R v Purcell

[2010] NSWDC 98

CITATION:	R v PURCELL [2010] NSWDC 98
HEARING DATE(S):	7 May 2010 2 June 2010
JUDGMENT DATE:	2 June 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	For the common law offence of misconduct in a public office the offender is fined $2,000. For the offence of misleading PIC he is ordered to perform 200 hours community service.
CATCHWORDS:	CRIMINAL LAW - Sentence - Misconduct of a holder of a public office - Give misleading evidence at hearing before Police Integrity Commission - Police officer disobeying directive from senior officer
LEGISLATION CITED:	Police Act 1990
CASES CITED:	Ryan v The Queen (2001) 206 CLR 267
PARTIES:	The Crown Adam Michael Purcell
FILE NUMBER(S):	DC 2008/37955; DC 2008/236000
COUNSEL:	J Dailly SC - Offender
SOLICITORS:	Director of Public Prosecutions Burstone Cole & Mulock - Offender

SENTENCE

1 HIS HONOUR: In the spring of 2006 the offender was a Superintendent of Police and Commander of the Hurstville Local Area Command. He was a fine policeman who was well respected by his colleagues. The next step for him was to become an Assistant Commissioner of Police, but that is no longer a possibility. He is no longer a police officer. He is a hotel manager suffering a chronic adjustment disorder. He is fully aware that he has only himself to blame for this change in circumstances because in the spring of 2006 and the autumn of 2007 he committed two criminal offences.

2 On 4 October 2006 two children were sexually assaulted in a public park within the Hurstville Local Area Command. The offender received a telephone call, providing him with what was then known about the offence, at 1.44pm. Within minutes of completing that call, and certainly before informing anyone in the Police Media Unit, the offender telephoned a television reporter named Robert Ovadia. He told him about the nature of the assault and its location. He asked Mr Ovadia to lie for him if he was asked how he learnt of the offence by saying that he had heard of the incident over a radio scanner. Mr Ovadia was, it would seem, quite willing to engage in that deception in order to maintain the offender as a source of information.

3 Shortly after speaking to Mr Ovadia the offender belatedly informed the Police Media Unit of the assault. That afternoon he also returned a call from the local MP. He provided some information to the Member of Parliament concerning the assault, including telling him of the particular modus operandi used by the offender to lure the children away from their parents.

4 At the time the offender did not realise the significance of the modus operandi used, but he later came to understand that this modus operandi had been used before in offences involving other children going back a number of years.

5 What the offender had thus far done was not a criminal offence. It was however in breach of the guidelines relating to the offender’s contact with the media because it gave preference to one reporter, Mr Ovadia, over others.

6 The offender explained in evidence before me that he had given Mr Ovadia the information concerning the assault before he telephoned the Police Media Unit as he owed Mr Ovadia a favour; the latter having earlier agreed not to report some information, which, had it been reported, would likely have prejudiced a police investigation into a murder. Now is not the time to enquire into the wisdom of senior police officers owing favours to Channel 7 reporters.

7 What the offender later did that evening and over the following days amounted to a criminal offence. The offender has pleaded guilty to an offence of misconducting himself as the holder of public office, a common law offence. In essence, the offender disobeyed a direction from a senior officer concerning what the offender could say to members of the press. The offender’s superior, Mark Goodwin, did not want there to be any suggestion in the press that the person who assaulted the two children on 4 October may have committed similar offences in the past. The offender did not agree with that decision and rather than raising his concerns with his superior officer, he simply disobeyed the direction he was given.

8 That direction came in a telephone call that the offender had with his Regional Commander, Mr Goodwin, at 9.24pm on the day the children were assaulted. However, less than half an hour later, the offender told a person who rang him that he believed that the person who assaulted the children had committed a number of previous offences.

9 The following day the offender received a telephone call from another journalist, Sean Fewings. Mr Fewings was seeking information. The offender told him that he would ring Mr Fewings after he had had a briefing with other investigators. That same morning the offender received a telephone call from the Superintendent in Charge of the Child Protection and Sex Crimes Squad. In that telephone call the Superintendent asked the offender if he had received any enquiries from the media that morning. Despite having spoken to Mr Fewings only one hour before, the offender lied to her, falsely informing her that he had not had any contacts.

10 It is clear that the offender intended to maintain a personal relationship with members of the media in respect of the investigation, which he had no intention of disclosing to other police officers.

11 Also that morning the offender had another conversation with Mr Ovadia in which he disclosed precisely what he had been directed not to disclose. That is, that the police believed that the person who assaulted the children in the park was a serial offender who had committed three similar assaults in the past. Indeed, the offender went further, disclosing the nature of the modus operandi and providing information to Mr Ovadia which would allow him to identify a relevant media release relating to an earlier incident. The offender stressed to Mr Ovadia that the modus operandi should not be disclosed. Mr Ovadia agreed.

12 In the early afternoon of that day the offender again spoke to the MP he had earlier spoken to and once more the offender disclosed what he should not have disclosed, namely, that police believed that they were dealing with a serial offender who had committed four previous offences. He said the same thing a few minutes later to a Daily Telegraph journalist.

