R v Patison - [2003] NSWCCA 171

No judgment structure available for this case.

Reported Decision:
143 A Crim R 118

New South Wales

Court of Criminal Appeal

CITATION: R v Patison [2003] NSWCCA 171

HEARING DATE(S): 5 May 2003

JUDGMENT DATE:
15 July 2003

JUDGMENT OF: Giles JA at 1; Bell J at 66; Carruthers AJ at 67

DECISION: Appeal dismissed.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Police Service Act 1900

CASES CITED: Dinsdale v The Queen (2000) 202 CLR 321
King (1985) 82 Cr App R
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v AEM [2002] NSWCCA 58
R v Barton (2001) 121 A Crim R 185
R v Hammoud (2000) 118 A Crim R 66
R v Hilder (CCA, 13 May 1993, unreported)
R v Irwin [1999] NSWCA 361
R v Kear (1978) 2 CLJ 42
R v Nomchong (CCA, 10 April 1997, unreported)
R v Pangallo (1991) 56 A Crim R 441
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Winchester v The Queen (1992) 58 A Crim R 345

PARTIES :
R v David Phillip Patison

FILE NUMBER(S): CCA 60512/02

COUNSEL: P G Ingram - Crown
S J Odgers SC - Respondent

SOLICITORS: S E O'Connor - Crown
Oates & Smith - Respondent

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 70086/02

LOWER COURT
JUDICIAL OFFICER : Dunford J

CCA 60512/02
SC 70086/02

GILES JA
BELL J
CARRUTHERS AJ
Tuesday 15 July 2003

R v PATISON

Judgment

1 GILES JA: This is an appeal by the Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912, against sentences pronounced by Dunford J upon David Phillip Patison, on the ground that the sentences are manifestly inadequate.

The offences

2 On 10 December 2002 the respondent pleaded guilty to an indictment containing ten counts. They were as follows.

Count 1 : On 11 May 2000 at Manly in the State of New South Wales, during the execution of a search warrant, did fail to seize all of the prohibited drugs located during the execution of the search warrant, with intent to pervert the course of justice.

This was an offence contrary to s 319 of the Crimes Act 1900. The maximum penalty was imprisonment for a term of fourteen years.

Count 2 : On 18 May 2000 at Belrose in the State of New South Wales, being a member of the New South Wales Police Service, did solicit a bribe namely $10,000 from Darren Fede.

This was an offence contrary to s 200(1) of the Police Service Act 1900. The maximum penalty was imprisonment for a term of seven years or a fine of $22,000 or both.

Count 3 : On 23 May 2000 at Manly in the State of New South Wales, during the execution of a search warrant, did fail to seize all of the prohibited drugs located during the execution of the search warrant, with intent to pervert the course of justice.

This was again an offence contrary to s 319 of the Crimes Act .

Count 4 : On 21 September 2000 at Balgowlah in the State of New South Wales, did return to Anthony Silvestro a quantity of prohibited steroids that were seized during the execution of a search warrant, with intent to pervert the course of justice.

This was again an offence contrary to s 319 of the Crimes Act .

Count 5 : Between 6 September 2000 and 14 November 2000 at Manly in the State of New South Wales, being a member of the New South Wales Police Service, did solicit a bribe namely $15,000 from Luke Benbow.

This was again an offence contrary to s 200(1) of the Police Service Act .

Count 6 : Between 27 September 2000 and 2 October 2000 at Manly in the State of New South Wales did knowingly take part in the supply of a prohibited drug, namely cannabis.

This was an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty was imprisonment for a term of ten years or a fine of $210,000 or both.

Count 7 : On 20 January 2000 at Manly in the State of New South Wales being then an agent of the Crown, namely a member of the New South Wales Police Service, did corruptly solicit from Vincent Caccamo $10,000 as a reward for or otherwise on account of showing favour to Vincent Caccamo, in relation to the affairs or business of the agent’s principal, namely the Crown.

This was an offence contrary to s 249B of the Crimes Act . The maximum penalty was imprisonment for a term of seven years.

Count 8 : Between 20 January 2000 and 7 March 2000 at Manly in the State of New South Wales being then an agent of the Crown, namely a member of the New South Wales Police Service, did corruptly solicit from Vincent Caccamo $80,000 as a reward for or otherwise on account of showing favour to Vincent Caccamo, in relation to the affairs or business of the agent’s principal, namely the Crown.

This was again an offence contrary to s 249B of the Crimes Act .

Count 9 : Between 20 January 2000 and 16 December 2000 at Sydney in the State of New South Wales did supply a prohibited drug, namely heroin.

This was again an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act , in this instance the maximum penalty being imprisonment of a term of fifteen years or a fine of $210,000 or both.

Count 10 : On 15 December 2000 at North Balgowlah in the State of New South Wales, being a member of the New South Wales Police Service, did solicit a bribe namely $20,000 from Bart Bogan.

Police Service Act

3 When he was sentenced the respondent asked that a further twelve offences be taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The twelve offences appeared on five form 1 documents.

4 The first form 1 document contained two offences to be taken into account when the respondent was sentenced in relation to Count 1 on the indictment, in short form -

(a) that on 11 May 2000, being a member of the New South Wales Police Service, he solicited a bribe of $30,000 from Luke Benbow (s 200(1) of the Police Service Act ); and

Police Service Act).

