Wade v The Queen

[2011] NSWDC 206

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wade v R [2011] NSWDC 206

Hearing dates:

15 April 2011

Decision date:

15 April 2011

Before:

Neilson DCJ

Decision:

Appeal allowed

Set aside sentences passed by the Local Court at Campbelltown on 24 February 2011

Catchwords:

CRIMINAL LAW - Sentencing - Extra Curial Punishment - Whether loss of job and career as senior prison officer should be taken into account as a mitigating factor - Sentences imposed by Local Court reduced

Cases Cited:

Lancaster and Touhy (1991) 58 A Crim R 209
R v Richards (1982) 2 Cr App Reps 119
R v Stanley and Spindler (1998) 3 Cr App Reps 373

Texts Cited:

Ivan Potas, Sentencing Manual (2001) Judicial Commission of New South Wales at 305

Category:

Principal judgment

Parties:

Regina
Sebastian Wade

Representation:

Mr R F Stainer (Crown)
Mr Russell (Appellant)

File Number(s):

2010/26883; 2010/377592

Judgment

1. HIS HONOUR: This is an appeal against the severity of sentences passed by Magistrate Degnan sitting in the Local Court at Campbelltown on 24 February 2011. His Honour delivered written remarks on sentence which are the best I have seen from any magistrate in the five years that I have been sitting in crime. To outline the background of the appeal, it is necessary for me to cite some of what his Honour said. Commencing at [3] his Honour said this:

"3. The offender was employed as a Corrections Officer since 2002. In 2009, he was based at the John Moroney Correctional Centre ...

4. On 20 November 2009, the offender met Sara Davis at the Shell Service Station in Berkshire Park, where he received cannabis leaf to smuggle to inmate, Benjamin Maule in the John Moroney Correctional Centre. The offender also received $300 cash from Davis for the performance of the illegal service ...

5. On 25 November 2009 the offender met Adriana Obierzynski at the same Shell Service Station, where he received a Polo brand top and a CD of downloaded songs to smuggle to her brother, inmate, Zachary Obierzynski in the John Moroney Correctional Centre. The offender also received $300 cash from Adriana Obierzynski for the performance of the illegal service ...

6. On 25 January 2010, the offender met Michael Holland at Holland's residence, where he received some cannabis leaf, vodka in a water bottle and some tablets to smuggle to inmate Jared Tidsley in the John Moroney Correctional Centre. The offender also received $300 cash from Holland for the performance of the illegal service ... Later the same day, the offender was arrested as he was about to enter the John Moroney Correctional Centre. When searched he was found to be in possession of the cannabis leaf, the vodka and a few tablets. Police also recovered $510 from the offender's vehicle. When later interviewed by police, the offender conceded the meeting with Holland, but claimed he was smuggling the cannabis leaf under duress and that rather than smuggle it into the prison, he was going to alert the prison's Executive Officers of the true situation. In the same interview, he denied receiving any money from Holland, or having previously smuggled prohibited drugs into the prison.

7. On 26 February 2010, the offender was called to give evidence before the Independent Commission Against Corruption (ICAC). Despite a declaration that he must tell the truth, the offender lied in his testimony by:

Falsely claiming he was acting under duress, including the receipt of threatening letters from inmates;

falsely claiming he did not receive any cash from Adriana Obierzynski;

falsely claiming to have met Sara Davis to discuss a home loan: Davis was employed by Bankwest; and

falsely claiming he was intending, on 25 January 2010, to surrender to the prison Governor, the cannabis leaf, the vodka and the tablets found in his possession.

8. On 28 April 2010, having been shown the surveillance evidence, the offender confessed to [the] ICAC that he had lied on 26 February 2010.

9. The offender has no previous criminal history."

1. His Honour accepted that the appellant had pleaded guilty to each of the charges which he faced at the earliest available opportunity. His Honour accordingly allowed a discount of twenty - five per cent of the proper sentences to be passed upon the appellant. In [28] of his reasons, his Honour set out the following table of the offences and the head sentences:

"1. Supply prohibited drug on 25 January 2009, eight months.

2. Corruptly receive benefit on 25 January 2009, sixteen months.

3. Corruptly receive benefit on 20 November 2009, sixteen months.

4. Corruptly receive benefit on 25 November 09, sixteen months.

5. Give false evidence to the ICAC multiplied by four, twenty months."

In the next paragraph his Honour applied the twenty - five per cent discount, such that the sentences became:

"1. Supply prohibited drug on 25 January 09, six months.

2. Corruptly receive benefit on 25 January 09, twelve months.

3. Corruptly receive benefit on 20 November 2009, twelve months.

4. Corruptly receive benefit on 25 November 09, twelve months.

5. Give false evidence to the ICAC multiplied by four, fifteen months."

1. There is one mathematical sentencing error in his Honour's reasons. Having found that the appropriate head sentence for the four counts of giving false evidence to the ICAC was fifteen months, his Honour then sentenced the appellant to imprisonment for those offences for sixteen months. That error needs to be corrected.

