Taylor v The State of Western Australia
[2015] WASCA 72
•9 APRIL 2015
TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 72
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 72 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:201/2014 | 16 MARCH 2015 | |
| Coram: | McLURE P MAZZA JA | 9/04/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHELLE JANICE TAYLOR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Leave to appeal against sentence Totality Manifest excess |
Legislation: | Criminal Appeals Act 2004 (WA), s 27 Criminal Code (WA), s 83(c), s 440A(3)(c) |
Case References: | Hull v The State of Western Australia [2005] WASCA 194 JM v The State of Western Australia [2015] WASCA 40 R v Combo [2015] WASCA 34 Wade v The Queen [2011] NSWDC 206 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 72 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 360 of 2014
Catchwords:
Criminal law - Leave to appeal against sentence - Totality - Manifest excess
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Criminal Code (WA), s 83(c), s 440A(3)(c)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A J Robson
Respondent : No appearance
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hull v The State of Western Australia [2005] WASCA 194
JM v The State of Western Australia [2015] WASCA 40
R v Combo [2015] WASCA 34
Wade v The Queen [2011] NSWDC 206
1 McLURE P: This is an application for an extension of time and for leave to appeal against sentence. The delay is adequately explained. The outcome depends on the merits of the grounds of appeal.
2 The appellant was convicted on her fast-track pleas of guilty of two counts of, being a public officer, without lawful authority or a reasonable excuse acting corruptly in the performance or discharge of the functions of her employment so as to gain a benefit for another contrary to s 83(c) of the Criminal Code (WA) (Code) and seven counts of unlawfully using a restricted-access computer system contrary to s 440A(3)(c) of the Code.
3 On 31 October 2014 the appellant was sentenced by O'Neal DCJ to a sentence of 2 years' imprisonment on each count of official corruption (counts 1 and 2), 4 months' imprisonment on six counts of unlawful use of a restricted-access computer system (counts 3, 4, 5, 7, 8 and 9) and 6 months for the unlawful use of a restricted-access computer system the subject of count 6. The sentencing judge ordered that the sentences imposed on counts 1 and 9 be served cumulatively with the balance of the sentences to be served concurrently resulting in a total effective sentence of 2 years 4 months' imprisonment.
4 The appellant's grounds of appeal are that the individual sentences are manifestly excessive in type (ground 1) or alternatively, in relation to counts 1 and 2, in length and that the total effective sentence breaches the first limb of the totality principle (ground 3).
5 The facts of the offending are as follows. The appellant was employed by the Department of Corrective Services (Department) as a case manager coordinator in the West Kimberley Regional Prison (prison), a position she held from December 2012. The appellant was a public officer as defined in the Code. The appellant's role was to facilitate the development and management of programmes to guide other prison staff in preparing prisoners for their return to the community. To perform the functions of her office, the appellant was granted access to the grounds of the prison and had contact with inmates.
6 The appellant was supplied a telephone in her office which was neither recorded nor monitored by prison security staff. On commencing employment within the prison and again as late as 4 June 2013, the appellant was given security briefings in relation to inmate use of telecommunication systems within the prison. She knew that all calls made by prisoners were to be made on telephones which were recorded and could be monitored by security staff.
7 In relation to count 1, on Monday 10 June 2013 the appellant was in her office at the prison with inmate A. At about 4.30 pm the appellant permitted inmate A to use her office telephone in order to call an associate of his. She was aware that inmates were not permitted to use this telephone.
8 During the telephone call between inmate A and his associate, the appellant remained in her office. She became aware the conversation related to inmate A wanting to access prohibited drugs. As inmate A's associate was aware he was calling from the prison, the associate was reluctant to discuss drug matters on a telephone where the conversation would be recorded. To alleviate the associate's concerns, the appellant took the telephone and informed the associate that the telephone call was not being recorded, that she was not a prison officer and that he could speak freely to inmate A.
9 Inmate A then continued the telephone conversation with his associate and began orchestrating a meeting between the associate and the appellant, inmate A's intention being that the appellant would collect drugs from the associate and convey them into the prison for inmate A. To assist in facilitating a meeting, the appellant provided inmate A with her personal mobile number which inmate A provided to his associate.