13 The offender’s state of mind can be gleaned from a conversation he had with Mr Ovadia at about 7.30 that evening when he told him he was completely at ease with the fact that he had divulged the information which he had. He said something similar to a different Daily Telegraph journalist on 11 October 2006 when the offender indicated that his response to any request for him not to speak to the media would be, “Oh fuck off, I’ll talk to whoever I want to, you know.”

14 What would it be that caused the offender to flagrantly disregard a direction from his senior officer, Mark Goodwin? The offender explained in evidence that he had personal reasons for doing so which he preferred over the interests of New South Wales Police.

15 His evidence was that he thought that members of the community should be made aware of the possibility that there was a serial child molester on the loose so that they could take appropriate steps to protect themselves and their children. It was his perception that the direction from Mr Goodwin was based on a desire to protect the reputation and standing of the police force from shock jocks in the media who might be critical of the failure of police to catch the child molester, despite what appeared to be repeat offending. He now accepts that his perception may well have been wrong.

16 The offence to which the offender pleaded guilty, namely, misconduct in a public office, is a common law misdemeanour very rarely charged. When it is charged it almost invariably relates to conduct by a public officer designed to benefit, usually in a financial way, the holder of that office. In this case, the Crown accepts that the offender had no such motivation. His desire seems to have been to warn people, especially in the Hurstville area, about the risks they faced.

17 In assessing the gravity of this offence it is perhaps instructive to consider that the statutory offence most closely covering the offender’s conduct is an offence under s 201 of the Police Act which carries a maximum penalty of a fine. The Crown accepts therefore that the offender should not receive a sentence of imprisonment for this offence. Nor should I impose a community service order either, because such a penalty is only possible where the offence does carry with it a maximum sentence involving imprisonment. I will return to the appropriate punishment for this offence after dealing with the other matter which the offender is to be sentenced.

18 In April 2007 the Police Integrity Commission commenced hearings into police conduct in the Eastern Suburbs Command during 2004 and 2005. At the relevant time the offender was the Acting Commander of the region. He was served with a summons to attend a private hearing of the Police Integrity Commission. The offender did not take this development well. He became very stressed at the possibility that people under his command had acted improperly or corruptly. He was not sleeping and he began to drink more than he usually did.

19 The summons was served on the offender on a Monday and he was due to give evidence the following Friday. He had a friend staying with him who was also a police officer. The offender had known him for many years and in breach of what the offender had been told when the summons was served upon him he began to discuss the summons with his friend. That friend has been given the code name MAL14 and I will describe him in that way during these remarks on sentence.

20 After working long hours on Anzac Day the offender began to drink. Once MAL14 arrived at the offender’s unit the offender told him that he had been served with a summons to attend the PIC, the scope and purpose of the PIC investigation and some details of the matter which were the subject of the investigation. MAL14 was not in any way involved in the investigation and it was no part of the offender’s plan to have MAL14 do anything apart from give him some support as a friend.

21 The next day they had a further discussion in which they discussed whether the offender should disclose the conversation of the previous night to the PIC when he gave evidence. They reached the view that they should not disclose it. These discussions are an uncomfortable reminder of the practice, well publicised in the Wood Royal Commission, of police officers “scrumming down” before they went to court.

22 It was in those circumstances that the offender gave evidence in private on 27 April 2007. During that evidence he was asked by counsel assisting whether he had contacted any persons other than his supervisor in respect of the matter being investigated by the PIC. The offender, who said in evidence to me that he was not prepared to directly lie, seized upon an interpretation of that question which allowed him to answer that whilst he had contacted another police officer involved in the matter and his solicitor, he had had no other contact.

23 It is important to note that the offender pleaded guilty to giving misleading evidence to the PIC. He is not to be sentenced as though the evidence he gave to the PIC was false. On one view, what he said was literally true, but he concedes that it was misleading.

24 Soon after the offender gave that evidence and before he was aware that it could be proved that he had discussed with MAL14 things he should not have discussed, he went to his solicitor and told his solicitor what he had done. His solicitor suggested that when the offender gave evidence at the later public hearing he would get the chance, in response to questions from his solicitor, to disclose his conversation with MAL14 and to thus admit that he had misled PIC in the private hearing. As it turns out, he never got the chance to do that because, when he was called back to give evidence in the public hearing tape recordings of his conversation with MAL14 were played to him before he could be asked any questions by his solicitor.

25 Having dealt with the circumstances of the offender’s offence it is convenient at this stage to consider an aspect of the submissions made by Mr Dailly SC who appeared for the offender, concerning the extent to which the offender is remorseful. Mr Dailly suggested there is powerful evidence of the offender’s remorse in his plea of guilty, especially to the latter offence. Of course, not everyone who pleads guilty is remorseful. In some cases, a plea of guilty simply reflects the inevitable. That is far from this case. Where an offender pleads guilty in the face of a very weak prosecution case, that can be powerful evidence of remorse. I am satisfied that that is the case here. Had the matter gone to trial the Crown would have had to prove that the offender’s evidence was “misleading” in a “material particular”. It is entirely possible, indeed it may even be likely, that had the matter proceeded to trial the Crown would have failed to satisfy a jury beyond reasonable doubt of at least one of those two elements.

