R v Sarah

[2013] NZHC 959

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-17117 [2013] NZHC 959

THE QUEEN

v

TIMOTHY JOHN RUSSELL SARAH

Hearing:         3 May 2013

Counsel:         RMA McCoubrey and J MacGibbon for Crown

RM Mansfield and V Withy for Prisoner

Sentencing:     3 May 2013

SENTENCING NOTES OF TOOGOOD J

Solicitors:

RMA McCoubrey, Meredith Connell, Auckland:       [email protected]

R Mansfield, Barrister, Auckland:  [email protected]

R v SARAH HC AK CRI-2012-004-17117 [3 May 2013]

Introduction

[1]        Timothy John Russell Sarah, you appear for sentence having pleaded guilty to five charges, namely:

(a)       three counts of supplying the Class A drug methamphetamine,1

(b)      one count of possessing methamphetamine for supply;2 and

(c)       one  representative  count  of  accessing  a  computer  for  a  dishonest purpose.3

Factual background

[2]        I think it is only fair that I condition you to the outcome of the sentencing Mr Sarah,  by  telling  you  that  it  is  not  my  intention  to  sentence  you  to  home detention.

[3]        The  bare  statement  of  the  charges  which  I  have  just  made,  does  not adequately reflect the disgraceful nature of the behaviour which brought you here, or the true criminality of your offending.  You were one of a number of people whose activities came under scrutiny in the course of a Police investigation, Operation Ark, which was undertaken between 2009 and 2011.   What makes your crimes more reprehensible is that you are a qualified lawyer, you were an admitted member of the legal profession and throughout the period of your offending you were employed in Auckland by the New Zealand Police as a non-sworn Police prosecutor.

[4]        It was established not only that were  you passing on information from Police sources to criminals involved in Operation Ark, one of whom was supplying you with methamphetamine, but also that you were supplying methamphetamine

yourself.

1      Misuse of Drugs Act 1975, s 6(1)(c).

2      Misuse of Drugs Act 1975, s 6(1)(f).

3      Crimes Act 1961, s 249(1)(a).

[5]        The agreed summary of facts relating to the three charges of supplying methamphetamine discloses that you sold methamphetamine at street level in February 2010 and on at least eight occasions during July and August 2011.  After receiving coded text messages from associates requesting to purchase methamphetamine, you would arrange to meet the buyer at a discrete location and supply them with methamphetamine of varying quantities ranging from one to four grams at a time. This sometimes occurred while you were working. The total amount of methamphetamine supplied has been agreed at around 21 grams.

[6]        On 16 November 2011 your address was searched by Police. In both your car and your house the Police found zip-lock bags containing methamphetamine or methamphetamine residue. This gives rise to the charge of possession of methamphetamine for the purposes of supply.

[7]        Dealing in a Class A drug in those ways is serious enough in itself but more serious, in my view, was the discovery that between September 2009 and July 2011 you accessed the Police’s computerised National Intelligence Application on over 80 separate occasions.  This database contains much information which is not publicly available and may include things such as prosecution information; intelligence notings; and warnings and alerts on people, locations and vehicles.

[8]        You  conducted  searches  of  various  targets  and  persons  of  interest  in Operation Ark when you had no proper reason to do so.  You have tried to downplay the seriousness of this offending by claiming that most of the checks you carried out were out of mere curiosity and that you had no dishonest intent, on those occasions at least.  But the admitted facts reveal that after doing checks on several individuals you passed confidential and sensitive information on to the man who was supplying methamphetamine to you, intending it to be used for the benefit of others. Those actions were correspondingly disadvantageous to your Police colleagues and the public interest.

[9]        I do not accept that you were simply naive and acting out of misguided loyalty to a friend; nor do I accept your claim that you did not expect that the information you provided would be passed on to others.  You are an intelligent man

and  you  were  an  experienced  Police  prosecutor;  I  have  no  doubt  you  fully appreciated the significance of what you were doing and that a gross breach of your duty was involved in warning various associates of impending Police action.

[10]      In one six-minute conversation, you discussed with your supplier what you knew about the arrest of one of his associates and the interest of Police in another man, C.  That included information that the Police were closing in on C, as a result of which he was advised to leave Auckland or New Zealand due to the Police interest.  On another occasion you told an associate not to contact a certain person as that person was being watched by the Police.  It is apparent from the evidence that your supplier and others regarded the information you were able to give them as being important to their interests; I do not doubt you knew that.

