The defendant has pleaded guilty to one count of dishonestly obtaining a financial advantage for another by deception, contrary to s 192E(1)(b) of the Crimes Act 1900. The matter came before me in the DPP list at the Downing Centre on 21 January 2016 at which time Mr Charleston appeared for the Director and Mr Madden for the defendant. I heard submissions from both parties on that day and then adjourned the matter until today for decision.
The facts of the offending in this case required me to give some thought to a number of issues that were raised and it was for this reason that the matter was adjourned last week.
The facts are that the defendant is a police officer. He holds the rank of Constable. He is aged 36 years and was 34 at the time of the offence which took place on 6 August 2014. He joined the Police Force in 2011 and had been a sworn officer for just under 3 years when he offended in the way that he did. For many years prior to his actually doing so, he had wished to join the New South Wales Police Force. It seems that he had held this ambition since he was a young person.
The Agreed Facts tendered note that at August 2014 the defendant was attached to the Miranda Local Area Command. Relevantly, prior to joining the police he had held a number of different jobs, including as a qualified motor mechanic. The co-offender Jason Clarke was his superior and a Sergeant at the Miranda Police Station. Sergeant Clarke's son Lachlan had at some time prior to 6 August 2014 been involved in a motor vehicle accident. The facts reveal that Sergeant Clarke spoke to the defendant in his office at the Miranda Police Station on or about 5 August 2014. During that meeting Sergeant Clarke told him about his son's motor vehicle accident. He told him that the accident was not his son's fault and that it was as a result of a mechanical defect. He further told him that he had previously had problems with the vehicle and that there was definitely a mechanical fault with it. He indicated that another officer from Miranda was investigating the accident and requested that he (the defendant) as an ex-motor mechanic, prepare a statement to the effect that he had inspected his son's vehicle and that the accident which had occurred was in fact as a result of mechanical fault. The defendant queried Sergeant Clarke as to whether there was a conflict of interest in him preparing such a report and he was assured by Sergeant Clarke that there was not. Both the defendant and Sergeant Clarke plainly would have understood that if the report were accepted, then Sergeant Clarke's son Lachlan would avoid the issue of a Traffic Infringement Notice and no doubt, the accrual of demerit points.
Without inspecting the vehicle but after viewing a photograph of it, which was provided to him by Sergeant Clarke, the defendant then prepared a mechanical report indicating that he had inspected the vehicle and that the subject accident was caused by a mechanical defect in the vehicle's near side CV shaft assembly. The assertion that he inspected the vehicle was false. The statement was prepared while the defendant was at work and shortly thereafter was placed in Sergeant Clarke's pigeon hole at Miranda Police Station. Sergeant Clarke then provided this false report to the investigating police officer and as a consequence no Traffic Infringement Notice was issued to his son.
The benefit obtained by Sergeant Clarke's son as a result of the defendant's deception was in the amount of $425, that being the amount of the Traffic Infringement Notice that would otherwise have been issued.
In considering this matter I have had cause to remind myself of the principle in The Queen v De Simoni (1981) 147 CLR 383. I must deal only with the offence before the Court and I cannot take into account any circumstance of aggravation that would justify the laying of a more serious charge. There would appear to be other more serious offences with which the defendant could have been charged. The DPP has however elected to bring this particular charge before the Court and so it is this charge that I must deal with. With that in mind I note that the financial advantage gained for another is modest ($425) and that no financial advantage of any sort was obtained at all by the defendant. These matters were conceded by Mr Charleston in his submissions to me.
I accept that the defendant, in conducting himself as he did, felt overborne by his superior officer. So much is clear from his record of interview with investigating police from the Professional Standards Command on 22 January 2015. It should also be noted that as soon as he became aware of the investigation the defendant prepared a written confession and presented it to those investigating officers at the time of his interview. I have carefully read both the interview and the defendant's statement and I accept that they demonstrate real remorse, contrition and shame on his part. I also accept that the defendant had nothing to gain from his deception other than for avoiding the risk of getting on the wrong side of his superior officer who, no doubt, had the ability because of his position to make life difficult for the defendant, a relatively junior constable working in the same police station. The police force is like many social institutions, hierarchical and almost military in nature. It relies on junior officers following the directions of those more senior for it to function effectively and in the public interest. Given that rigid command structure, I accept that when a senior officer behaves in the way that the Agreed Facts show Sergeant Clarke behaved, then a junior, relatively inexperienced and somewhat powerless officer such as the defendant would have felt under considerable pressure to comply with the directions he had been given. This is even if he was of the view, as he seemingly was, that what he was engaging in was inappropriate. While the offence occurred during working hours, the defendant did not otherwise abuse his position as a police officer in committing the offence. This offence does not rely on the defendant being a police officer (although this is how he came to be acquainted with Sergeant Clarke), rather it relies on his being a weak willed and overborne former motor mechanic.
An important aspect of this matter concerns the assistance to authorities that has been provided by the defendant. He has already provided assistance regarding the prosecution of Sergeant Clarke and has signed an undertaking to do so in the future. Sergeant Clarke, so far as I can tell, has been charged with misconduct in public office or some like public justice offence. Such a charge is most serious and the defendant's assistance will plainly be crucial to the prosecution of Sergeant Clarke. There is of course a significant public interest in those who abuse public positions of authority being prosecuted to the full extent allowed by the law, and no doubt the defendant will play a significant role in that prosecution.