26 I would not like it to be thought that this is the only evidence of the offender’s remorse. There is much more. But I mention this aspect of the matter at this stage so that my conclusion can be seen in the context of the facts of this offence. The fact that the offender pleaded guilty despite a strong chance of acquittal, and the fact of his earlier contact with his solicitor designed to ensure that he could disclose something adverse to his interests before knowing that his conversation with MAL14 had been recorded, showed the extent to which the offender is sorry for what he has done and how much he takes responsibility for it.

27 As I mentioned at the outset of these remarks the offender’s career as a policeman is over. He was informed that he was about to be served with a notice requiring him to show cause why he should not be dismissed as a police officer. He understood his career to be finished at that stage and on 31 July 2008 his service ceased when the Police Department accepted that he was medically unfit to carry out the duties of a police officer. That is a terribly sad way for the offender’s police career to end. He had been a police officer from the age of nineteen, regularly receiving promotions which reflected his abilities and his dedication to his job. He received commendations, medals and awards along the way. Former colleagues gave glowing accounts of the sort of police officer the offender was, including, somewhat remarkably, the very officer whose direction the offender had disobeyed, Mark Goodwin.

28 I received evidence from those former colleagues, and others as well, as to the devastating effect the commission of these offences and the publicity given to them has had on the offender and his family. The offender said that one moment he was a proud and respected police officer but within a week he was accused of being corrupt, and his private conversations were being published on the Internet. He has now become something of a recluse, avoiding his former friends and colleagues in order to avoid them being embarrassed by contact with him.

29 His family has suffered too, in particular, his daughter. However, the effects on the offender’s family are not exceptional. They are unfortunately all too common place consequences for the families of those who commit criminal offences. Although the effects on the offender’s family are not exceptional and, thus, I cannot take them into account as mitigation of the appropriate penalty, I can take into account the circumstance that the offender has suffered and greatly so when he thinks of what he has done to his family, in particular, I gather, his daughter.

30 The offender was, before these offences, a man of the utmost good character. Not only is this relevant to the way the High Court described in Ryan v The Queen (2001) 206 CLR 267 but is also relevant to the question of whether I accept the offender’s evidence and, in particular, his evidence as to why he disobeyed the direction from Mr Goodwin. I do accept that the offender believed that he was doing the right thing by revealing what he had been told not to reveal. This evidence, of course, would have been much worse if there had been some more sinister motivation behind what the offender did.

31 There is evidence from a Dr Wilkins, a psychiatrist, suggesting that the offender’s mental state would have adversely impacted his ability to choose whether or not to mislead the PIC about whether he had spoken to MAL14. I accept that the offender’s highly stressed state may have contributed to his decision to fail to disclose the conversations with MAL14. On the other hand, it is important to note the decision appears to have been a premeditated one, one that he had come to the night before when he and MAL14 discussed what he would say at PIC.

32 Mr Dailly accepts that the offender’s misconduct is made worse because he was a police officer at the time, albeit of course the fact that he held public office was an element of one of the offences. On the other hand, the fact that the offender was a police officer with a very promising career means that the loss of that career amounts to significant extra curial punishment.

33 There is of course the issue of delay. The misconduct offence occurred in October 2006. He was not charged with it until two years later. The offence of misleading PIC occurred in April 2007 and it was eighteen months before he was charged with that matter. For all of that time the offender was left in the state of great suspense knowing it was very likely that he would ultimately have to pay the price for his misconduct. This was not a case where the offender was able to put the matter to one side and get on with his life confident that he would never have to face this day.

34 The offence of misleading PIC could have been dealt with summarily and it would not have at all been surprising to have been dealt with in the Local Court. It was not, however, because of the other offence which, being a common law misdemeanour, must be dealt with in this Court. But that offence could easily have been prosecuted, as I mentioned earlier, as a breach of s 201 of the Police Act which could have been dealt with in the Local Court. It is thus something of an accident that the offender is being sentenced in this Court.

35 One can accept that when a person, in particular a police officer, tells lies to the Police Integrity Commission, it is an offence which would usually result in a sentence of full-time custody. However, this is not a case where, as I mentioned earlier, the offender told lies to PIC. As I said, what he said in evidence was literally true, although he concedes it was misleading. Further, there is evidence, which I accept, both from the offender and his solicitor, that soon after he misled PIC he took steps to bring about a situation where he was able to inform PIC of what had really occurred. For reasons which I explained that never came about, but that was through no fault of the offender.

36 For these reasons I am satisfied that it is not necessary that a sentence of imprisonment be imposed upon the offender. For the offence of misleading PIC, instead, I have determined, after he has been assessed as being suitable for a community service order, that that is the appropriate penalty. In relation to the offence of misconduct in a public office, for reasons which I have explained earlier in these remarks the offender will be fined.

37 The offender is sentenced as follows:

38 For the common law offence of misconduct in a public office the offender is fined $2,000.

39 For the offence of misleading PIC he is ordered to perform 200 hours community service.

40 For the purposes of administration of the order he is to report to the Hurstville office of the New South Wales Probation and Parole Service within seven days.

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