other police who may be inclined to similar conduct. The findings of the recent Royal Commission provide beyond any doubt that there has not been sufficient deterrence in this state for police officers with the inclinations of the respondent."

His Honour at para 64 made reference to previous authority about the effect of false evidence striking at the heart of the administration of justice.

In R v Nguyen (2004) 149 A Crim R at 343 the offender was a detective sergeant of police who pleaded guilty to intending to pervert the course of justice by procuring another to plead guilty to an offence knowing he was not guilty contrary to s 319. Spigelman CJ said:

"The fact that this offence was not committed in the course of his duty but in a private capacity, a matter which the sentencing judge thought was relevant to lessening the criminality, was a flawed analysis."

His Honour at para 38 said:

"The fact that the offence of perverting the course of justice committed by a person directly involved in the administration of justice is a relevant consideration even if the conduct does not occur in the course of a person's official duty."

Paragraph 39:

"There is authority in this Court to the effect that it is relevant that a person who commits an offence with respect to the administration of justice is a police officer.

His Honour at para 55 says as follows in relation to motivation for corruption:

"However personal advantage can take many forms. Greed may be regarded as a less worthy motive than protection of a family member. The latter is no less a form of personal gain to an offender and is often a more powerful motive. Protection of the system of criminal justice should not be significantly less vigilant where its perversion is attempted for reasons of family ties rather than expectation of monetary gain."

I pause to say, it should not be less vigilant where there is process corruption or where it is thought necessary to bring an offender to book.

In DPP v Aydogan and Gosper [2006] NSWSC 558, Latham J referred to authority in the English Court of Appeal which says that the gist of that offence, which was different to this of course, is the conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs. That is, it seems to me, a matter relevant because his Honour Judge Norrish appears to have taken a slightly different view as to that.

I also refer to Kenny v R [2010] NSWCCA at p 6 where the applicant was a politician in local government who was sentenced to a term of imprisonment for a sexual offence. The only relevance of that matter is that the Court of Criminal Appeal and the sentencing judge dealt with the issue of public opprobrium. The sentencing judge there said:

"In his case the denigration was more pronounced due to his public position as a councillor. On the one hand the community expects and deserves high standards from their public representatives, and naturally when offences are repugnant as these committed in this case are publicly revealed, there is a backlash against the public figure involved."

His Honour considered that he did not believe that such public humiliation is more than would naturally be expected given these offences and his public figure. That of course was a different situation of a person in the public arena. Justice Basten, and I will go into details, referred to the fact that these are matters of balance, and it is indeed relevant to take into account the destruction of a person's reputation and the fact of any public opprobrium which may be brought to bear in relation to it. Relevantly his Honour said:

"The issue of public opprobrium needs to be distinguished from the loss of a job or similar personal financial loss which are properly to be taken into account."

Howie J considered that public opprobrium and humiliation should only be taken into account in an exceptional case where it reaches a proportion that it has some physical or psychological effect on the person, and that is at para 49.

The matters were extensively dealt with in the most recent authority of Einfeld v R [2010] NSWCCA at 87, particularly in the judgment of Basten JA, and I simply indicate that his Honour there dealt with various aspects of extra-curial punishment. I simply draw to attention at paras 79 through to 84, and in particular para 176 where his Honour in the context of a superior court judge, having been convicted of corruption offences, referred to the statements of the then Attorney-General, Mr Dowd, in which Mr Dowd said:

"The offences that damage the administration of justice strike at the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice and to this end it must be protected from attack. Those who interfere with the course of justice must be subject to severe penalties. Not only do offences concerning the administration of justice affect individuals but the community as a whole has an interest in ensuring that justice is properly done."

Before moving to pronouncing sentence, there are two additional matters which I feel compelled to mention. As I indicated in large measure, I agree with the approach taken by his Honour Judge Norrish in relation to the other offenders Messrs Fletcher and Brookes. In that case I note both offenders gave evidence and his Honour had the benefit of those offenders and their expressions of remorse to him in finding they expressed genuine remorse. I have noted that neither offender has given evidence here. However, as is noted in Einfeld's case, the trial judge was confronted with a similar situation and was prepared, based on the exemplary secondary evidence, to accept that there was genuine contrition and remorse. As I have indicated earlier, I find myself so far as both offenders are concerned in a similar position. I reiterate, I consider their remorse and contrition is genuine as has been expressed through the secondary sources.

