CL v R

5The sentencing judge discounted the sentence by 15% to take account of the utilitarian value of the plea of guilty.

Facts 6The facts set out below are derived from the Agreed Facts, which was the basis on which his Honour recited the facts in the remarks on sentence.

Count 1: aggravated enter with intent, in company and receiving (Form 1) 7From December 2000 the applicant was a Detective Sergeant at Burwood Local Area Command. In December 2003 he told Christopher Walker (a former police officer) and another person, X, about information that had been obtained by Licencing Police in the course of a firearms inspection. The information was that AL, the victim, had large amounts of cash, thought to be restaurant takings, in a safe in his home. 8On 4 December 2003, Mr Walker and X visited AL at home and pretended to be police officers. The applicant waited for them nearby in a van. Mr Walker and X persuaded AL to open his safe on the pretext that they were taking the money to "check the serial numbers". After leaving the house with the money, they went to the van where the applicant was waiting for them. He drove off in the van at speed. The applicant instructed one of his co-offenders to destroy the van's registration plates. They shared the proceeds, about $23,500, between them.

Count 2: aggravated enter with intent, in company and dishonestly obtaining a benefit by deception (Form 1) 9In late July 2004 a legitimate police operation named "Cobalt" was established. Covert intelligence revealed that the applicant, Mr Walker, X and two other individuals planned to steal from a criminal, AH. 10The applicant and a co-offender confronted AH with a warrant that appeared to authorise a search of his home. They used the ruse that AH's television was stolen. They asked AH how much money he was prepared to part with to avoid being prosecuted and suggested that the figure ought to be "at least ten [$10,000]. The applicant waited outside while co-offenders collected money from AH. One of the co-offenders used a scanner to monitor live police frequency and kept in contact with the applicant by two-way radio. Two security guards, one of them an undercover police officer, spoke with the applicant, who told them that he was there on police business and produced his police identification. 11A co-offender returned with $11,000 that he had obtained from AH. The co-offender took $1,000 out of the $11,000. Of the $1,000 that he had taken, he gave $800 to the applicant. The five co-offenders (including the applicant) left the area. They subsequently divided the remainder of the proceeds, $10,000, between them.

Count 3: unauthorised computer use with intent to steal 12On 23 September 2004, the applicant and his associates devised a plan to take money from various people. One target was Ms LT, who was suspected of running a fraudulent immigration business. The applicant obtained information about her from the Computerised Operational Policing System (COPS), a computer system operated by the police. In the meantime, Mr Walker had introduced the applicant to B, who acted as a go-between between the applicant and Mr Walker. 13The applicant and B discussed various plans and "targets" (the applicant's term), some of which involved large sums of money. The applicant told B that he could supply names, addresses and other information for B and others to stand over those people for money, by pretending to be police officers. On 8 September 2004 the applicant and B discussed targets by reference to the codes "the Old Man" and "the Australian couple". However the applicant instructed B that they had to target Ms LT first. 14The applicant learned from viewing COPS on 23 September 2004 that Ms LT was to attend court on 29 September 2004. He then discussed her case with the officer in charge of her matter. The applicant met B and told him that they were to confront "the Asian woman" [Ms LT] at her home and that they were each to bring another person. 15An informer separately reported that the applicant and H were desperate for money in late September 2004 and had discussed possible sources of money. On 27 September 2004 the applicant telephoned B and arranged a meeting, at which they decided to approach Ms LT at her home the following day. 16The applicant had already arranged to meet B at 5 pm the following day, but he did not attend since he had been served with a summons to give evidence at the Police Integrity Commission on 8 October 2004.

