R v Phillip William Smith

[2011] NSWDC 38

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Phillip William Smith [2011] NSWDC 38
Hearing dates:	11 April 2011
Decision date:	14 April 2011
Before:	Judge Walmsley SC
Decision:	Sentenced to a term of imprisonment of 15 months, to be suspended for the term of the sentence upon the offender's entering into a good behaviour bond under s 12 Crimes (Sentencing Procedure) Act 1999
Catchwords:	CRIMINAL LAW - sentence - attempt to pervert the course of justice - police officer providing breath sample for corrective services officer with mid range breathalyser reading - lengthy and unexplained delay in prosecuting offender - sentence of fifteen months, suspended by reason of delay.
Legislation Cited:	Crimes Act 1900 ss 319 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Marinellis v The Queen [2006] NSWCCA 307 Taylor v The Queen [2007] NSWCCA 99 R v Blanco (1999) 106 A Crim R 303 R v Christie (Unreported, District Court of New South Wales, Conlon J, 6 August 2010) R v Nguyen (2004) 149 A Crim R 343 R v Nomchong (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Hunt CJ, McInerney, Sully JJ, 10 April 1997) R v Way (2004) 60 NSWLR 168
Category:	Sentence
Parties:	Regina Phillip William Smith
Representation:	Mr D Carroll (Defence) Mr R Stainer (Crown) Mr B Moylan (Defence)
File Number(s):	2010/114429

Judgment

1. The offender was born on 1 November 1964 and he is now aged forty-six. On 11 April 2011 he appeared before me and adhered to a plea in the Local Court, to one count of attempt to pervert the course of justice contrary to s 319 of the Crimes Act . The maximum penalty for that offence is fourteen years imprisonment.

1. The Crown tendered a set of agreed facts. The document is very lengthy and covers offences committed by a number of police officers and officers employed by the Department of Corrective Services. The facts as they concern this offender, as I have deduced and summarised from that document and from elsewhere in the evidence, are as follows.

1. The offender grew up in Tamworth and left school after year ten. He qualified as a bricklayer and a carpenter. He joined the Police Service in 1987 when he was aged twenty-three. In September 2007 he was stationed at the Moree Police Station as a general duties officer. He had achieved the substantive rank of Senior Constable, but was acting as Sergeant. He had been at the Moree station since 1998. On the evening of 24 September 2007, two junior officers from the Moree Police Station were conducting roadside breath testing in Moree. They were Constable Dunn and Constable Boaden. Constable Boaden saw a car apparently trying to evade the roadside testing and so he followed it and stopped it. It turned out that the car was being driven by an employee of the Department of Corrective Services, one David John Webb. An Alcometer test recorded .095. Mr Webb was arrested and taken to…