10 Telephone records showed that on the evening of 10 June 2013 and during 11 June 2013 a telecommunication service used by the appellant communicated with services used by inmate A's associate.
11 As to count 2, on Tuesday 13 August 2013 when the appellant and another inmate (inmate B) were in her office, the appellant received a telephone call from (now former) inmate A ('A'), who she knew to be a friend of inmate B. 'A' had been released from prison on 15 July 2013. At 1.58 pm on that day the appellant handed inmate B the telephone so he could speak with 'A'. During the telephone conversation, the appellant counselled inmate B on the volume of his voice and stood at the doorway of her office keeping a watch for other persons so inmate B's use of the telephone would not be discovered.
12 In order to perform her duties in the prison, the appellant was granted access to computer data of the Department and Western Australian police. The computer data was password-controlled to prevent unauthorised access. The appellant was permitted access to this data only for the purpose of performing her duties as an employee of the Department.
13 As to count 3, on 13 August 2013, an hour before count 2, the appellant was in her office with inmate B and together they discussed the identity of a female whom inmate B believed had arrived at the prison earlier that day. At 12.59 pm the appellant accessed the Department's restricted-access computer records and advised inmate B that no female had arrived at the prison that day.
14 As to count 4, as the conversation between the appellant and inmate B continued, inmate B asked if the appellant was able to provide him with information as to the whereabouts of his father. At 1.00 pm on 13 August 2013 the appellant accessed the Department's restricted-access computer records in relation to inmate B's father. The appellant advised that there was no indication as to where inmate B's father was at the time.
15 As to count 5, on 13 August 2013 the appellant and inmate B discussed when another inmate (inmate C) would be eligible for parole. At 2.29 pm on that day the appellant accessed the Department's restricted-access computer records in relation to inmate C. The appellant told inmate B the date when inmate C could be considered for release from prison.
16 As to count 6, on 13 August 2013 the appellant and inmate B were discussing a family known to both of them. At 2.54 pm on that day the appellant accessed the Department's restricted-access computer records of a man (D) and the appellant turned the monitor towards inmate B so he could view an image of D on the screen.
17 As to count 7, on 22 August 2013 the appellant was in her office with inmate B and another inmate. One of the inmates asked the appellant if she would check to see if a person (E) was incarcerated at the Broome watch house. At 4.02 pm on that day the appellant accessed the Department's restricted-access computer records of E. The appellant read to the inmates a section of a statement of material facts relating to E and advised that E had been released.
18 As to count 8, on 22 August 2013 the appellant and two inmates continued to discuss people known to the inmates and one of the inmates asked the appellant as to the whereabouts of an associate of his (F). The appellant used the Department's restricted-access computer system in an attempt to locate computer records of F. At 4.04 pm on that day the appellant accessed the personal records of a person with the same surname as F and discussed with the inmates whether this person was F.
19 As to count 9, on 22 August 2013 the appellant continued to converse with the two inmates in her office and together they spoke of another inmate's former partner (G). At 4.20 pm on that day the appellant attempted to access the Department's restricted-access computer records of G and in her attempts to locate them, the appellant accessed the personal details of another person with the same surname (H). While examining the details, the appellant told the inmates that an associate of hers was once involved in a restraining order matter with H.
20 The sentencing judge found that the appellant's offending involved repeated breaches of trust that undermined or tended to undermine the integrity of the corrections system (ts 47). He also found that the appellant's unlawful access to the Department's restricted-access computer system had a real prospect of endangering the people about whom information was being disclosed (ts 47).
21 The appellant was aged 43 at the time of sentencing. Her second marriage of nine years was in the process of ending at the time the offences were committed. The appellant had obtained a Bachelor of Arts from the University of Western Australia and after leaving university was employed, variously, as an Aboriginal liaison officer, primary school teacher and Department of Child Protection field officer before becoming a case manager coordinator at the prison.
22 The appellant had no prior record and references before the sentencing judge spoke of the appellant's dedication and professionalism in her work.