5 The second form 1 document contained two offences to be taken into account when the respondent was sentenced in relation to count 3 on the indictment, in short form -

(a) that on 23 May 2000, being a member of the New South Wales Police Service, he solicited a bribe of $11,000 from Geoff Heskey (s 200(1) of the Police Service Act ); and

Police Service Act

6 The third form 1 document contained one offence to be taken into account when the respondent was sentenced in relation to count 4 on the indictment, in short form that on 21 September 2000, being a member of the New South Wales Police Service, he solicited a bribe of $30,000 from Anthony Silvestro (s 200(1) of the Police Service Act).

7 The fourth form 1 document contained six offences to be taken into account when the respondent was sentenced in relation to count 9 on the indictment, in short form -

(a) that on 15 June 2000 he stole $6,000 from a dwelling (s 148 of the Crimes Act , maximum penalty seven years imprisonment);

(b) that on 15 June 2000 he gave a bribe of $200 to Shaun Davidson, a member of the New South Wales Police Service (s 200(2) of the Police Service Act );

(c) that on 19 September 2000 he committed larceny of $300 (s 117 of the Crimes Act, maximum penalty five years imprisonment);

(d) that between 9 September 2000 and 16 September 2000 he hindered a police investigation (s 315 of the Crimes Act , maximum penalty seven years imprisonment);

(e) that on 20 January 2000 he received a corrupt reward of $5,000 (s 249B of the Crimes Act ); and

Police Service Act

8 The fifth form 1 document contained one offence to be taken into account when the respondent was sentenced in relation to count 10 on the indictment, in short form that on 16 December 2000, being a member of the New South Wales Police Service, he received a bribe of $8,000 from Bart Bogan (s 200(1) of the Police Service Act).

The sentences

9 The respondent was sentenced on 20 December 2002. The sentencing judge noted the offences to be taken into account in the form 1 documents.

10 The sentences imposed on counts 2, 3, 4 and 10 were -

(a) on count 2 - imprisonment for a fixed term of three years to commence on 10 December 2002 and expire on 9 December 2005;

(b) on count 3 – imprisonment for a fixed term of three years to commenced on 10 December 2002 and expire on 9 December 2005;

(c) on count 4 – imprisonment for a term of four years to commence on 10 December 2002 and expire on 9 December 2006, with a non-parole period of three years to expire on 9 December 2005; and

11 The sentences imposed on counts 1, 5 and 6 were -

(a) on count 1 – imprisonment for a fixed term of four years to commence on 10 December 2003 and expire on 9 December 2007;

(b) on count 5 – imprisonment for a fixed term of three years to commence on 10 December 2003 and expire on 9 December 2006; and

12 The sentences imposed on counts 7, 8 and 9 were -

(a) on count 7 – imprisonment for a fixed term of three years to commence on 10 December 2004 and expire on 9 December 2007;

(b) on count 8 – imprisonment for a fixed term of three years to commence on 10 December 2004 and expire on 9 December 2007; and

13 The judge ordered that the sentences imposed on counts 2, 3, 4 and 10 be served concurrently with each other; that the sentences on counts 1, 5 and 6 were to be served concurrently with each other and partly concurrently with and partly accumulatively upon the sentences on counts 2, 3, 4 and 10; and that the sentences on counts 7, 8 and 9 be served concurrently with each other and partly concurrently with and partly accumulatively upon the sentences on counts 2, 3, 4, 10, 1, 5 and 6.

14 The overall result was imprisonment for a fixed term of seven years with a non-parole period of five years. The sentences and their relationships can be more readily appreciated from the following table -

Count	2002 2003 2004 2005 2006 2007 2008 2009
2	XXXXX XXXXX XXXXX XXXXX
3	XXXXX XXXXX XXXXX XXXXX
4	XXXXX XXXXX XXXXX XXXXX #### ##
10	XXXXX XXXXX XXXXX XXXXX
1	XXXXX XXXXX XXXXX XXXXX XXXXX
5	XXXXX XXXXX XXXXX XXXXX
6	XXXXX XXXXX XXXXX XXXXX #### #### ####
7	XXXXX XXXXX XXXXX XXXX
8	XXXXX XXXXX XXXXX XXXX
9	XXXXX XXXXX XXXXX XXXX#### #### ####

X - Fixed term
X # - Term subject to non-parole period

Facts

15 The respondent’s offences were described in a statement of agreed facts. The judge said -

“In summary they disclose a persistent and organised course of police corruption over almost a whole year, manifested in a number of different ways, including failing to seize or disclose all of the prohibited drugs or cash located during the execution of search warrants, soliciting and receiving bribes from offenders, sharing such bribes with other police officers, reducing the amount of drugs discovered so that offenders who had paid the bribes were charged with lesser offences, with the result that they were granted bail and were liable to lesser penalties, and not giving the full facts subsequently to the court, arranging contact between two drug dealers to facilitate their trafficking, arranging for a drug dealer to obtain bail despite a long criminal record in return for payment of $10,000, and allowing a known drug dealer to continue supplying heroin in return for weekly payments. These activities were based at Manly Police Station where the prisoner was serving as a Detective Senior Constable and were captured on video and legally authorised listening devices worn by an undercover police officer purporting to work with the prisoner and his accomplices.”

16 The respondent joined the New South Wales Police Service in 1979. He was initially stationed at Mosman and then at North Sydney, doing general duties. In 1983 he served twelve months in the drug unit at Kings Cross, after which he returned to Mosman. From 1985 to 1988 he did detective work at Manly and Dee Why, and was then transferred to the Regional Crimes Squad at Chatswood where he served for about three years in the sexual assault unit, about three years in the armed hold-up squad and three years in the drug unit. In 1996 he was transferred to Manly as a detective doing general detective work. He was serving in that capacity when he was arrested in December 2000, and was then suspended.

