Director of Public Prosecutions v Matthew Alan REYNOLDS

Criminal History 7As indicated in relation to the facts, the offender was at the time of these offences awaiting determination of charges brought in relation to the accessing of the police computer and dissemination of information gained through that process. Those charges were dealt with shortly after his arrest for these offences. The defendant was dealt with pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990. Section 32 allows a Magistrate to dismiss a charge(s) subject to the powers contained within the section. Such an outcome does not involve judicial consideration of the question of guilt of the offender to a standard of beyond reasonable doubt. 8As a consequence and for the purpose of section 21A(3)(f) he appears before this Court on sentence as a person with no prior criminal convictions. I have also taken into account the other relevant provisions of section 21A(3) so far as they mitigate the penalty. I qualify the observation that the offender comes before the court as a person of otherwise good character by noting that the principles set out in R v Kennedy [2000] NSWCCA 527 at [21]-[22] are relevant on the lesser weight to be given to character in a matter where general deterrence is paramount. 9Nonetheless it is disappointing to note that he was, at the time of committing these offences, subject to two charges pending resolution before the Court.

Subjective Features 10Much was made in submissions to the Court of the offender's mental condition. The Court has been provided with a report from Doctor Saunders, Consultant Physician, Doctor Kearney, Clinical Psychologist and Doctor Davies, Consultant Psychiatrist. Each report is dated in May 2011. Of the three practitioners, Doctor Davies has had the longest association with the offender. 11Doctor Davies' professional involvement with the offender notes the offender first consulted him in February 2010. The importance of this stated fact is that it pre-dates the involvement of the offender in the criminal justice process, including his being charged with the offences dealt with under section 32 of the Act referred to earlier, and includes a recounting of his history with his general practitioner dating back to 2007. That history includes a narrative of depression and suicidal ideation on the part of the offender arising out of two contrasting incidents occurring in the course of his employment as a police officer. The depression is considered by his general practitioner to be sufficiently serious as to warrant the prescription of anti depressant medication. I accept that at the time of the criminal conduct it is more likely than not the offender suffered from the diagnosed conditions. This does not excuse his conduct. I remind the offender that his plea of guilty to each charge is an acknowledgment of the intrinsic elements of each offence. There is no such concept known to law as a qualified plea of guilty. 12Nonetheless the law has always recognised that underlying medical or mental conditions are relevant on the question of sentence. As Gleeson CJ said in R v Engert (1995) 84 A Crim R 67 at 68: "Persons suffering from mental disorders frequently come into collision with the criminal justice system.... [however] it is therefore erroneous to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case what is called for is the making of a discretionary decision in the light of the circumstances of the individual case and in the light of the purposes to be served in the sentencing exercise." 13The principles relating to mental health issues are set out thoroughly in R v Hamid [2006] NSWCCA 302 at [94]-[95] : "The existence of a mental illness or other psychiatric condition, where causally related to the offence committed can be relevant to the assessment of an offender's moral culpability. Where mental illness contributes to the commission of an offence in a material way the offender's moral culpability may be reduced and there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced. With respect to this issue it is necessary to determine whether the relevant mental illness contributed to the commission of the offences in a material way." 14At the time of committing these three offences the offender was a member of the New South Wales Police Force. As such he was in a position of trust reposed in him by the people he had sworn an oath to protect. His abuse of that trust is manifest. A member of the police force of his experience would know not only the fact of his conduct being unlawful, but of the potentially tragic consequences that can flow from the supply of a prohibited drug within the community. I reject the opinion expressed in the report of Doctor Matthews that the offender's emotional immaturity in relation to women made him vulnerable and led him to agree to supply the drugs without thinking of the potential consequences. The agreed statement of facts (which seem not to have been supplied to any medical practitioner or psychologist as no mention is made of them in any of the reports tendered) militates against such a benevolent acceptance. I also treat with significant circumspection the suggestion that because of his addictions at the time he was likely to be more vulnerable and impulsive. I do so for the following reasons. 15Courts do not deal with offenders from the inside of a bubble. Although the offender is not charged with other offending behaviour the Court does not lose sight of the fact that putting undercover police into the presence of the offender was not an unplanned coincidence. So much is made clear from the first paragraph of the "Full Facts" tendered to the court and annexed to these remarks. The offender was under suspicion for a lengthy period before the controlled operations took place. 