His Honour at para 12 made this comment at his judgment:

"I point out in relation to the matter that there is no suggestion in the facts that any of the police when they were inside the house sought to leave or unlawfully deposit incriminating evidence so far as any investigation they are conducting in respect of Mr Prowse."

Now to this extent that does not apply in this particular case. Mr Cox has pleaded guilty or asked to be taken into account on Form 1 a neglect of duty in which a police officer unidentified, has apparently moved evidence from outside the house to inside the house. That officer has not been identified. I made no finding as to who that is. There is no basis for so doing. To that extent, his Honour's comments at para 12 are not relevant in my view at least in Mr Cox's position and potentially Ms Lucas, that is a slightly different consideration.

His Honour at para 41 said in relation to Mr Brookes and Mr Fletcher and I quote:

"The prisoner Mr Brookes had allowed his concern for the criminality to which he had been exposed and his zeal for his work to overcome his better judgment in the early hours of the morning."

He continues:

"I accept as with Mr Fletcher this was a very uncharacteristic lapse and I accept that whilst the offence the prisoner committed was committed over a period of time commencing from the early hours of the morning, the prisoner had in effect locked himself into the false account."

His Honour said at para 60 that he was satisfied that these two prisoners were led into this affair from the time of the illegal entry by Mr Cox. He continues:

"It is true they played an active part in agreeing to fabricate a story."

His Honour goes on and I quote:

"The prisoners would not have been in the situation they were currently in but for Mr Cox's suggestion of using the key and what followed from it. It is to be fairly said that overzealous conduct must be stamped out but it also may be said in assessing the facts of this matter that the decision ultimately by these two prisoners to go along with what had been initially suggested and what flowed from that reflected some aspects of misplaced zeal and some aspects of quite falsely placed solidarity with colleagues doing a difficult job."

I pause to note that I accept unreservedly that police officers have an extremely difficult job to do. It is trite to say that when they do their job they get no thanks. It is trite to say that when they muck up they are criticised at the earliest opportunity. They no doubt have a very difficult job to do as to which I have considerable sympathy.

I therefore accept his Honour's last comment. His Honour at para 61 referred to Mr Fletcher's "misplaced sense of loyalty with his fellow officers in doing what he did". At para 62 referring to Mr Fletcher "it is to be fairly said that the prisoner went along because he believed Mr Prowse was an undesirable criminal and that the actions that Mr Brookes was concerned with were really in a just cause. The just cause was the apprehension and conviction of persons who commit serious crimes. The flaw in this reasoning of course is obvious to any objective observer but it may not easily be seen by a policeman in the heat of the moment whose emotions may be affected such as to sway his better judgment as occurred in this particular case and led the prisoner with Mr Fletcher being locked into the situation he could not extricate himself from.

His Honour appreciated at para 63 "that police in the front line have a very difficult job". Their integrity is tested regularly. It is to be fairly said that testing of one's integrity is not a reason for succumbing to temptation" and finally his Honour made these comments at para 74 through to 76 there are other objective features. His Honour considered that whilst the false evidence that was fabricated may have been used in the prosecution of Mr Prowse it was not. Mr Prowse in fact pleaded guilty to the substantial allegations that were brought against him. I pause to note that I with the greatest respect to a senior colleague, disagree that that is a relevant consideration. The Court of Criminal Appeal and others have said that it is not part of the offence that any corrupt conduct is successful or not, in my view therefore it is not an extenuating circumstance that Mr Prowse pleaded guilty and ultimately these were not used the false statement. His Honour continued "the false evidence went very much to a collateral issue see para 75 of the prosecution of Mr Prowse, it was not central or germane to proving his guilt in relation to serious offences that the police were then investigating concerning the destruction of a car and so on. His Honour was satisfied that it was likely that even if the prisoners had not been detected the prisoners may not have been required to give oral evidence in terms of the false evidence contained in their statements, given the collateral character of the matter. Once again with the greatest respect to a far more senior colleague, in my view that does not accord with the principles as set out in higher authorities. The fact that the matter was used or not used is not germane to the falsity and the illegal conduct in which they engaged on 27 October. His Honour at para 79 finally concluded,

"Given the roles of the prisoners compared to the others, given the significance of the false evidence and the prosecution of Mr Prowse, the fact that the evidence did not in fact falsely implicate the offender in the offences which were then the subject of investigation and had no significance of proof of this guilt reflected actions to cover up, was ultimately a totally unnecessary illegal search as well as other matters I pointed out, the culpability of these two offenders is to be seen at a lower level than Mr Cox."