[11]      It is important to distinguish here, I think, the passing on of information which you obtained from your association with other Police officers, and the trust and confidence they placed in you, and information which you obtained from the computer.  But the point is, Mr Sarah, that you accessed the computer looking for whatever information you could find for the benefit of your drug dealing friends.

Personal circumstances

[12]      You are 37 years old and you have no previous convictions.   That you should have engaged in the criminal conduct I have just described is not explained by your upbringing.  You have a close, loving family, including parents who – to their great credit – remain devoted to you and your well-being.  At considerable cost to them, you attended one of Auckland's leading private schools where you enjoyed academic and sporting success.  You then obtained a double degree at university and you were admitted to the legal profession.  After some time in private practice, you joined the Police prosecution service as a non-sworn member in June 2008 and worked there until your arrest in November 2011.

Character references

[13]      I have had the benefit of reading a large number of character references – I think 22 in all.  The members of your family who have written to the Court, and your girlfriend, describe the considerable commitment you have made to them and to your sister, your late uncle and grandmother in particular.   Friends (including members of the rugby club to which you have made a significant contribution) and former Police and legal colleagues also acknowledge you as possessing many admirable qualities.  The common themes of their representations are shock at your downfall, but continued support for your redemption.  It is clear that you have made a valuable contribution to society in a number of ways and that many people think very highly of you.

[14]      You appear to be driven to succeed – academically while at school and university, and in sport throughout most of your life.  You have attributed the start of your drug use to becoming obsessed about your physical training and to thinking that low-grade methamphetamine would give you added impetus. You say that your deep immersion in physical activity from early 2010 was brought about by a severely traumatic experience in mid-December 2009 where you witnessed a young woman harming herself in a particularly distressing manner.

Psychologist’s report

[15]      To explain the significance of that event, I have received a report from Dr Joseph Sakdalan, a clinical psychologist, who is well known to the Court and whose opinions are respected. After giving a comprehensive account of your history and symptoms, Dr Sakdalan concludes that have been suffering chronic post- traumatic stress disorder for the past three years and that it remained undetected and undiagnosed throughout that period.  You are now receiving therapy for that mental health problem from another specialist whose report I have read also.  You appear also to have taken positive steps to address the drug problems you have reported.

[16]      Focusing solely on your best interests, as he should, Dr Sakdalan expresses some concerns about your safety and the prospects for appropriate psychological

treatment within the prison system.   He considers you have expressed genuine remorse  for  your  offending  and  acknowledges  you  took  responsibility  for  your actions and did not attribute your offending to your mental health and drug problems. That was a proper approach to take.

Pre-sentence report

[17]      I  have  also  received  a  pre-sentence  report  prepared  by  the  Probation Service.  It is fair to say that you did not make such a favourable impression on the author of that report.  That may be due, in part, to the number of times you spoke to that person but also, in part at least, to the fact that you indicated to her that you enjoyed good physical and mental health; that although expressing remorse, your level of insight presented as somewhat disingenuous; and that you attributed your offending to an increased dependency on illicit substances.   You could give no reasonable explanation for your offending relating to accessing the Police computer which you appear to have reported to her in rather understated terms.

[18]      The report writer assessed you as being a low risk of reoffending, but she said  your  risk  may in  fact  be  higher  because  you  have  a  sound  knowledge  of offending behaviour, and yet still committed these offences. You are considered suitable for home detention but, in view of the serious nature of your offending, including the significant breach of trust, the report writer recommends a sentence of imprisonment and I have already indicated to you I agree with that assessment.

Purposes and principles of sentencing

[19]      I am required to consider a number of sentencing purposes and principles as set out in the Sentencing Act 2002.  The relevant purposes I have particularly taken into account are:

(a)      holding you accountable for the harm done to the community by both your involvement in the supply of Class A drugs and the potential erosion of trust in the Police as a result of your actions;

(b)promoting in you a sense of responsibility for, and acknowledgement of, that harm;

(c)       denouncing your conduct; and

(d)      deterring other persons from such offending.

[20]      I have had regard to the purpose of assisting you in your rehabilitation and reintegration.  I have also taken into account the principles of sentencing set out in s 8 of the Sentencing Act, particularly s 8(a) relating to the gravity of the offending and your culpability.