16Contrary to the benevolent perspective taken of the offender's conduct by his medical practitioners the context in which the offender's behaviour occurred, the level of planning and organisation involved together with the assistance of an associate promotes the conclusion that the offender was anything but vulnerable and impulsive when these offences were committed. It may be the case his downward spiral into illicit drug taking and alcohol abuse can be seen as a consequence of his depression and state of anxiety. So much seems likely from the contents of the heartfelt letter from his mother produced to the court. However his conduct as disclosed in the facts does not speak of spontaneous criminality. Rather it identifies an ongoing willing association with others involved in breaches of the criminal law and as manifesting itself in the commission of three serious criminal offences. 17Each act involved calculated deliberation. Each involved a measure of organisation to secure the drugs for on sale to the undercover police operatives. Each involved conduct by a person who by reason of their chosen profession would know his conduct was beyond the pale but proceeded nonetheless. To assert that these considerations were divorced from the offender's mental processes at the time or so repressed by his supposedly vulnerable and impulsive nature such that he was rendered less capable of applying his decision making processes is an assertion that requires this Court to suspend reality. I am not persuaded that the Court ought go down such a blinkered one-dimensional path. 18In R v Chapman (unreported, NSWCCA, 21 May 1998) the Court said, albeit in relation to a different form of offending: "The Respondent did not cease being a police officer or carrying out the duties and responsibilities and having the privileges of that office because these events arose out of recreational and not professional activities. He must be taken to have known, better than most, how important the curial procedure is and with what respect it must be treated." 19Quite so. The community is entitled to no lesser standard of consideration. The offender was false to his oath to protect the community, abandoned his ethical responsibility to assist his colleagues in pursuit of their legitimate function of office and by so doing brought a well-respected institution within society into disrepute. The consequences of his behaviour reach far beyond the impact on his personal life. 20Having declined to minimise the offender's moral culpability by reason of his coexisting mental condition I am nonetheless required to consider whether it operates to mitigate the penalty as opposed to the moral culpability of the offender's conduct. 21As was said in R v Wright (1997) 93 A Crim R 48 at [50]-[51] in relation to the weight to be given to the existence of a mental illness: "Considerations of general (or even personal) deterrence are not rendered entirely irrelevant and the significance of the offender's mental incapacity is to be weighed and evaluated in light of the particular facts and circumstances of the individual case" and at [51]: "But if the offender acts with the knowledge of what he is doing and of the gravity of his actions the moderation need not be great." 22Some weight will be given to the existence of the offender's mental condition but in the context that general deterrence being paramount and the offender's informed knowledge that his conduct was manifestly unlawful will operate to reduce the degree of mitigation. 23Additional to the principles applying in respect of mental illness are the guiding principles established in relation to the supply of prohibited drugs. As I have observed earlier such conduct has the potential for tragedy. Certain classes of drugs are prohibited for good reason. Many have the capacity to indiscriminately kill, or commence the path to addiction with all its attendant medical/psychiatric and potential criminogenic consequences. 24Qualified by the reality that decided cases from the Court of Criminal Appeal warrant abundant caution because they are related to more serious matters prosecuted before the District Court, there is a line of authority establishing a general principle that where an offender is "substantially involved" in drug trafficking a sentence of full time custody is appropriate save in the existence of truly exceptional circumstances. The observations of Rothman J in R v Gip (2006) 161 A Crim R 173 on this point are pertinent. "The ultimate question is whether the accused is involved, in the ordinary sense, in trafficking. The mere fact that a person has been caught on only one occasion does not mean the person is not involved in trafficking. The question for the sentencing judge is whether there are facts, proven beyond a reasonable doubt, which give rise to an exercise of discretion consistent with the approach in Clark. Those facts may be an agreement to supply on another occasion, and attempt to supply on another occasion, participation is a process that envisages supply on more than one occasion, participation in a syndicate, or a number of other circumstances. The ultimate question must be whether, on the application of ordinary principles of sentencing, full-time custody is warranted. In any situation where the person has been shown to have been involved (directly or indirectly) in an ongoing arrangement, or intended ongoing arrangement, for the supply of drugs, that person, for the purpose of the sentencing principle, should be taken to have been involved in trafficking. The isolated, one off incident of supply does not include persons who, although charged with one offence, are otherwise shown to have an involvement in a process that contemplates supply on more than one occasion. That could be shown, as already stated, by proving any one of a range of activities which give rise to the inference of past, present or future involvement in trafficking." And as McClellan CJ at [13] said: - "My understanding of these various statements is that where a finding can be made that an offender has engaged in repeated offences so that his or her activities can be described as trafficking, a full time custodial sentence should, unless there are exceptional circumstances, be imposed. However, if only one offence can be proved, but the circumstances surrounding that offence indicate that it was the result of a sophisticated commercial arrangement, the objective criminality involved may also require a custodial sentence, unless exceptional circumstances can otherwise be shown." 