It has long been the case that a sentencing court is able to extend leniency to an offender who has provided assistance to authorities. Sometimes, that leniency will be substantial, especially if it is motivated by genuine remorse and contrition. I accept that it is in this case. In extending leniency for assistance courts must ensure that the ultimate outcome is not disproportionate to the actual offending. As in any sentencing task, the court must strive to impose a penalty that is, in the final analysis, a fair and just one. The discount for assistance can result in the imposition of a less serious sentencing option and is not limited to the imposition of a numerically lesser penalty.
Section 23 of the Crimes (Sentencing Procedure) Act 1999 indicates how a court is to deal with the issue of assistance to authorities. Subsection (2) sets out the matters a court must consider in determining whether a lesser penalty is to be imposed. Dealing with those considerations in turn, I note:
(b) The significance and usefulness of the defendant's assistance is high.
(c) The truthfulness, completeness and reliability of the information provided by the defendant is apparently regarded by the Director of Public Prosecutions as high (s 23(2)(b)).
(d) The nature and extent of the assistance and promised assistance is high.
(e) The assistance was offered in a timely fashion.
(f) The benefit to be gained by the defendant appears solely to relate to the disposition of this sentence.
(g) Not relevant
(h) The defendant has not suffered so far as I am aware, any danger or risk of injury to date. That is not to say that he may not in the future suffer a risk of injury to his reputation and otherwise from the fact that he has now, to use the vernacular, "ratted" on a fellow officer.
(i) While it is the court's most fervent hope that such retribution would not be exacted, I cannot discount completely the possibility that some misguided police would take a dim view of the brave stand that has now been taken by the defendant, and so cause his ongoing employment (if he is to have it and I note there is no guarantee in that regard) to be less comfortable and productive than it should be.
(j) The assistance provided concerns the offence for which the defendant is being sentenced.
As will be plain, many of the section 23 factors that must be considered operate favourably for the defendant, and in my assessment he must be given very significant leniency in the disposition of this matter. It is necessary for me to indicate the penalty that would have been imposed but for the defendant's assistance and I will shortly return to this.
Mr Madden has submitted that I should deal with the matter pursuant to section 10 of the Crimes (Sentencing Procedure) Act and that no conviction ought be recorded. While not conceding that the matter should be disposed of in this way, the DPP did not seek to be otherwise heard in respect of that submission. In considering this submission I must have regard to the aggravating and mitigating factors set out in section 21A of the Crimes (Sentencing Procedure) Act. I accept that there are no relevant aggravating factors within the meaning of the section. There are, however, a substantial number of mitigating factors to which I must have regard. They are:
1. the injury, emotional harm, loss, or damage caused by the defendant was not substantial,
2. the offence was not part of a planned or organised criminal activity,
3. the offender was acting under duress,
4. the offender does not have any record (or any significant record) of previous convictions,
5. the offender was a person of good character,
6. the offender is unlikely to re-offend,
7. the offender has good prospects of rehabilitation whether by reason of the offenders age or otherwise,
8. the remorse shown by the offender for the offence,
9. a plea of guilty by the offender (as provided by section 22),
10. assistance by the offender to law enforcement authorities (as provided by section 23).
Mr Madden, in his comprehensive and helpful written submissions drew my attention to a number of authorities dealing with section 10, and those have been considered by me. It is contended that one consequence of a conviction upon this defendant would be that his continuing employment with the police force would be less likely than if he were not convicted. Of course that at the end of the day will be a matter for the Commissioner of Police but on balance I am satisfied that a conviction may make the defendant's dismissal more likely. As was made clear in R v Mauger [2012] NSWCCA 51 per Harrison J (with whom Beazley JA, as the President then was, and McCallum J agreed) at [28], the prospect of the conviction having a detrimental consequence upon employment is something that I am entitled to and do take into account. That decision also makes clear that the imposition of a bond, even without conviction can meet the need for denunciation and general deterrence in an appropriate case and that it is wrong "to assume that the decision to not record a conviction is automatically or necessarily co-extensive with the imposition of an inadequate, or even a particularly lenient, sentence" (at [37]).
It is submitted and I accept that in this case a combination of the following features allow me to conclude that it is one which can be disposed of without recording a conviction. These features are:
The defendant's immediate admissions to investigators,
His early plea of guilty,
The significant assistance that he has provided to date and will provide in the future,
His genuine remorse,
The fact that he is a person of otherwise good character,
The fact that he is unlikely to reoffend and has good prospects of rehabilitation,
The fact that the benefit received was modest,
The fact that he received no financial benefit whatsoever,
The fact that not recording a conviction will assist his prospects of retaining his employment,
The extenuating and unusual circumstances of the offence in the context of the hierarchical structure of the police force.
I have concluded that this disposition will not affront community standards or be otherwise inappropriate and the matter can be disposed of in this way notwithstanding that the offence is not itself a trivial one. I propose to order that the dismissal of the charge be conditional upon the defendant entering a bond to be of good behaviour. Such a bond will satisfy the need for denunciation and general deterrence. In my view specific deterrence has no role to play in this case. To comply with the provision of section 23(4)(c) of the Crimes (Sentencing Procedure) Act I state that without the significant assistance that has been and is to be provided by the defendant a more serious penalty would have been imposed, being a conviction and the imposition of a section 9 bond.
[2]
Orders:
I find the offence proved but deem it inexpedient to inflict any punishment. The charge will be dismissed pursuant to the provisions of section 10(1)(b) of the Crimes Sentencing Procedure Act conditional on the defendant entering into a bond to be of good behaviour for a period of 18 months.
Deputy Chief Magistrate C O'Brien
Downing Centre Local Court
29 January 2016
[3]
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Decision last updated: 18 May 2016