Count 4: corruptly receive a benefit as an agent of the Crown 17While the applicant was engaged in the conduct the subject of the third count, he was also engaged with H in extorting money from another victim (the Suspect). In mid-September 2004, the applicant was made responsible for co-ordinating the execution of search warrants in Burwood Local Area Command against persons suspected of possessing child pornography. By reason of his position, the applicant had information to suggest that the Suspect was in possession of child pornography. 18On 24 September 2004 the applicant went with H to the Suspect's home. H went to the Suspect's front door, pretending to be a police officer. H persuaded the Suspect to come to a laneway where they met the applicant who identified himself as a police officer. They discussed the investigation into the Suspect and showed him some documents. The applicant and H then solicited money from the Suspect, who offered them $4,000. They arranged to collect the cash from the Suspect outside some flats at Concord. 19At the planned meeting, H searched the Suspect for listening devices. The Suspect handed over $3,900 and in return was advised how to get rid of the evidence on his computer and how to deal with any questioning. 20Conversations with another person, A, both before and after 24 September 2004, confirmed a plan to extort money from persons suspected of possessing child pornography. The conversations also recorded confirmation that the applicant and H had been paid by the Suspect. The Suspect got rid of all incriminating evidence on 25-26 September 2004. When a search warrant was executed by police on 27 September 2004, the Suspect was calm and appeared to be unsurprised by the visit. Nothing was found. The Suspect subsequently gave an induced statement to the Police Integrity Commission. The Suspect was not charged with possession of any child pornography.

Count 5: false evidence to the Police Integrity Commission (total of 3 charges, including 2 on the Form 1) 21On 8 October 2004, when giving evidence before the Police Integrity Commission, the applicant falsely denied dividing up the money with Mr Walker, dividing up the money with the second co-offender in Count 1 and having a corrupt relationship with H. 22Later that day, after speaking with his legal advisers, the applicant recanted and admitted his criminal involvement with those persons.

The sentence hearing 23The Crown tendered a statement of facts which it described as having been agreed in relation to all offences. Mr Greg James QC, who appeared for the applicant at the sentence hearing, consented to the tender on that basis. The statement of facts was marked Exhibit 1 (the Agreed Facts). Mr James then tendered a defence bundle, which included, among other documents, a statement of facts, which was obviously incomplete and which had formatting errors. It bore some relationship to the Agreed Facts but there were differences. The bundle was marked exhibit 2. Mr James did not indicate the basis on which his statement of facts was tendered. Nor did he explain, or even advert to, the discrepancies between the Agreed Facts and the statement contained in the defence bundle. The inference is available that the applicant's version formed part of the negotiation that culminated in the Agreed Facts. 24The Crown also handed up written submissions on sentence. The applicant handed up written submissions and tendered the following: (1)The Indictment and Form 1; (2)A version of the facts (which differed in part from the Agreed Facts); (3)A report of Dr Roberts, psychiatrist, dated 23 October 2011; (4)A report of Dion Bisa, psychologist, dated 20 August 2003 (obtained in connection with the applicant's workers compensation claim); (5)Material germane to the applicant's good character, including certificates of recognition and appreciation; (6)The Corrective Services Manual relating to Segregated and Protective Custody; (7)An analysis by the Judicial Commission on Protective Custody and Hardship in Prison; and (8)The remarks on sentence of Finnane DCJ in respect of Mr Walker. 25The applicant did not give evidence at the sentencing hearing. 26The applicant's counsel conceded that the assistance the applicant was willing to offer to authorities was of no utilitarian value. He also accepted that there was no "true, precise parity equation" between the applicant and his co-offenders.

Objective seriousness and aggravating factors 27After reciting the facts set out above, the sentencing judge said that the offences would be regarded as significant and serious even had the applicant not been a police officer. His Honour found that the applicant used his position of power and trust with the Police Force to commit serious offences. Most of his targets were suspected criminals who would be unlikely to complain. His actions frustrated the police investigation into the Suspect. The sentencing judge said: "The community rightly looks to the integrity of the Police Force to uphold and protect the law, not to break it." 28His Honour said that the applicant's use of his position was a substantial aggravating factor. His Honour considered that there was significant planning in the commission of counts 1-4 and that the applicant's behaviour could not be described as "impulsive". The sentencing judge regarded the offending conduct as constituting part of a planned and organised criminal undertaking.