17 The offences occurred while the respondent was stationed at Manly. The offences were in brief as follows.

18 Count 1 and the first form 1 document: On 11 May 2000 the respondent and other police officers executed a search warrant upon premises of Luke Benbow in relation to the sale of prohibited drugs. Some prohibited drugs and some money were found. The respondent was aware that Benbow had thrown a quantity of cannabis over the fence prior to the police entering the premises, and saw the material where it had come to rest, but concealed his knowledge. The respondent found a bag in the premises containing approximately $40,000.00, which he secreted. He told Benbow that he knew that the cannabis had been thrown over the fence and that the money had been found, and said that the police would be keeping a share of the money. Benbow agreed to split the $40,000 in return for only being charged with possession of small quantities of prohibited drugs and not being charged in relation to the cannabis thrown over the fence. Benbow was arrested and charged. Approximately $9,000 of the $40,000 was returned to Benbow and the respondent shared the rest of the money with other police officers. The respondent then participated in the police officers giving $400 from the money to another police officer Raymond Peattie.

19 Count 2: On 18 May 2000 the respondent and other police officers executed a search warrant on premises of Darren Fede in relation to the possession of prohibited drugs. Execution of the warrant led to location of Fede’s motor vehicle. The vehicle was searched and a small quantity of cannabis and related drug equipment were found. These items were seized and Fede was arrested. The respondent stated that he would confiscate the vehicle as it was associated in the offence of supply of prohibited drugs, and then solicited a bribe of $10,000 in return for not confiscating the vehicle and providing Fede with information which would assist him to “get out of” the charges at court. Fede said that he did not have $10,000, and the respondent reduced the solicited amount to $3,000. Fede said that he did not have the money and the respondent told him the deal was off. Fede was charged. The vehicle was not confiscated.

20 Count 3 and the offences in the second form 1 document: On 23 May 2000 the respondent and other police officers executed a search warrant upon premises of Geoff Heskey in relation to the supply of prohibited drugs. They found a large quantity of cannabis in an Esky. The respondent found approximately $11,000 in cash, which he secreted. The respondent proposed to Heskey that the quantity of cannabis found be reduced to below 300 gms and the police officers take the money. The bulk of the cannabis was disposed of and Heskey was told how to explain his possession of what remained. Heskey was charged with possession of the small quantity of cannabis and the police officers divided the money between them. The respondent participated in their giving $1,000 to Raymond Peattie.

21 Count 4 and the third form 1 document: On 21 September 2000 the respondent and other police officers executed a search warrant at premises of Anothy Silvestro in relation to possession of prohibited drugs They found a quantity of steroid based substances. The respondent did not search further, although he believed that there might be other prohibited drugs. The respondent found approximately $27,000 in cash. Silvestro was arrested. The respondent told Silvestro that he had found approximately $30,000, and proposed to Silvestro that “We can write a lot of this stuff off”. They came to an arrangement pursuant to which a quantity of the steroid based substances was returned to Silvestro and the respondent took $22,000.00 of the money, leaving the remainder at the premises. The money was divided between the police officers.

22 Count 5: On 24 August 2000 a further search warrant was executed at Benbow’s premises by police officers other than the respondent. A quantity of cannabis and $31,000 in cash were found. Benbow was arrested and charged. On 6 September 2000 the respondent suggested to a police officer who had executed the search warrant that they solicit $15,000 from Benbow in return for permitting Benbow to sell cannabis without being arrested until the end of the year, and proposed a plan to have Benbow produce false receipts at court to legitimise the money found on 24 August 2000. On 22 September 2000 the respondent telephoned Benbow and arranged to meet him. He met Benbow and asked for $15,000, later changing the amount to $2,000 per month. Benbow indicated that he could not afford to pay that amount.

23 Count 6: At the meeting with Benbow last mentioned the respondent told Benbow that he could introduce him to a person who could supply him with cannabis leaf. There followed a series of meetings and telephone calls between the respondent and Vincent Caccamo, a supplier of cannabis, and between the respondent and Benbow, in which the respondent effectively acted as middle man and cannabis was supplied on a number of occasions.

24 Count 7: Police investigations identified Caccamo and others as responsible for the supply of a large commercial quantity of heroin. Caccamo went to ground. He was located after extensive enquiries, and was arrested by the respondent and another police officer on 20 January 2000. The respondent joined in negotiations with Caccamo whereby in return for $10,000 the police officers would assist him in securing bail. Caccamo was permitted to walk into Manly Police Station in order to create the appearance that he had surrendered to the police rather than been sought out and arrested. The fact sheet indicated that Caccamo had surrendered himself. He was granted conditional bail. Caccamo paid $5,000 to the respondent and made arrangements to pay a further $5,000. The further sum was not paid.

25 Count 8: Following the events last mentioned the respondent and the other police officer met Caccamo and told him that they could assist him with his case but it would cost him $80,000. The assistance was intended to defeat the charges against Caccamo or to minimise penalty. According to the respondent the amount was ultimately reduced to $50,000. The payment was not made because Caccamo had difficulty obtaining the money.