I appreciate these are lengthy reasons but I propose to expand on one further matter which in my view is relevant taking the offences in a broader context. As I say these offences have taken me back to the Royal Commission of the New South Wales Police Service and what his Honour Justice Wood, as he then was, found and it seems to me that it is worthy of reminding oneself of those matters. Justice Wood defined corruption at para 2.1 in his final report as "deliberate unlawful conduct whether by act or omission (on the part of a member of the police service utilising his or her position) whether on or off duty and of the exercise of police powers in bad faith." His Honour concluded by way of example that the fabrication of evidence, the giving of false evidence and the concealing of any form of misconduct by another member of the police service were examples of this. His Honour considered that relevant conduct was considered to be corrupt "whether motivated by an expectation of financial or personal benefit or not, and whether successful or not." At para 2.10 his Honour noted that it was inevitable within any organisation the size of the New South Wales Police Service that some person will be recruited who will lack the personal integrity or strength of character required to do the job, or who for any number of reasons will slip into criminal or corrupt conduct. His Honour cautioned against a response which labelled such conduct as individual deviance or merely opportunistic and made reference to earlier commissions in the United States.

At para's 2.19 and .20 the report referred to aspects of a police officer's working personality and observed "these characteristics are sometimes understood as functional to the survival and sense of security of officers working under frequently dangerous and unpredictable and alienating conditions, as such the 'group loyalty' aspect of police culture is not in itself a negative, however the associated 'siege mentality' and 'code of silence' had been often linked to the proliferation and concealment of police corruption." His Honour then made reference to the New York inquiry in 1994.

At para 2.33 the report notes:

"The process corruption is one of the most obvious pervasion and challenging forms of police corruption which amongst other characteristics is seen by many officers to be in quite a different league from the forms of corruption which attract personal gain and is compounded by ambiguities within the legal and regulatory environment in which police work and apparently by senior police officers and at times members of the judiciary apparently condoning it."

His Honour said at para 2.37:

"In such circumstances the ends can easily come to justify the means and the clear road to process corruption without too much concern or shame. Those officers who do make the effort to think the matter through are often able to make a distinction between acceptable and non acceptable dealings. For them corruption of this kind can still be a means of crime control rather than end in itself and so far as they promote this philosophy among junior police, it can have a significant ideological effect upon the Service."

His Honour concluded at para 4.8 and 9 of the final report:

"Notwithstanding the greatly reduced seriousness with which this type of corruption deemed necessary by some to do the job, is seen, when compared with those forms of conduct that personally enrich an officer, process corruption remains a serious perversion of the office of constable. In practice it commonly becomes linked with extortion, theft and other forms of corruption. In very many of the cases seen by the Royal Commission some of which are noted below this feature is present and exposes the hypocrisy of the tag of noble cause corruption given this activity."

At 4.9 his Honour notes correctly in my view:

"That the Royal Commission does not suggest that there is an inevitable slide from process corruption to other forms of dishonesty, but does say that these serious problems have this effect: That it leaves an officer potentially compromised for all time; it teaches the ease with which deception and cover up can be maintained; it leads to a lack of confidence on the part of the community in the criminal justice system and it becomes accepted as a right of passage, a form of thrill seeking or a means of releasing sociopathic tendencies.

I want to make it absolutely clear that by making those general comments I do not suggest that the evidence discloses widespread corruption in the relevant Local Area Command or amongst these or any other police officers. I do not suggest either directly or impliedly that the two officers with whom I am concerned or for that matter there co-offenders dealt with by Judge Norrish had engaged in any criminality or impropriety other than that to which they have pleaded guilty. I have thought it necessary to raise these more general matters because the circumstances in which this offence arose involving as it did four officers of mid level rank, which may indicate a weakness in the system. By that I mean that the education given to police officers may be insufficient or the control and guidance provided by senior police officers may be less than is required. Of course these are matters for the more senior ranks of the New South Wales Police Service.