Subjective circumstances 29The sentencing judge made the following findings. The applicant was 42 at the time of sentence. He was of good character and had no criminal record. He had joined the Police Force in 1989 and, by December 2000, he was a Detective Sergeant at Burwood Local Area Command. He was married with children and had an unremarkable childhood. His father, who had also been a police officer, had risen to the rank of Assistant Commissioner. The sentencing judge referred to the applicant's assertion that he offended because of extreme financial difficulties which disqualified him from active duty, but did not accept this as an explanation, much less an excuse. His Honour referred to the lengths the applicant was prepared to go for financial reward.

Delay 30His Honour took into account delay and referred to R v Todd [1982] 2 NSWLR 517 at 519 per Street CJ (to which he had been referred by Mr James). His Honour found that although the applicant would be precluded from certain employment after his release, there was no reason why he could not be a law-abiding citizen.

Other matters taken into account, including extra-curial punishment 31His Honour took into account the likelihood of onerous custodial conditions, the applicant's family situation, his lack of convictions and previous good character, his previous good service as a police officer, the extra-curial punishment involved in his loss of career and the public disgrace and humiliation he and his family faced as a result of his offending.

Assistance to authorities 32His Honour noted the Crown's submission that any assistance was negligible and Mr James' submission that it was at least indicative of a "willingness to assist". His Honour did not specifically adjudicate on these submissions and ought accordingly, in my view, to be taken to have accepted them both on the basis that the willingness to assist was a factor in the applicant's favour but that the lack of utility of such assistance was also relevant.

Special circumstances 33His Honour found special circumstances and adjusted the statutory ratio provided for in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 between the non-parole period and the total term from 75% to 60%.

Sentences imposed on co-offenders 34His Honour noted that Mr Walker and another co-offender pleaded guilty to substantially different offences in that: (1)Mr Walker pleaded guilty to aiding and abetting the receipt of a corrupt benefit contrary to s 299F of the Crimes Act 1900 and obtaining a benefit by deception contrary to s 178BA. He was sentenced by Finnane DCJ to 18 months home detention. (2)The co-offender pleaded guilty to conspiracy to obtaining money with menaces with intent to steal in company contrary to s 99 of the Crimes Act 1900 and aid and abet an agent corruptly giving a benefit contrary to s 249F of the Crimes Act 1900 and was sentenced by Finnane DCJ to two years' imprisonment after a combined discount for a plea of guilty and past and future assistance. The sentence was suspended. 35The sentencing judge observed that the offences to which Mr Walker and the co-offender pleaded guilty were "substantially different" to those to which the applicant pleaded. His Honour also said: "There does not appear to be a meaningful degree of parity between the totality of their offending and the totality of [the applicant's] offending." 36After referring to Green v The Queen [2011] HCA 49, his Honour said: "objectively it is difficult to see that a realistic comparison can be made between [the applicant's] offending and the offending of Walker and [the co-offender]."

Grounds of appeal 37The applicant, who appeared on his own behalf in this Court, relied on the following grounds of appeal: (1)His Honour erred in not properly taking into account the extra-curial punishment suffered by applicant; (2)His Honour erred in not properly taking into account the extent of the delay; (3)His Honour erred in his consideration of matters irrelevant to sentencing by having regard to factual errors and failing to have regard to omitted facts; (4)His Honour erred in not properly taking into account the extent of assistance given by the applicant to authorities and applying an overall reflective discount; (5)His Honour erred in failing to apply proper and correct principles of parity in respect of co-offenders; and (6)The sentence is manifestly excessive.