26 Count 9: The offices in the fourth form 1 document are better considered separately. At the same meeting with Caccamo it was agreed that the respondent and the other police officer would turn a blind eye to continuance of Caccomo’s drug supply activities in return for $1,000 per week, with the police officers to share the money. A number of payments were made. Caccamo continued to engage in the supply of prohibited drugs, including the supply to Benbow earlier mentioned. The payments to the police officers were financed primarily from the drug supply activities. The respondent took no action in relation to Caccamo’s drug supply activities, although he knew that they included selling heroin in the northern beaches region and he had the power to intervene to prevent the supply of heroin. He thereby permitted the supply of heroin, and knew that the money he was receiving represented the proceeds of sale of heroin.

27 The fourth form 1 document:

(a) and (b) On 15 June 2000 the respondent and other police officers executed a search warrant at premises in relation to the possession and supply of prohibited drugs. The exercise was in fact an integrity test formulated by police investigators, who had hidden cannabis and $8,000 in the premises. The respondent found the cannabis and the $8,000 He declared the cannabis and $2,000, and took $6,000. He told another police officer that he had taken $4,000 and gave that police officer $2,000. He participated in their giving $200 to another of the police officers, Shaun Davidson.

(c) On 19 September 2000 the respondent and other police officers executed a search warrant at premises in relation to the possession of prohibited drugs. Prohibited drugs and associated equipment and an amount of money were found. The occupier of the premises was arrested. The respondent proposed to the other police officers that some of the money be taken and shared between them, and that was done.

(d) Police were conducting a surveillance of Benbow in relation to the supply of prohibited drugs. On 11 October 2000 the respondent contacted Benbow and told him in a coded conversation that the police were around. Benbow interpreted the conversation to mean that a search warrant was about to be executed, and disposed of quantities of cannabis leaf. On 16 October 2000 the respondent and Benbow met and the respondent told Benbow of the presence of a police surveillance officer and said that he should get rid of anything in the premises. (No point was taken that the form 1 document placed the events in September rather than October.)

(e) On 20 January 2000 the respondent received the $5,000 part of the $10,000 solicited from Caccamo, see count 7 in the indictment.

28 Count 10 and the fifth form 1 document: On 15 December 2000 the respondent and other police officers executed a search warrant at premises of Bart Bogan. A box containing prohibited drugs and related drug equipment was found. The respondent found a further quantity of tablets, which he secreted. He told Bogan that he had found the tablets and that they might be able to work something out for $20,000. Another of the police officers then found the tablets where the respondent had secreted them. In further negotiations with Bogan it was agreed that the quantity of drugs with which Bogan was to be charged would be reduced and he would get bail, in return for $20,000. After some vicissitudes, in a controlled operation Bogan paid $8,000 to the respondent. (It was at this point that the respondent was arrested. He denied any knowledge of the money and any sinister motive in his meetings with Bogan.)

29 There was much more in the agreed statement of facts. On occasions one of the police officers involved in the events was an undercover officer, authorised telephone intercepts and recording devices were employed, and information was provided by some of the drugs offenders in induced interviews. The course of the respondent’s conduct was thoroughly revealed, and the judge’s summary earlier set out was fully justified. Although he did not otherwise relate them, there is no reason to think that the judge misapprehended the material events.

The sentencing judge’s reasons

30 The judge said that the respondent’s offences disclosed “a very serious degree of criminality”. He said that the Police Service exists for the prevention and detection of crime, referred to the obligations imposed on police officers by s 7 of the Police Service Act, and said -

R v Pangallo

31 The judge noted the respondent’s evidence offered by way of explanation for his corrupt conduct, although he did not expressly indicate whether he accepted the evidence. He did not suggest that it caused him to take a more benevolent view of the respondent’s criminality. The judge said -

“9 He said that whilst at Chatswood he observed corruption in different forms and was involved in it, but after his return to Manly he was not initially involved. However, following the failure of an application by him for promotion whilst he was at Chatswood, and an application for a transfer to the fraud squad whilst at Manly, he became more cynical concerning the Police Force.

10 Following a couple of stressful situations in which he found himself, he was off work for about six weeks on stress leave. Having returned to work, possibly prematurely, he was subsequently involved in another incident which caused him to breakdown, which he thought would be perceived by his fellow officers as a weakness.

11 He said that when he was first stationed at Manly he was involved in what is sometimes referred to as "noble cause" corruption, particularly the loading of defendants and fabrication of evidence and that this continued for some time whilst he was at Chatswood. Two years after his return to Manly in 1996 he became involved in the corruption which gives rise to the charges that are before the Court.

12 He claimed he became involved because it was part of the culture in the Police Service and particularly when drinking with colleagues there was talk of others doing it, and if you showed a propensity against such conduct you would find yourself out of the unit.

13 He told Wendy Lee Buchanan, psychologist, (Ex 3) that he had been present when others were dishonest and had not objected when money had been handed to him, and that it was difficult not to accept it, as the other officers would not associate with people who were not "with them". He said that the attitude of the group was that it was not so serious as it was only criminals who were suffering.”

32 After referring to subjective matters, to which I will return, the judge repeated that the offences were “of a most serious nature”, and said that the sentences “must reflect not only retribution and community condemnation of the prisoner’s conduct but considerations of general deterrence are of major importance, to deter any other police officer minded to act in a similar manner”.

33 As to subjective matters, the judge noted that the respondent had admitted that his conduct had brought “much shame on the Police Service” and that he had let down his fellow officers and the community as a whole. He referred to letters of apology written to the Commissioner of Police and the President of the Police Association and to the fact that the respondent had given assistance to the authorities, his disclosures being regarded as truthful and reliable by investigators and including matters not previously known to them. He said -

“15 I am satisfied that he is sincere in his remorse and contrition, and is unlikely to offend again (although of course he will never have the opportunity to offend in a similar manner), but I have no doubt that if he had not been caught, his corrupt conduct would have continued indefinitely.”