Moving then to an assessment of the objective seriousness of these offences. For the reasons above and having regard to the fact that both officers are of some seniority I consider that these offences are objectively serious. As the authorities point out, persons in the position of these officers not only have extensive powers over citizens but they have corresponding responsibilities to act properly and lawfully. Those responsibilities involved the equal and lawful treatment of all citizens whether they suspect on legitimate grounds or not that such suspect is guilty of the offences. In particular I consider that the fact that they are police officers is an aggravating factor. The issue of general deterrence is of the highest order particularly as the conduct such as this has the clear effect of undermining the public confidence in the police force and consequently affecting the morale of the overwhelmingly honest members of the police service.

In my view this conduct and the need for general deterrence reflects these matters. The conduct has the effect of jeopardising prosecutions of criminal offenders. It has the effect of diminishing the professional efforts of the great majority of honest and diligent police officers and it has the effect of bringing the system of justice into disrepute. As I say, these are matters which in my view and in accordance with authority call for a greater measure of general deterrence for offences of this kind. It is clear that both Mr Cox and Ms Lucas and the other co-offenders have a number of factors in common. Each of them is a police officer of some seniority and each has no personal previous criminal history. Each has suffered a significant amount of public opprobrium and has lost their position as a police officer, including any financial entitlements in relation thereto.

I have referred to the principles applied by the superior courts in relation to these heads of prejudice. There is much merit to the views of several superior court judges to the affect that the social status of a particular offender which is an operative factor to the extent of public opprobrium which results from offences of this kind should not be treated more favourably in respect of a well known offender or an offender who has an office than of a person who has no public profile. I incline to the view expressed by Howie J that unless the public opprobrium is such as has the consequences referred to in Kenny's case the weight to be attached to this matter should not be significant. Neither of the officers has quantified the financial loss which has been occasioned by reason of their having to leave the police service. I note that until recently Ms Lucas was employed in a real estate agents office and I note that Mr Cox is presently employed as a manager. Each of them has been in the police force for a little over five or five and a half years. No doubt they have some superannuation to their credit but the extent of that loss has not been indicated in evidence. As referred to by Basten JA in Einfeld's case there is a respectable argument for differentiating between financial loss which flows from an offence disconnected with the offender's professional calling and financial loss resulting from an offence committed in the offender's professional calling. It may be said that the former is a consequence neither adverted to or considered by many offenders whilst corrupt conduct by a police officer, a lawyer or a judge may well be thought to result not only in punishment but also consequential loss of employment. The latter consequences might be thought, would or should be in contemplation of the offender when the offence is committed. However the weight of authority by which I am bound and the number of case I have referred to has not taken this view.

Accordingly I propose to take into account the fact that there has been financial loss and loss of entitlements in a general way. In the case of Messrs Brooks and Fletcher, both gave evidence at the sentencing proceedings as I have said and his Honour found them to be genuinely remorseful. In the present case neither Mr Cox nor Ms Lucas did so and accordingly as I say, I am left to discern the issue of remorse by secondary sources. Referring to paragraph 29 in the decision of Einfeld his Honour there adverted to the remarks of James J where his Honour did what I am prepared to do which is to accept on a secondary basis that both offenders here have shown contrition.

Based on what in my view are some self serving versions provided by the offenders to the probation officer and their respective psychologists I initially had doubts as to whether they had been frank about their involvement and hence genuine in their contrition in relation to these offences. It seems to me that where an offender seeks to explain away his or her responsibility to the offence by blaming others that does not bespeak genuine contrition. However as I say, having carefully read the various character references provided by a range of persons in respect of each offender I, on reflection, am prepared to draw a similar conclusion of genuine contrition.

I agree with the conclusion of Judge Norrish that the offender who precipitated this offence was Mr Cox. It was he who initiated the illegal entry. He who made the false radio call justifying the entry and he who composed a false notebook entry which was ultimately signed by all the other offenders. In this sense he was the controlling or directing mind at the outset of this criminal activity. In terms of the actual events of fabricating the evidence it is true that each of the offenders agreed to enter into that enterprise. However as his Honour did I conclude that in this sense Mr Cox was the principal offender and he should be dealt with in a more serious fashion than the other three, and in particular Ms Lucas. In addition of course, as I have earlier referred to, Mr Cox has asked to be taken into account a matter on Form 1 which places him a little outside the purview of what has been alleged against the other offenders.