Sentencing approach

[21]     The approach I intend to follow4 in fixing the sentence involves considering the circumstances and seriousness of the offending you committed and setting what is known as the starting point with the aid of any guideline decisions or comparable cases.  Because there is more than one offence, I need to consider which offence to focus on as the lead offence and what effect the other offending should have on that sentence as well.  I then need to consider whether there are any relevant aggravating or mitigating features personal to you which might increase or reduce the sentence from that starting point.  Finally, I must apply an appropriate discount to reflect your guilty plea.

Submissions

Crown submissions

[22]     Taking   the   supplying   of   methamphetamine   as   the   lead   offending, Mr McCoubrey submits for the Crown that that offending alone would justify a

starting point  in  the vicinity of three to  four  years.5      He also  submits  that  the

4      R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

5      Recognising the low strength of the methamphetamine supplied, the Crown places the offending at the top of Band 1 in R v Fatu [2006] 2 NZLR 72 (CA) because of the period of the offending

and a degree of sophistication in the use of codes.

offending is aggravated by the significant breach of trust involved in that you were a Police prosecutor  at  the time  and  that  your offending seriously damages  public confidence in the Police.   He submits those factors make the appropriate starting point for the methamphetamine offending one of five to six years’ imprisonment.

[23]     As to the computer-related offending, the Crown says you must have known that you were obtaining information for criminals. The Crown argues this offending by itself  would  attract  a starting point  of around  two  to  two  and  a half  years’ imprisonment, but concedes that on a totality basis six to seven years’ imprisonment is appropriate for all your offending.

[24]     The Crown accepts that you are entitled to some discount for your prior good character in that you have no prior convictions, but it says that this discount must be slight because your position necessarily entailed an obligation of trust which you have betrayed. The Crown accepts you are entitled to a total discount in the vicinity of 25 per cent for your guilty pleas and remorse.

Offender’s submissions

[25]      On your behalf, Mr Mansfield accepts that cumulative sentences might be appropriate for your offending.   He submits that after taking into account all the relevant aggravating factors, a starting point in the vicinity of 18 months’ imprisonment is appropriate for the methamphetamine offending.   He also argues that a starting point of around 18 months’ imprisonment is appropriate for the charge of accessing a computer for a dishonest purpose, although he allows the possibility that that might be somewhat higher.  On a cumulative basis, the starting point would be  around  three  years’  imprisonment,  but  Mr  Mansfield  argues  that  a  proper reflection of the totality of your offending would be a starting point of around two and a half years.

[26]      He then submits that you are entitled to a discount of around nine months for a number of mitigating factors; your steps towards rehabilitation; and your previous good character and community support.  He also argues you are entitled to a discount of 5 per cent for remorse and 20 per cent for your pleas.  This approach,

on his submission, would result in a final sentence of around 16 months’ imprisonment,  which  would  engage  the  Court’s  jurisdiction  to  impose  home detention  which  Mr  Mansfield  has  said  he  considers  is  the  most  appropriate outcome.

Setting the starting point

[27]      While  I  have  been  assisted  by  the  written  and  oral  submissions  of experienced counsel, I have decided to structure your sentence in a somewhat different way to that put forward by them, although it may not affect the overall outcome.  Although it carries only a seven-year maximum term as opposed to life imprisonment  for  the  drug  offending,  I  consider  the  representative  charge  of accessing a computer for a dishonest purpose should be treated as the lead offence. In my view, your culpability for this particular offending is at the higher end of the range.

[28]      There is no tariff decision for the offence of accessing a computer for a dishonest purpose. I have, however, drawn assistance from the approach recommended by the Court of Appeal in R v Hayes,6  which was the first time the Court considered sentencing levels following the introduction of computer-based offences such as that with which you are charged.

[29]      In  Hayes,  the  Court  of  Appeal  also  emphasised  that  as  well  as  the aggravating factors, the starting point for computer-based offending will be set with regard to the maximum penalty.7    The offence with which you were charged was introduced in 2003 and, as I have observed, it carries a maximum penalty of seven years’ imprisonment.   Prior to the introduction of the Act, the Law Commission recommended that the starting point be set at 10 years’ imprisonment because serious cases could arise such as those involving “a person intentionally gaining access to a computer system operated by a national security or law enforcement agency with

major damage occurring through a careless or reckless act”.8  Whilst this is not of the

6      R v Hayes (2006) 23 CRNZ 547.

7 At [79].

8      Law Commission Computer Misuse (NZLC R54, 1999) at [94].

worst type imaginable, your offending is very much of that kind and those comments indicate that stern sentences denouncing and deterring such conduct should be imposed.