Grounds 1: alleged failure to take into account extra-curial punishment 38The first ground can be dealt with shortly. The sentencing judge specifically adverted to this factor in his Honour's remarks on sentence. Accordingly, his Honour took it into account. What weight was to be accorded to this factor was a matter for the sentencing judge and forms part of the process of instinctive synthesis involved in the sentencing process: see, for example, Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75] per Gaudron, Gummow and Hayne JJ and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37]-[39] per Gleeson CJ, Gummow, Hayne and Callinan JJ. If the resultant sentence is manifestly excessive, that is properly the subject of review and will be considered with respect to the sixth ground. 39In addition, the applicant submitted that insufficient weight was given to the loss of his superannuation. The applicant's superannuation was the subject of confiscation or forfeiture proceedings. Accordingly the sentencing judge was precluded by s 24B of the Crimes (Sentencing Procedure) Act 1999 from taking it into account. It was a relevant consideration at common law: Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [54] per McHugh J, prior to the enactment of s 24B.

Ground 2: alleged failure to take into account delay 40The principles referred to in respect of the first ground also apply to the second ground. The sentencing judge expressly referred to delay in the following passage: "On the question of delay the Police Integrity Commission referred these matters to the DPP in October 2005. Charges were laid in early 2007 and then became the subject of a contested committal hearing in October and November 2008 and April 2009. He was committed for trial on 28 April 2009 but an indictment was not filed until 17 December 2010. The matter was listed for trial on 2 May 2011, 30 May and 4 July, but those dates were vacated. A further hearing of 11 July was adjourned and a plea of guilty was entered on 20 July 2011 following lengthy negotiations." 41The applicant contended that there were errors in the findings relating to delay in that the offences came to light in proceedings in the Police Integrity Commission in 2004, rather than October 2005 and that charges were laid in December 2006 rather than early 2007. The first alleged error has not been made out: the applicant gave false evidence in October 2004; its falsehood came to light in those hearings. However, it was not until October 2005 that the Police Integrity Commission referred the papers to the DPP. The Crown submitted to the sentencing judge that the charges were laid in early 2007. The applicant's submissions did not provide any further detail as to their timing. In these circumstances the sentencing judge was entitled to rely on the Crown's submissions. The difference between December 2006 and early 2007 is, in any event, immaterial. 42His Honour took delay into account. The weight accorded to it was a matter for his Honour. This ground has not been made out.

Ground 3: alleged errors in fact-finding 43The facts by reference to which an offender is sentenced must generally be either proved to the requisite standard, admitted or agreed: R v Olbrich [1999] HCA 54; 199 CLR 270; Weininger v The Queen [2003] HCA 14; 212 CLR 629; Gas v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198 at [30]. The Agreed Facts were tendered by consent on the basis that they were agreed. As such they constituted the basis on which the applicant was to be sentenced. The sentencing judge was both entitled, and obliged, to sentence on the basis of the Agreed Facts. 44The applicant was bound by the conduct of his counsel at the sentence hearing. Mr James indicated that the applicant consented to the tender of the Agreed Facts. An agreement as to the facts is part of the acceptance of a plea of guilty. There is no discernible basis on which the Agreed Facts ought not to have been accepted by the sentencing judge, or on which their correctness ought to be revisited on this application. 45The statement of facts tendered by the applicant at the sentence hearing did not have any such standing. Without agreement, the statement of facts contained within the applicant's tender bundle at the sentence hearing, had no probative value, except in so far as it happened to correspond with the Agreed Facts. 46Although there are occasions where matters not raised or conceded on behalf of an applicant at the sentence hearing will nonetheless give rise to errors which can be corrected by this Court, it is generally undesirable for leave to appeal to be sought on grounds which are contrary to concessions made before the primary judge, unless there are exceptional circumstances: Zreika v R [2012] NSWCCA 44, at [81] per Johnson J (McClellan CJ at CL agreeing). No exceptional circumstances have been identified in the present case.