1. A submission was put to the learned Magistrate by learned Counsel for the appellant about extra curial punishment. In [24] of his reasons his Honour said this:

"Counsel for the offender additionally made submissions to the Court on the further mitigating factors of extra curial punishment, and the impact of a sentence on his eight year old daughter. There is no issue the offender has lost his career with Corrective Services. Any further involvement in the administration of justice would be untenable considering the commission of offences that intentionally and flagrantly interfered with the administration of justice. In the circumstances of this case, I find that the loss of the offender's career should be afforded no weight."

1. In the next paragraph his Honour went on to point out that the general principle of hardship to the family and the offender's dependents is generally not applicable unless there are truly exceptional circumstances and there were no truly exceptional circumstances in the current matter.

1. There is no exception taken to what his Honour said about hardship to the offender's child. However, it has been submitted on this appeal that his Honour erred in failing to take into account the loss by the appellant of his career in the Department of Corrective Services because of his misconduct in office.

1. I am told some background of the appellant's working life in the Pre - Sentence Report. The appellant attended Colo High School to Year Ten when he obtained the School Certificate. He then entered into an apprenticeship as a pastry cook and part of his apprenticeship involved attending Ryde TAFE. When he completed his apprenticeship he obtained a certificate of proficiency as a pastry cook. The appellant was then continuously employed in the baking industry until he joined the Department of Corrective Services in 2002. The appellant held that position for the best part of eight years, before his employment was terminated due to the matters for which the appellant stood for sentence.

1. The appellant, in fact, became a Senior Prison Officer, and at the time he was charged with the matters for which he stood for sentence, he was responsible for a small number of inmates working in the Industries Section at the John Moroney Correctional Centre. After his services as a Corrections Officer were terminated, the appellant returned to his trade working as a baker at Katoomba, and was so working at the time that the sentence hearing was conducted. The appellant told the Acting - Director of the Windsor District Office of the Probation and Parole Service that he was then earning $850 per week as a baker at Katoomba and that his weekly outgoings on his mortgage, his car loan, and child maintenance amounted to approximately $645 per week. He, accordingly, was left with $205 per week to provide for his sustenance and other outgoings.

1. I have been told, without objection from the Bar table, that as a Senior Prison Officer, the appellant had been earning $76,000 per annum, which is approximately $1461.50 per week, which gave him a net income of around $1000 per week. The appellant clearly has suffered financial disadvantage because of losing his job. However, he has lost more than a job. He has lost a career with prospects of advancing in the Department of Corrective Services to, for example, becoming a commissioned Corrective Services Officer.

1. He has also, because of his misconduct and his deceit, lost any opportunity of ever obtaining employment again in the New South Wales Public Service and I dare say in the Federal Public Service, and lost any prospect in the future of obtaining any position where trust and integrity is required. The offender, by his conduct, has greatly narrowed his employment opportunities.

1. The question is, is this extra curial punishment, and ought it to have been acknowledged by the learned Magistrate? In my view, the answer to each of those questions is, yes. The reasons given by the learned Magistrate for not taking into account the loss of the offender's career seem to me to indicate that his reasoning was that because the offender abused his office as a Senior Prison Officer, he had only himself to blame for the loss of his career and, therefore, it should be afforded no weight. If that were the learned Magistrate's reasoning process, then it is inconsistent with authority.

1. In R v Richards (1982) 2 Cr App Reps 119, the Court of Appeal considered an appeal against a sentence passed upon a medical practitioner. Richards had been a general practitioner in Bristol since 1956. He obtained moneys by deception, to which he was not properly entitled, from the Avon Area Health Authority by submitting false claims for payment. The local equivalent of that offence would be a medical practitioner making a false claim for reimbursement from Medicare. The total amount obtained improperly by Richards was £ 222. The Lord Chief Justice pointed out that as the offender was paying income tax, the net profit to the offender, and the net loss to the public purse, was "not very considerable".

1. One of the reasons that the Court of Appeal took into account in reducing the sentence was the following consideration:

"The appalling consequences which face a professional man in these circumstances, it is suggested, were not sufficiently realised or taken into account by the Judge. It is obvious that the appellant will have to face the Disciplinary Committee of the General Medical Council and it is not difficult to guess what the result of that appearance must inevitably be. It is, in short, the end of this man's career, and at the age of 57 or 58, it will not be possible for him to work his way back into practice in the way that a younger man could do."

In Richards the offender had abused his position as a Medical Practitioner to obtain a financial benefit for himself. In so doing, he had taken a step which would end his career as a medical practitioner. Nevertheless, the English Court of Appeal, comprising the Lord Chief Justice, and Mr Justice Griffith and Mr Justice Webster, believed that it was a factor to be taken into account in mitigation that the offender would, by his own misconduct, lose his career as a medical practitioner.

1. In the "Sentencing Manual" compiled by Mr Ivan Potas, and published by the Judicial Commission of New South Wales in 2001, the author says in Chapter 6 Part 5C at page 305 this:

"Financial loss may be a mitigating factor where it relates to a permanent loss of livelihood consequent upon imprisonment."