[30]      In setting the starting point, I have also taken into account other comparable decisions,9   and  the  factors  which  I consider  to  increase  your  culpability.    It  is noteworthy that most of the other cases involved misappropriation of money and not egregious breaches of trust such as occurred here.

[31]      In light of these considerations, the factors listed in s 9(1) of the Sentencing Act and the facts of the case, I consider that the following factors increase your culpability.

[32]      First, there is a gross breach of trust involved in your offending. You were a member of the legal profession employed by the Police.  As a Police prosecutor you had professional responsibilities to uphold and strict obligations to protect confidential and sensitive information.   The Police are entrusted by the public to enforce the law and keep the public safe.   Nevertheless, you saw fit to warn your associates of impending or current Police action.  Offending such as this undermines the integrity of Police operations and strikes at the heart of public confidence in law enforcement.

[33]      Second, the scale and nature of your offending is aggravating. This was not one-off offending; it is a representative charge and it involved you breaching the integrity of the Police computer database on over 80 occasions over a lengthy period of time. Because you were passing information to a man who was supplying you with methamphetamine, you must have known that the people you were searching or passing information to were criminals or associated with criminals. The type of information you were passing or could have access to on related to ongoing Police

operations and as such was highly sensitive and confidential.

9      While a number of these cases are factually different, they arise under the same charge and so contain useful assessments of relevant factors to consider: R v Hodgetts DC Auckland CRI-

2012-004-001809, 22 March 2012; R v Ta’avale DC Auckland CRI-2011-004-021267, 31 May
2012; R v Varjan CA97/03, 26 June 2003; Jackson v Serious Fraud Office [2012] NZHC 3297;
Whangapirita v Police [2012] NZHC 308; Singh v Serious Fraud Office HC Auckland CRI-
2008-404-000361, 4 March 2009.

[34]      Third,  this  was  deliberate  and  calculated  offending.    On  at  least  one occasion you said you would check the Police computer database under someone else’s name when they left their computer on to avoid detection.  I accept there is no evidence that you actually did that, but your guilty plea means inevitably that you must acknowledge you had a dishonest purpose.

[35]      Fourth, the indirect harm as a result of your offending should not be underestimated.10     Public policy dictates that law enforcement agencies must be given the tools to combat organised crime, particularly that which is involved in distributing hard drugs to the great detriment of the community.   That means that much  of  the  information  stored  on  the  Police  computer  systems  is  private information about citizens obtained by approved methods which would otherwise be unlawful.  But public policy also demands that the community must have absolute confidence that those who gather and store such information will observe the highest

standards of integrity and that the information obtained will be used only for legitimate purposes.   Your offending seriously undermines that confidence.   It is incumbent  on  the  courts  to  demonstrate,  by  imposing  condign  sentences,  that breaches of trust of this type and scale will not be tolerated.

[36]      I have not overlooked the sentences imposed on two of your co-offenders who faced the same charge for similar offending detected during Operation Ark. One was sentenced in the District Court to three months’ community detention from a starting point of 14 months’ imprisonment,11  and the other was sentenced to four months’ community detention from a starting point of 18 months’ imprisonment.12

However, they were sentenced on the basis that their offending was limited to one unlawful search; in my view it was significantly less serious than yours.

[37]      In light of all of the above considerations, I consider that the appropriate starting point for the representative count of accessing a computer for a dishonest purpose is one of not less than five and a half years' imprisonment.  That is a lengthy

period when considering that the maximum penalty is seven years’ imprisonment,

10     R v Hayes, above n 6 at [76].

11     R v Ta’avale, above n 6.

12     R v Hodgetts, above n 6.

but  in  my view  it  appropriately  reflects  the  high  degree  of  culpability  for  this offending.