Ground 4: alleged error regarding assistance to authorities 47The sentencing judge referred to the fact that the applicant was willing to assist and noted Mr James's concession made on behalf of the applicant that the applicant's willingness to assist was of no utility. No error has been shown. 48In so far as the applicant relied on future assistance (since the time of sentencing), this is not a basis for this Court to revisit the sentence imposed. Although the sentencing judge was obliged to take into account assistance to authorities (whether past or to be given in the future), his Honour did so and no error has been shown in that respect. Any further assistance which has in fact been given by the applicant to authorities since his incarceration is appropriately a matter for the executive, rather than this Court: R v Perez-Vargas (1987) 8 NSWLR 559 at 563-565 per Street CJ, Hunt and Allen JJ agreeing. 49The applicant conceded in his written submissions that the further material he relied upon as to his assistance to authorities in the period since his sentence was imposed would only be relevant if this Court proposed to re-sentence. The Crown objected to this material on the basis that future assistance provided neither a reason nor an occasion to revisit the sentence, although its value might cause the executive to act to ameliorate the sentence or conditions of custody of the person who had provided it. As this Court does not propose to re-sentence, it is not necessary to rule on the admissibility of that part of the affidavit, to which objection was taken. 50The Court also received confidential material from the Crown, which arises for consideration only in the event that this Court proposed to re-sentence. As this Court does not propose to re-sentence it is not necessary for this additional material to be addressed.

Ground 5: alleged disparity between co-offenders 51The applicant's counsel accepted, correctly in my view, that there was no parity between the applicant on the one hand and Mr Walker and the other co-offender on the other because of the substantial difference between the offences with which they were charged. The practical effect of the principles of parity is diminished where different charges are laid (since this is a matter of prosecutorial discretion) or offenders are sentenced on the basis of a different factual substratum (whether agreed or otherwise): Green v The Queen [2011] HCA 49; 244 CLR 462 at [30] which approved Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 at [203] per Campbell JA; see also Yousif v R [2014] NSWCCA 180 at [26]-[27] per Hoeben CJ at CL, Adamson and Bellew JJ agreeing. 52The sentencing judge did, however, take into account both the sentences imposed on Mr Walker and also on the co-accused, although only the remarks on sentence in respect of the former were available at the applicant's sentence hearing. The fifth ground has not been made out.