23 The sentencing judge reduced the head sentences by 20% for the pleas of guilty. He accepted that the appellant's prospects of rehabilitation were good, that she was remorseful, and that a term of imprisonment would be difficult for the appellant's children, her daughter aged 15 and her son aged 8. However, the appellant's counsel accepted that the appellant's family circumstances were not so exceptional as to amount to a separate factor in mitigation.
24 The sentencing judge also took into account matters of cooperation which he regarded as mitigating and as a further indication of the appellant's remorse and willingness to facilitate the administration of justice.
25 As the sentencing judge correctly observed, all of the offences, but in particular the corruption offences, were very serious. He continued:
They undermine the maintenance of the prison system as a place of correction. They undermine the whole concept of rehabilitation. The public rightly expects that everyone connected with the administration of justice from police to prosecutors, judges and those employed who are serving in the correction system will maintain the highest standards of integrity.
When that trust … is abused there is a proper expectation that it will be regarded seriously and punished appropriately (ts 49 - 50).
26 The sentencing judge gave express consideration to whether the sentences should be suspended. Notwithstanding the many mitigating factors, he concluded that suspension was inappropriate.
Legal principles
27 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
28 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
29 Sentences imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect.
30 Manifest excess applies to an individual sentence. The totality principle applies to the total effective sentence for multiple offences. A breach of the totality principle is also a claim of implied error.
31 The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
Manifest excess - type and length
32 There is no arguable basis for the claim that any of the sentences are manifestly excessive either in type or length. The offences involved gross breaches of trust that strike at the very heart of the administration of the criminal justice system. General deterrence must be the dominant sentencing consideration. The only appropriate sentencing option for the appellant's offending is a term of immediate imprisonment, the lengths of which are clearly within range.
33 That is the case notwithstanding the mitigating factors identified by the sentencing judge and elaborated on in the appellant's written supplementary submissions dated 12 March 2015. As to the scope and application of the principles relating to cooperation in sentencing, see R v Combo [2015] WASCA 34 [65] - [68] and JM v The State of Western Australia [2015] WASCA 40 [31] - [37]. Further, the concession by the appellant's counsel that her family circumstances were not so exceptional as to amount to a separate factor in mitigation was correctly made.
34 As to the standards of sentencing customarily imposed, reliance was placed on two cases, Hull v The State of Western Australia [2005] WASCA 194 and Wade v The Queen [2011] NSWDC 206. Two cases do not establish any customary sentencing range. In any event, the cases are not relevantly comparable for the purpose of assessing broad consistency.
35 In Hull, the offender was convicted on her pleas of guilty of one offence of acting corruptly as a public officer and one offence of unauthorised use of a computer. She was sentenced to a total effective sentence of 15 months' imprisonment. The Court of Appeal, by a majority, suspended that term for a period of 2 years. The offender abused her position as a public servant in a motor vehicle licensing centre. Her family circumstances were also exceptional. The circumstances of the appellant's offending are substantially more serious than in Hull.
36 Wade is an appeal from a magistrate to a single judge of the District Court of New South Wales. The offender, a prison officer in the employ of the New South Wales Department of Corrective Services, smuggled drugs and other things into a prison. On appeal, the District Court judge reduced the offender's total effective sentence for his eight offences to 24 months. The reasons for decision do not identify the specific offences with which the offender was charged or the maximum penalty for the offences, all of which were dealt with summarily. The outcome in Wade does not assist the appellant. In any event, when considering a claim of manifest excess in relation to a sentence for an offence against the law of this State, broad consistency is assessed by reference to the sentences imposed in comparable cases in this jurisdiction
37 I would refuse leave to appeal on grounds 1 and 2.
Totality
38 This claim is, in effect, that the total effective sentence should be 2 years, not 2 years 4 months. When framed in that way, it is obvious that the claim of implied error must fail. The total effective sentence imposed by the sentencing judge is well within the sound discretionary range for the overall criminality of the appellant's offending in all the circumstances of the case. Leave to appeal on ground 3 should be refused.
Conclusion
39 None of the grounds of appeal have a reasonable prospect of succeeding. Accordingly, leave to appeal must be refused and the appeal is taken to have been dismissed: Criminal Appeals Act 2004 (WA), s 27(2) and (3).
40 MAZZA JA: I agree with McLure P.
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