34 The judge noted that as a result of his conduct the respondent had been dismissed from the Police Service and had lost his previous good reputation, his employment and (except for his own contributions) his superannuation benefits. The respondent had repaid to the authorities approximately $48,000 assessed as money he obtained by his illegal activities and also $8,000 part of the proceeds of the activities which he had concealed. The judge noted that the respondent had given evidence before the Police Integrity Commission “and this attracted a considerable amount of unfavourable publicity for him”.

35 The judge noted that the respondent had been active in the community as a member, and for a time President, of a surf lifesaving club, and with his wife had been engaged in fund raising activities for charitable purposes. He said, “He has the continued support of his wife, but realises that he has let his fifteen year old son down at an important stage in the son’s development”.

36 The judge gave a discount “in the order of 30 per cent” for the respondent’s early pleas of guilty, his assistance to the authorities and his contrition, and continued -

Pearce v The Queen

37 The judge said that he was referred to a number of cases, which he identified, and that -

“ … although helpful, they deal with isolated cases of police corruption, bribery and perverting the course of justice involving one or two instances and not with systematic corruption over a lengthy period of time involving a number of discrete offences such as the present case.”

38 The judge said that he took into account that the respondent was a former policeman and because of his assistance to the authorities his incarceration would be more onerous. After referring to special circumstances, he said -

“21 In cases where I impose a fixed term with no non-parole period it is because of the concurrency of other sentences. In fixing the concurrency of sentences I have regard to the fact that counts 1, 5 and 6 all involve Luke Benbow, whilst counts 7, 8 and 9 all involve Vincent Caccamo.”

39 The judge then pronounced the sentences earlier described.

The appellant’s submissions

40 The appellant acknowledged that the sentencing judge had appropriately characterised the objective seriousness of the respondent’s criminality and had appropriately referred to the subjective matters to be taken into account. He acknowledged that the discount of 30 per cent was within the range open to the judge “provided that the ‘starting point’ sentences were also apposite”. He acknowledged that it was appropriate for the judge to take into account that the respondent’s incarceration would be particularly onerous.

41 The appellant submitted that there was nonetheless manifest inadequacy in the sentences, occasioned by the judge -

(i) erroneously imposing sentences in relation to counts 1, 3, 4, and 9 in the indictment that did not appropriately reflect the objective seriousness of those offences and incorporate an appropriate increment to reflect that matters in a form 1 document had been taken into account; and

42 The appellant submitted that the offences called for particularly condign punishment -

“ …not simply because they were all serious offences committed by the respondent in flagrant abuse of his position as a police officer … but further because all the offences were committed by the respondent despite the activities, hearings and recommendations of the Royal Commission into the New South Wales Police Service in 1994-1995 being well publicised to everyone in the community including and perhaps most particularly to police officers such as the respondent in the years immediately preceding these offences.”

The base sentences – Counts 1, 3, 4 and 9 and form 1 offences

43 Calculating out the 30 per cent discount, the judge determined approximate “starting point” sentences, including increment for the matters in the form 1 documents -

44 The appellant accepted that in each case the sentence “may not have been manifestly inadequate by regard only to the criminality in the count in the indictment”. He submitted that taking account of the matters in the form 1 documents called for increases in the sentences, and that by regard to both the count in the indictment and the relevant matter(s) in the form 1 document there was manifest inadequacy. The applicant referred to the observations of Spigelman CJ (Wood CJ at CL and Grove, Sully and James JJ agreeing) in Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002) NSWCCA 518 at [42], cited from his Honour’s judgment in R v Barton (2001) 121 A Crim R 185 at [64] -

“The position, in my opinion, is that although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to be given greater weight than they might otherwise be given when sentencing for the primary offence.”

Crimes (Sentencing Procedure) Act

45 The appellant submitted that in the present case the element of personal deterrence warranted significant weight since, although the respondent would not be in a position to offend again as a police officer, he would upon release from prison be able to engage in dishonest conduct of the kind demonstrated by the offences in the form 1 documents. He submitted that the element of retribution warranted particularly significant weight because of the nature of the offences, encompassing corrupt conduct as a police officer and corrupting of other police officers and intentional interference with bringing offenders to justice. He said that the cases to which the judge was referred provided material guidance, notwithstanding that they involved more isolated instances of corrupt conduct and perversion of the course of justice, because of the strong observations to the effect that corrupt conduct by a police officer is a breach of trust and authority, and strikes at the heart of the justice system and must be severely punished in order to deter its commission: R v Pangallo (1991) 56 A Crim R 441 at 443; R v Hilder (CCA, 13 May 1993, unreported); R v Nomchong (CCA, 10 April 1997, unreported); R v Irwin [1999] NSWCA 361 at [46].

46 The element of personal deterrence must be considered against the judge’s finding that the respondent was sincere in his contrition and remorse and “is unlikely to offend again”, a finding not limited to offending again as a police officer. There was little room for enhanced personal deterrence by reason of the form 1 offences.

47 The element of retribution clearly enough could attract enhancement in the exercise of the sentencing discretion. As Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 makes clear, the respondent was still being sentenced for, and only for, the offences in the relevant counts in the indictment. But so far as those offences were shown, by account taken of the form 1 offences, to have been other than isolated or to have been redolent of corrupt departure from a police officer’s obligations, the appropriate retribution could be the greater.