Ground 6: alleged manifest excess 53The applicant sought to challenge the indicative sentences for counts 1, 3 and 5. Only a sentence that has actually been passed can be the subject of an application for leave to appeal: s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). An indicative sentence has not been "passed" since it is an indication of the sentence that would have been imposed if sentences for individual offences, rather than an aggregate sentence, had been imposed: s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999. 54A claim of manifest excess requires the applicant to establish that the sentences imposed were unreasonable or plainly unjust, having regard to the principles that there is no single "correct" sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v R [2000] HCA 54; 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58]-[59]. Whether a sentence is manifestly excessive is a conclusion. It is not necessary to identify any particular error in the process; it is the examination of the result that leads to the conclusion. 55Nonetheless it can be helpful to ascertain why and how the sentence was arrived at since this inquiry may explain the conclusion and expose the reason for any manifest excess. It is on this latter basis that regard may be had to indicative sentences since if one or more is excessive, it may explain why (if it be the case) an aggregate sentence is excessive. 56I do not discern any error in the indicative sentence for the first count. The applicant was, at the time of the offending, a serving police officer. He was the architect of the offence. He misused his position by acting on information that was available only to serving police officers and made an entry on COPS to reduce the chance of the money being lawfully seized by other officers before he and his co-offenders could obtain access to it. 57The applicant called in aid statistics in respect of the third count. Statistics, which are of limited value generally in sentencing (Hili v The Queen [2010] HCA 45; 242 CLR 520 at [55]), are particularly inapposite in the present case where the moral culpability of the applicant depended on his position and the surrounding facts. The many and varied ways in which the system can be undermined by police officers abusing their positions makes the examination of statistics a largely futile task. 58The applicant relied on the fact that, because his conduct was being monitored, the offending conduct was intercepted before it could run its intended course. It is difficult to see why conscientious policing ought to ameliorate the criminality of underlying conduct. The applicant's moral culpability derived from what he did, what he planned to do and what he intended to do. He misused the COPS system with intent to commit larceny. That he was thwarted by diligent policing does not operate in his favour on sentencing. 59The Agreed Facts indicated the extent to which the applicant was the mastermind of the criminal conduct as well as the extent to which he used the knowledge of the system he had gained in the course of his duties as a police officer. For example, the Agreed Facts pertaining to the first count record that as they were fleeing from the scene at speed in a van, the applicant told one of his co-offenders to destroy the registration plates of the van. The Agreed Facts relating to the second count recorded that one of the co-offenders used a scanner to monitor live police frequency and was keeping in contact with the applicant (who was approaching AH's home to seize cash) by two-way radio. When the applicant was inside AH's premises he used plastic disposable gloves, presumably to avoid leaving fingerprints by which he could be identified. 60The Agreed Facts relating to Count 4, including the following example, demonstrated the extent to which the applicant abused his position as a police officer and the access it gave him to sensitive information. "4. Briefings were held with representatives of each Local Area Command (LACC) that were to take responsibility for the execution of these warrants within their LAC. Each LAC was also supplied with a CD package that outlined the allegation and evidence against each individual. In mid to late September 2004 [the applicant] was given responsibility for the coordination of the Burwood LAC search warrants by his then Commander, Superintendent Stuart Smith. He commenced his duties in relation to Auxin [the code name of the investigation into the downloading and possession of child pornographic images] on 20 September 2004." 61The applicant's offending conduct, as a whole, involved an abuse of his position as a police officer. It tended to corrupt the system. It was designed to avoid his detection and thwart investigation of his crimes and those committed by others from whom he had extorted money. Such crimes are serious because they strike at the core of our system of justice which is dependent in large measure on honest and honourable policing. 62The authorities are redolent with reference to the importance of custodial sentences of sufficient length being imposed for such offences, not merely to punish the offender but also to restore and maintain the morale of honest police officers and the community at large. The following passages from previous decisions of this Court are apposite to the present case. 63In R v Hilder (Court of Criminal Appeal (NSW), 13 May 1993, unrep), Wood J said (Handley JA and Sully J agreeing): "Shortly stated, this is a case involving seriously corrupt conduct by a police officer in the performance of his duties. That kind of conduct must attract a significant custodial sentence, because it amounts to a breach of trust and authority and is such as to harm the reputation and morale of honest police officers." 64In R v Irwin [1999] NSWCCA 361 (a Crown appeal against sentence), Newman J said of such offences, including giving false evidence to the relevant commission: "In the instant case, while there were matters raised in mitigation, the objective circumstances of the crime in the first count were such that, in my view, it places this matter squarely in the category of the worst type of case, see Ibbs v The Queen (1991) 163 CLR 47. Not only was the intention of the respondent to obviate the risk of a drug dealer being brought to justice, but also his conduct involved the corruption of one other senior policeman and the attempted corruption of another. Furthermore it was a crime committed by a person holding high rank within the police force, that of detective sergeant. ...In my view, these factors combine to put it within that category" 65His Honour continued at [50]: "As far as the crime of giving false evidence before the Royal Commission is concerned, again it is a matter which strikes squarely at the heart of our system of justice. In my view his Honour should have, even having regard to principles of totality, imposed a cumulative sentence in respect of that other charge. If in sentencing a serious crime, such as giving false evidence in such a situation, is to be treated in the normal course of events as being one which should be dealt with by concurrent sentencing, the effect is that the person is not punished at all for such an offence. There must be a sanction, in my view, to bring home to people that when they are giving evidence, either before courts or before Royal Commissions, or before any other form of formal enquiry of this type, the truth must be paramount. 66I do not consider the sentence imposed on the applicant to be excessive. In my view it appropriately reflects the criminality of the offending conduct. Although there was some accumulation, there was also a substantial degree of implicit concurrence, having regard to the length of the indicative sentences compared with the aggregate sentence. The objective seriousness of the offences was, as referred to above, high. The discount for the plea was taken into account. The finding of special circumstances was favourable to the applicant. In these circumstances there is, in my view, no basis on which to interfere with the sentence imposed. 67The sixth ground has not been made out. 68I propose the following orders: (1)Leave to appeal granted. (2)Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2014