[38]      Before turning to any personal factors which might mitigate the seriousness of that offending, I turn to the methamphetamine offending and the impact that should have on the starting point.  Both counsel suggested it might be appropriate to impose cumulative sentences for the two types of offending, but they rightly acknowledge that in doing so I am obliged to ensure that the effective end sentence

properly reflects the totality of your offending overall.13

[39]      You supplied around 21 grams of methamphetamine.  If that offending was looked at on that basis, it might fall within Band 2 of the Court of Appeal’s tariff decision in R v Fatu.14   Without more, a starting point in the vicinity of four years’ imprisonment would be appropriate.15     However, it is accepted that this was low quality methamphetamine and that you were a user dealing at street level.  There is

no evidence that you were dealing in order to make money.  Given that a total of nine transactions were involved, I consider the initial starting point under Fatu would be imprisonment for around three years.

[40]      Mr McCoubrey has submitted that your culpability is aggravated by the fact that while you were offending you held the position of a Police prosecutor charged with important responsibilities in the criminal justice system.  There is no doubt that selling illicit drugs during your lunch break, while carrying the important responsibility  of  prosecuting  others  for  the  same  thing,  is  breathtaking  in  its hypocrisy and cynicism.  It is offending which is independent of the unlawful use of the computer system and it will have damaged the reputation of the Police in whom the public must have complete confidence.  It would be possible to uplift the initial starting point on that basis, but I think it is better to treat your drug dealing as part of

the background to, and an aggravating factor in, the more serious offending.

13       Sentencing Act 2002, s 85.

14       R v Fatu [2006] 2 NZLR 72.

15See for example R v Ngo HC Auckland CRI-2007-0042-18264, 23 March 2010; R v Paki- Edwards HC Auckland CRI-2008-092-17198, 4 February 2010.

[41]      I propose to mark the drug offending by increasing the initial starting point of five and a half years for the computer crime by one year to reflect your overall culpability. This gives an overall uplifted starting point of six and a half years' imprisonment.

Taking account of mitigating personal factors

[42]      Personal factors are often said to carry little weight in sentencing for drug- dealing offences16  but you are being sentenced for another, more serious offence as well and it would be wrong not to give you credit for your previous good character. You have never been convicted of a criminal offence and the high esteem in which you were held, and the devastating effect on your chosen career, mean that the mere fact of your convictions is itself a substantial punishment.  That said, there is some force in the Crown’s submission that any weight to be given to these factors must be tempered by the consideration that without those positive qualities you would not

have been placed in a position of trust: responsibility accompanies the privileges of the position you held and you abandoned your responsibilities and abused the trust placed in you.

[43]      I have taken to heart, however, Mr Mansfield's eloquent plea on your behalf and the many requests for leniency in the testimonials submitted to the Court.  And I give weight to Dr Sakdalan’s report of your mental health issues.  He properly stops short of attributing your drug dealing and the breaches of the computer system to post-traumatic stress disorder, but I accept that you may have resorted to drug abuse as a coping mechanism and that that put you at risk of the more serious offending.  I acknowledge your expressions of remorse and give you credit for having taken steps towards your rehabilitation by undertaking appropriate courses and by involving yourself in voluntary community work.

[44]      On account of these mitigating factors, I am prepared to give you a discount of what may be an overly-generous eighteen months, or around 23 per cent. This reduces the sentence to one of five years' imprisonment.

Guilty plea

[45]      The final step is to consider what reduction you should receive for your guilty pleas.17    The Crown's case against you was a strong one; you have already benefited from a reduction in the number of charges initially considered; and your guilty pleas were not entered at the earliest opportunity.   Having already taken account of the remorse factor, I allow a discount on account of your pleas of 20 per cent which is the amount realistically suggested by Mr Mansfield.

[46]       On that basis you simply do not meet the threshold for a consideration of home detention as an alternative to imprisonment.

Result

[47]      Please stand, Mr Sarah.

[48]      On the count of accessing a computer for a dishonest purpose, you are

sentenced to four years’ imprisonment.

[49]      On   each   of   the   three   counts   of   supplying   the   Class   A   drug

methamphetamine, you are sentenced to three years’ imprisonment.

[50]      On the count of possessing the Class A drug methamphetamine for supply,

you are sentenced to three years’ imprisonment.

[51]     Those  terms  are  to  be  served  concurrently,  meaning  the  total  effective

sentence to be served is one of four years’ imprisonment.

[52]     Stand down.

...................................................

Toogood J