48 However, any enhancement remained a discretionary exercise, one in which separate quantification of the effect on the sentences of taking into account the form 1 matters would rarely be appropriate and the objective was to ensure that the total period of imprisonment was “one which best meets the situation”: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 at [44], [30]. The judge did say that the sentences must reflect retribution and community condemnation of the respondent’s conduct, and there is no reason to think that he overlooked retribution by reason of the matters in the form 1 documents. It is necessary to find error in the exercise of the discretion.

49 On a Crown appeal against sentence error by way of manifest inadequacy must be clearly demonstrated, not only in ubiquitous recognition of the range of sentences open to the judge’s discretion but also because of the “attitude of restraint” appropriate for a Crown appeal noted by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at [62]. Where the inadequacy is founded on the account taken of matters in a form 1 document, the restraint is no less, because of the nature of the task when taking those matters into account.

50 I do not think that, conformably with these principles, manifest inadequacy indicative of error has been shown in the sentences prior to the 30 per cent discount. The judge found subjective factors of some significance in favour of the respondent, apart from those within the discount, and they must have influenced him in arriving at the sentences. A notional five years and nine months with respect to counts 1 and 4, against the maximum sentence of fourteen years, is low in the range available to the judge, but in my view nonetheless within the range even when account is taken of the matters in relevant form 1 documents. Similarly a notional four years and three months with respect to count 3. I consider the notional seven years with respect to count 9 closest to the line, as much because of the seriousness of the respondent’s conduct in the offence in count 9 by complicity in the supply of heroin as because of the matters in the fourth form 1 document, but I have concluded that in that instance also there has not been the necessary clear demonstration that the bounds of the judge’s sentencing discretion were exceeded.

Concurrency and accumulation

51 The appellant pointed to the judge’s explanation that in fixing the concurrency of sentences he “had regard to the fact that counts 1, 5 and 6 all involve Luke Benbow, whilst counts 7, 8 and 9 all involve Vincent Caccamo”. He said that there was error in relation to concurrency because, while there were the common involvements of Benbow and Caccamo, that was of little significance when the offences were otherwise discrete, and because there was no such common feature for counts 2, 3, 4 and 10 and no explanation given for the concurrency of the sentence on those counts. He submitted that there should have been partial accumulation in the various sentences for the offences in these counts.

52 The appellant then submitted that the accumulation ordered, whereby there came the overall result of imprisonment for a fixed term of seven years with a non-parole period of five years, failed to reflect the totality of the respondent’s criminality and led to manifest inadequacy in the overall result.

53 In Pearce v The Queen (1998) 194 CLR 610 at 624 McHugh, Hayne and Callinan JJ said that a judge sentencing an offender for more than one offence “must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well of course, as questions of totality”. Cumulation or concurrence is one thing; totality is another thing; and they interact. Appreciating this provides the key to what the judge did, and most of the answer to the appellant’s submissions.

54 The basic principle in considering questions of cumulation or concurrence in sentencing was stated in Pearce v The Queen at [40] -

“[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”

55 In R v Hammoud (2000) 118 A Crim R 66 it was said at 67 -

“Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong.”

R v AEM

56 If there were no more to it, there would be substance in the appellant’s submission to the effect that the common involvements of Benbow and Caccamo were of little significance and no common feature for counts 2, 3, 4 and 10 was identified. The offences involving Benbow in counts 1, 5 and 6 were at different times and different in nature, likewise the offences involving Caccamo in counts 7, 8 and 9; and the offences in counts 2, 3, 4 and 10 were at different times and largely different in nature. The wholesale concurrences would reveal error of principle. But there is more to it, in the interaction of the totality principle.

57 The totality principle comes into play after individual sentences have been arrived at and questions of cumulation or concurrence, of the kind just explained, have been addressed. In Mill v The Queen (1988) 166 CLR 59, cited for the totality principle in Pearce v The Queen, Wilson, Deane, Dawson, Toohey and Gaudron JJ said (at 62) -

‘The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is `just and appropriate'. The principle has been stated many times in various forms: `when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; `when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.”

58 The totality principle is not, as underlay the appellant’s submissions, directed to ensuring that the aggregate sentence is sufficient for the totality of the offender’s criminality. It is a limitation upon excess, with the totality of the offender’s criminality a measure of the maximum aggregate sentence rather than the minimum.

59 Importantly, for present purposes, in Mill v The Queen their Honours went on to say (at 63) -

“Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.”

60 Thus cumulation or concurrence and the totality principle interact. The totality principle may be given effect by making sentences wholly or partly concurrent; that is the preferred course.

61 The judge took that course. He said so -

“ … in order to give effect to the principle of totality, to make some of those sentences wholly or partly concurrent with each other”.

62 The judge said that he “[had] regard to” the common involvements of Benbow and Caccamo, but I do not think he treated the common involvements as features warranting concurrency of sentences regardless of the obvious disparate features. They were perhaps as convenient a way as any to link some of the adjustments made in giving effect to the totality principle. I do not accept that there was the error in relation to concurrency on which the appellant relied.

63 There may nonetheless have been error in the accumulation ordered. The appellant’s submissions, in my view, came down to error in that the sentencing judge’s application of the totality principle produced an overall result which was manifestly inadequate. On that basis, the concurrences were symptoms of error, and the error was not in failing to apply the totality principle but in applying it with an appreciation of the magnitude of the respondent’s overall criminality so flawed as to attract appellate intervention.