Had I been sentencing these offenders afresh and not been constrained by the principles of parity pertaining to the offenders dealt with by Judge Norrish I would have been inclined to take a more serious view of the criminality. In particular I consider that where comparatively senior police officers agree to illegally enter premises and falsify evidence to justify that entry that conduct warrants an imposition of a custodial term. However in my opinion the principles of parity have application. Given the reasons expressed below and in particular the Crown concession that suspended sentences were not outside the permissible range I consider that no greater form of penalty than a suspended sentence should now be imposed on either of the two offenders. That was the position I indicated after argument.

In other words, in my view the general allegations against Mr Cox and Ms Lucas are not substantially different from that against Mr Brooks and Mr Fletcher. In my view therefore the principles of parity apply and that if I were to treat either of these two offenders differently they would have a justifiable sense of grievance. I do not propose to treat them differently in terms of the suspended sentence.

Mr Cox would you stand up please. Accordingly, in relation to the matters - taking into account the matter on Form 1, I convict you and sentence you to a term of imprisonment of two years. Pursuant to the provisions of s 12 of the Crimes (Sentencing Procedure) Act I suspend the execution of that sentence on condition that you enter into a good behaviour bond for a period of two years subject to the following conditions:

1) That you be of good behaviour for that period, and

2) that you appear before the Court if called upon to do so.

Ms Lucas would you stand please. In relation to the offence with which you have been charged and pleaded guilty I convict you of that offence and sentence you to a term of imprisonment of eighteen months. Pursuant to the provisions of s 12 of the Crimes (Sentencing Procedure) Act I suspend the execution of that sentence upon condition that you enter into a good behaviour bond for a period of eighteen months subject to condition that you be of good behaviour for that period and that you appear before the Court if called upon to do so.

I do make this comment finally, it is I think worthy of making, in respect of both Mr Cox and Ms Lucas. Chief Justice Spigelman in Nguyen's case at para 58 said this and with great respect it applies here.

"As often happens with a case in which a criminal offence has been committed by an individual who would normally be punctilious about observing his obligations and who is most unlikely to reoffend there is a high sense of tragedy associated with the events which compelled the offender to commit the crime. It is clear that the respondent (and I say this applies to both persons here) has already suffered to a very substantial degree from the aberrant behaviour in which they engaged. He has lost his job and to a considerable degree but not necessarily irreversible degree he has lost his reputation and his future prospects. From the point of view of society the administration of Justice has lost a person who has made a substantial, indeed in many respects, unique, contribution to the rule of law in this criminality and was clearly capable of continuing to make such a contribution for many years in the future."

I endorse those comments as applicable to Ms Lucas and Mr Cox.

Decision last updated: 05 July 2011

Medium Neutral Citation:	R v Michael Jason COX; R v Sharon Patricia LUCAS [2011] NSWDC 58
Hearing dates:	14, 24 February, 29 April and 20 May 2011
Decision date:	20 May 2011
Jurisdiction:	Criminal
Before:	Judge P Lakatos SC
Decision:	See paragraphs 120 and 121
Catchwords:	Sentence; Fabricate false evidence with intent to mislead a judicial tribunal; Neglect of duty; Corrupt conduct by Police
Legislation Cited:	s 317(b) Crimes Act 1900, s 201 Police Act 1990 Crimes (Sentencing Procedure) Act
Cases Cited:	R v Hilder NSWCCA unreported 13 May 1992; R v Bulliman NSWCCA 25 February 1993; R v Nomchong NSWCCA 10 April 1997; R v Chapman NSWCCA unreported 21 May 1998, R v Pangallo 56 A Crim R 441 R v Irwin [1999] NSWCCA 361 R v Nguyen (2004) 149 A Crim R DPP v Aydogan and Gosper [2006] NSWSC 558; Kenny v R [2010] NSWCCA; Einfeld v R [2010] NSWCCA
Texts Cited:	Royal Commission into NSW Police Service
Category:	Sentence
Parties:	R - Director of Public Prosecutions Offender - Michael Jason COX Offender - Sharon Patricia LUCAS
Representation:	Mr Dailly for Accused Cox Mr Haverfield for Accused Lucas Ms Paterson for the DPP
File Number(s):	2009/00039254 and 2009/00136783