However, the author does not cite any authority for that proposition but does cite authority for associated principles.

1. One of the authorities cited to me by Mr Russell is R v Stanley and Spindler (1981) 3 Cr App Reps 373. In that case Stanley was a Colour Sergeant in the Cheshire Regiment, having joined the British Army in 1961. He had given false evidence on a driving charge before the Chester Magistrates. He pleaded guilty at the Crown Court to a charge of perjury. He was sentenced to imprisonment for three months. The judgment of the Court of Appeal (Watkins LJ, Park and Taylor JJ) was given by Park J, who said:

"It is quite plain from the documents before this Court, that if the sentence of imprisonment is allowed to stand, then Stanley will be discharged from the Army. The consequence would be that he would lose an Army pension estimated at £ 60 a week, which he would otherwise have enjoyed for the remainder of his life. That penalty would be so serious a consequence of this offence that, in our judgment, this appellant ought not to be required to suffer it, serious though the offence of perjury is."

1. The Court set aside the sentence of three months imprisonment and substituted a bond to be of good behaviour for two years. In that case, it was not that that the offender's livelihood was completely destroyed, but rather that he would lose his accumulated pension rights. In the current matter it is accepted that the appellant would lose all the employer contributions made by the State of New South Wales to his superannuation because of the circumstances in which his services were terminated, which could be a major financial impost.

1. Australian case law also supports the decision of the English Court of Appeal in R v Stanley and Spindler . In Lancaster and Touhy (1991) 58 A Crim R 209, it was pointed out that in sentencing members of the Armed Forces sufficient weight must be given to the fact that custodial penalties will result in discharge from the Army. In addition to that, such offenders would lose their pension rights and they may well have no qualifications for trained work in civilian life.

1. Here, of course, the appellant does have qualifications for trained work in civilian life, but it is a relevant fact to take into account that a member of the Armed Forces might lose his career. Equally there are a large number of cases pointing out the difficulties faced by former members of the Police Force who not only lose their careers on committing crime, but may also lose pension benefits and retirement gratuities as well as being subject to harassment when in custody. The latter fact, of course, also applies to former Corrective Service Officers and was certainly taken into account by Magistrate Degnan in the current case.

1. However, the appellant has suffered, in my view, extra curial punishment which must be taken into account. He has lost his career, he has lost any comparable career. He is certainly financially disadvantaged and that should be taken into account.

1. I was asked by learned Counsel for the appellant to reduce the effect of non - parole period from eighteen months to twelve months, and it must follow that there must be a consequent reduction in the overall head sentence. That fixed by the learned Magistrate was effectively twenty - eight months, but because of the mathematical error, that should have been twenty - seven months. I have come to the view that I should reduce both the head sentence and the non - parole period by three months to account for the extra curial punishment which was not acknowledged by the learned Magistrate. The only thing that remains for me to do is to re - sentence the appellant, who was granted bail at the commencement of this appeal.

[FURTHER SUBMISSIONS]

1. HIS HONOUR: For those reasons, I allow the appeal. I set aside the sentences passed by the Local Court at Campbelltown on 24 February 2011.

1. Sebastian Wade, on each of the charges of supplying a prohibited drug on 25 January 2010, and corruptly obtaining a benefit on 25 January 2010, I sentence you to imprisonment. I set a non - parole period of six months commencing on 15 April 2011 and expiring on 14 October 2011. I impose a further period of imprisonment of six months to commence upon the expiration of the non - parole period and expiring on 14 April 2012. The total sentence is therefore one year, comprising the non - parole and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non - parole period.

1. For the offence of corruptly receiving a benefit on 20 November 2009, I sentence you to imprisonment. I set a non - parole period of six months commencing on 15 July 2011 and expiring on 14 January 2012. I impose a further period of imprisonment of six months to commence upon the expiration of the non - parole period and expiring on 14 July 2012. The total sentence is, therefore one year comprising the non - parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non - parole period.

1. For the charge of corruptly receiving a benefit on 25 November 2009, I sentence you to imprisonment. I set a non - parole period of six months commencing on 15 October 2011 and expiring on 14 April 2012. I impose a further period of imprisonment of six months to commence upon the expiration of the non - parole period and expiring on 14 October 2012. The total sentence is therefore one year, comprising the non - parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the on - parole period.

1. On each of the four charges of giving false evidence to the Independent Commission Against Corruption I sentence you to imprisonment. I set a non - parole period of six months commencing on 15 January 2012, and expiring on 14 July 2012. I impose a further period of imprisonment of nine months to commence upon the expiration of the non - parole period and expiring on 14 April 2013. The total sentence is therefore one year and three months, comprising the non - parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non - parole period.

1. Effectively, Mr Wade, that means you will be incarcerated today and you will be first eligible for release to parole, or you will be released to parole, on 14 July next year, which is in 15 months. You will then be on parole for a period of a further nine months. Any other orders sought?

STAINER: No, your Honour.

**********

Amendments

21 November 2012 - Amended title - surname of appellant only

Decision last updated: 21 November 2012