64 The judge was forceful in what he said of the respondent’s criminality. He was alive to the considerations of deterrence and retribution. Prior to the 30 per cent discount, the overall result was ten years imprisonment. There were the further subjective matters. Given the attitude of restraint earlier mentioned in a Crown appeal, equally appropriate at this point, I do not think that manifest inadequacy has been made out. Although in my view favourable to the respondent, I do not think that the judge’s application of the totality principle and the result it achieved have been clearly demonstrated to be beyond his sentencing discretion.

65 In my opinion, the appeal should be dismissed.

66 BELL J: I agree with Giles JA.

67 CARRUTHERS AJ: The litany of serious offences to which the respondent pleaded guilty, together with the Form 1 offences which he admitted, presented the learned sentencing judge with an extremely difficult task. Indeed, Mr Odgers SC for the respondent on the appeal, informed the Court that “This would have to be one of the most difficult sentencing exercises I have ever seen”.

68 Giles JA has set out the relevant facts together with a summary of the competing submissions to this Court. I gratefully adopt those matters and concur with his Honour’s conclusion that the appeal must be dismissed. I would, however, add the following remarks.

69 One of the key difficulties with the purposes of criminal punishment is that they often overlap or otherwise appear to be contradictory. As Well J said in the Supreme Court of South Australia, “The purposes jostle one another for paramountcy”: see R v Kear (1978) 2 CLJ 42. The present appeal is a perfect example of the truth of that aphorism. Any indictment with so many serious counts and so many serious Form 1 offences necessarily means that there are, one could almost say, countless ways in which the respective sentences may be structured. It may well be that individual sentences allocated to counts could be said to be inadequate, but when matters of totality, including accumulation and partial accumulation are taken into account, the end result may well be satisfactory. Conversely, adequate sentences may be allocated to individual counts but inappropriate accumulation or partial accumulation may result in an overall unsatisfactory end result.

70 This has been demonstrated by the large number of appeals which have come before this Court since Pearce v The Queen (1988) 194 CLR 610, was decided in the High Court.

71 When opening the appeal to this Court Mr Ingram of counsel for the Crown (who provided commendable assistance to the Court) stated that the nub of the appeal was that when his Honour came to impose sentences appropriately to reflect the characterisation of the criminal conduct of the respondent, his Honour erred in the ultimate result in that the total effective sentence was manifestly inadequate, giving full and proper weight to the subjective features. Mr Ingram sought to explain how that alleged inadequacy came about by reference to four specific matters. They are referred to in the judgment of Giles JA.

72 The Crown forcefully submitted that, looking at the overall sentencing structure, a starting point of ten years was inadequate. By the application of a deduction of 30% to embrace, in the aggregate, the early pleas of guilty, assistance to the authorities and contrition, his Honour reached a figure of seven years. After making an allowance of three months for special circumstances an aggregate non parole period of five years was fixed.

73 Counsel for the respondent submitted that when examining the appropriateness or otherwise of a starting point of ten years the question was raised as to the appropriateness of the aggregate discount of 30%. I consider this to be a valid submission.

74 Relevantly, dealing with the pleas of guilty, Spigelman CJ (with the concurrence of the other four members of the bench) said in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418 that the appropriate range in this State for a discount for a plea of guilty is from 10% to 25%. The determination of where, within such a range, the discount should fall in a particular case is a matter of discretion for the sentencing judge. Two circumstances were, however, appropriate to assist in determining the level of discount in a particular case; namely, the time at which the plea was entered and, secondly, the complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. Applying those principles to the instant case, the circumstances, in my view, called for a discount in the higher part of the range.

75 Dunford J was satisfied that the respondent was sincere in his expressions of remorse and contrition. What relevance does this have to the discount for pleas of guilty. In this regard the Chief Justice in Thomson (at 416) approved Winchester v The Queen (1992) 58 A Crim R 345 at 350 where Hunt CJ at CL (with the concurrence of the other members of the Court) said:

“... The extent to which leniency will be afforded upon this ground [ie contrition] will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable.”

76 The Chief Justice continued:

“A ‘recognition of the inevitable’ may qualify the extent of genuine contrition. It does not qualify the utilitarian value of the plea.”

77 In view of the strength of the Crown case in the instant appeal it necessarily means that the element of contrition could play little role in the discount for the pleas of guilty. That is not to say, however, that the genuine remorse and contrition of which Dunford J spoke is not a factor to be taken into consideration for the respondent’s benefit in the overall sentencing process.

78 Turning then to the level of discount for the assistance to the law enforcement authorities. It is now well established that in this State the customary discount appears to range from 20% to 50%: see eg R v Chu (Wai Tung) (unreported CCA, 16 October 1998).

79 When dealing in Chu (Wai Tung) with reductions for assistance, Spigelman CJ referred to King (1985) 82 Cr App R (S120 at 122), where the Court of Appeal said:

“The quality and quantity of the material disclosed by the informer is one of the things to be considered, as well as its accuracy and the willingness or otherwise of the informer to confront other criminals and to give evidence against them in due course if required in Court. Another aspect to consider is the degree to which he has put himself and his family at risk by reason of the information he has given; in other words the risk of reprisal. No doubt there will be other matters as well.”

80 This is a particularly apposite statement bearing in mind the assistance which the present respondent provided to the authorities.

81 His Honour had before him a letter of comfort dated 10 December 2002, which recorded that valuable (and reliable) assistance had been provided by the respondent to the authorities. Further, the respondent has agreed to provide further valuable assistance when certain persons are brought to trial, their proceedings being presently pending. Section 23(2) of the Crimes (Sentencing Procedure) Act 1999 nominates certain specific matters which the Court must consider when having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, the subject offence or any other offence. Those matters are as follows:

23

(a) the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims,

(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender’s assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j) the likelihood that the offender will commit further offences after release.”

82 With the exception of par (f) the present respondent is entitled to the benefit of the various matters set out for relevant consideration by the legislature.

83 In view of what I have set out above, it would appear to me that if his Honour had allowed the respondent an aggregate discount of 50% to take account of both the pleas of guilty and the assistance to the authorities, such a discount could not be subject to successful challenge. If such were the case, it would require a head sentence of fourteen years, by way of starting point to reach the seven years determined by his Honour. Such is the significance of the quantum of discounts.

84 When one turns to the subjective factors, the fact that the respondent (as a former police officer with over twenty years service) will be required to serve the entirety of his sentence in strict protection is, perhaps, the most significant. When one looks at the various units in which the respondent served during his police service, there could be no doubt that he would have acquired numerous enemies in the criminal community.

85 The relevant case law and principles are set out by Lynne A. Barnes in Protective Custody and Hardship in Prison: see Sentencing Trends No 21 (February 2001) published by the Judicial Commission of New south Wales.

86 When one considers the circumstances under which the respondent will serve his sentence, it must be borne in mind that he suffers the disadvantage of not only having been a police officer but he was also, and will continue to be, an informer.

87 In these circumstances the following passage from the judgment of Lord Lane CJ in Davies and Gorman (1978) 69 Cr App R 319 at 322 is apposite.

“We are told, and it is submitted with some force and it is perfectly good sense, that in deciding what Davies’ sentence ought to be by itself we must bear in mind that every year he will serve could be the equivalent of 18 months or two years in a happier atmosphere.”

88 This passage was cited with approval by Kirby P (as he then was) in R v Astill(No 2) (1992) 64 A Crim R 289 at 294-295 and subsequently in AB v The Queen (1999) 198 CLR 111 at 152.. The passage had earlier been quoted by this Court in R v Cartwright (1989) 17 NSWLR 243 at 255.

89 Some of the restrictive circumstances under which inmates serve sentences in special protection are set out by Kirby P in Astill (No 2) at 297-298. Those restrictions are well known to judges who preside in the Criminal Jurisdiction and provide clear support for Lord Lane’s observation in Davies that every year served in strict protection is the equivalent of eighteen months or two years “in a happier atmosphere”. The phrase “a happier atmosphere” is no doubt a euphemism for service under ordinary imprisonment circumstances.

90 It is well recognised that service of a sentence in strict protection imposes psychological stresses upon the inmate. It is appropriate therefore to note certain passages from the psychological report of Wendy Lee Buchanan dated 9 December 2002 which was before his Honour. Specifically Ms Buchanan records that in 1997-1998 the respondent was on stress leave after breaking down when on duty at the surf club of which he was president. This was apparently associated with distressing experiences to which the respondent was subjected during the course of his work as a detective. By the third session Ms Buchanan had formed the view that the respondent may have ongoing symptoms from his exposure to traumatic incidents in his police work which may have had an influence on his corrupt behaviour. She thought there was evidence in the past of problems similar to chronic post traumatic stress disorder. She opined that the respondent’s cynicism about the Police Force may have been exacerbated by PTSD and made him more vulnerable to corruption.

91 The report concluded:

“It is suggested that Mr Patison have further counselling around his trauma exposure in order to ameliorate symptoms such as depression and anxiety and remove the risk of a dissociative state which may have been the predisposing factor in his downfall.

Mr Patison is a sensitive caring man who would not fare well under a custodial sentence. It is likely that he would not be able to keep his depression at bay, and his anxiety about his family and in particular his son, would be increased to the detriment of his mental state.”

92 Despite the persuasive and forceful arguments addressed to this Court by Mr Ingram for the Crown, I am persuaded, particularly by reference to the factors which I have set out above, that the sentence imposed by his Honour was within his discretionary range. I agree, therefore, with the order proposed by the presiding judge, Giles JA, that the appeal be dismissed.

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Last Modified: 07/16/2003

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Citations

R v Patison [2003] NSWCCA 171

Most Recent Citation

R v Durocher-Yvon [2003] NSWCCA 299

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CITATION:	R v Patison [2003] NSWCCA 171
HEARING DATE(S):	5 May 2003
JUDGMENT DATE:	15 July 2003
JUDGMENT OF:	Giles JA at 1; Bell J at 66; Carruthers AJ at 67
DECISION:	Appeal dismissed.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Police Service Act 1900
CASES CITED:	Dinsdale v The Queen (2000) 202 CLR 321 King (1985) 82 Cr App R Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v AEM [2002] NSWCCA 58 R v Barton (2001) 121 A Crim R 185 R v Hammoud (2000) 118 A Crim R 66 R v Hilder (CCA, 13 May 1993, unreported) R v Irwin [1999] NSWCA 361 R v Kear (1978) 2 CLJ 42 R v Nomchong (CCA, 10 April 1997, unreported) R v Pangallo (1991) 56 A Crim R 441 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Winchester v The Queen (1992) 58 A Crim R 345
PARTIES :	R v David Phillip Patison
FILE NUMBER(S):	CCA 60512/02
COUNSEL:	P G Ingram - Crown S J Odgers SC - Respondent
SOLICITORS:	S E O'Connor - Crown Oates & Smith - Respondent

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 70086/02
LOWER COURT JUDICIAL OFFICER :	Dunford J