25The mere quantity of the drugs involved is not the sole or even principal determinant of the sentence in relation to drug offences and the role of the offender is more important as is the level of his or her participation in the offence. In these matters the offender agreed to search out a quantity of drugs, succeeded in his commercial arrangement and, for financial reward, delivered the drugs to their intended recipient. His involvement can hardly be said to be minor or transient in nature. 26When the Court turns its mind to the provisions of section 3A of the Act it is abundantly clear that general deterrence remains the dominant purpose, even if mitigated to a limited extent by the offender's underlying mental condition, in sentencing for this conduct. Prevalence of the supply of illicit drugs within the community is such a widespread problem that Courts are expected to re-emphasise through the sentences imposed that such predatory behaviour will not be tolerated. Even allowing for the statutory discount and the further discount for assistance to authorities the ultimate penalty must at the end, reflect the purposes of sentencing and the objective seriousness of the offending. 27In an endeavour to assist the court in its deliberations counsel for the offender produced a synopsis of "reasonably comparable" sentencing outcomes in the District Court and from sentence appeals to the Court of Criminal Appeal. Such assistance is welcome but is not, of itself, determinative. The court was also provided with statistics from the Judicial Commission's JIRS database. The statistics tendered establish that in 71% of cases the offender received a sentence of imprisonment ranging from a suspended sentence to full time incarceration. The statistics are useful given the significant sample but they are figures from higher courts so need to be assessed with caution and in line with the statements in Hili v R; Jones v R [2010] HCA 45 and Han v R [2009] NSWCCA 300 at [2]-[3]. 28Against these statements of principle, even allowing for the less serious nature of the offender's conduct in terms of the quantity of drugs involved can it be said that the offences warrant imprisonment nonetheless? Before turning to the answer to this question I remind myself that imprisonment is the option of last resort. Section 5 of the Crimes (Sentencing Procedure) Act 1999 makes this abundantly clear. It is a trite observation of course to note that there are always alternatives to a sentence of imprisonment. The focus of section 5 however is not on availability but appropriateness . 29Having turned my mind to the process of reasoning explained with great clarity in R v Zamagias [2002] NSWCCA 17 and after weighing the objective seriousness of the offence with the subjective factors personal to the offender against established guiding principle I come to the view there is no other appropriate sentence than one of imprisonment for each of the offences. 30The facts establish that sentencing ought proceed on the basis that the contemporaneous nature of their commission warrants their being dealt with on a concurrent basis. Having come to this conclusion it is necessary for the court to determine the manner in which such sentences are to be served. As a consequence I return to the need to consider and identify the issues relevant to the application of section 23 of the Act, and to the necessity to assist in the facilitation of rehabilitation based on the combined effect of the insightful letter from the offender's mother, the three reports speaking to his co-existing conditions and their management, and the Pre Sentence Report. 31There is little doubt that putting these offences to one side, the offender is a troubled individual. His history suggests that an underlying predisposition within his personality may have been exacerbated by his experience as a serving police officer. It is not for this court to be declaratory in that regard. This may be an issue to be determined by another jurisdiction at some other time hence the need for caution lest prejudice flow. Whatever the circumstances the Court is satisfied there is a need to address a propensity on the part of the offender to abuse drugs and alcohol. The offender has already identified a need to embrace medical treatment in relation to other areas affecting his capacity to function at his best within society. It is to be hoped that with a strong family commitment and level of support both from that sphere and from his treating practitioners that he can achieve a balance within his self. 32In addition to addressing aspects of causation for the purpose of rehabilitation the balancing exercise required by the Court must take into account the assistance given by the offender to authorities. 33Exercising discretion to reduce a sentence by reason of assistance to authorities is well established. In R v Cartwright (1989) 17 NSWLR 243 at 252 the Court observed: "It is clearly in the public interest that offenders should be encouraged to supply information to authorities which will assist them in bringing other offenders to justice and to give evidence against those other offenders in relation to whom they have given such information. In order that such encouragement is given the appropriate reward for providing assistance should be granted whatever an offender's motive may have been, be it genuine remorse or contrition or simply self interest...The information which he gives must be such as could significantly assist authorities. The information must of course be true...." 34It is often difficult to effectively evaluate the likely benefit to the interests of law enforcement such assistance might bring. The Affidavit of Assistance is silent on this issue but reasonably clear that an undefined benefit to law enforcement has been forthcoming. 35A decision to apply an additional discount does not mean that the offender is entitled to have any subsequent sentence reduced so that it becomes unreasonably disproportionate to the nature and circumstances of his offending. So much is clear from section 23(3) of the Act and from the observations made in R v Gallagher (1991) 23 NSWLR 220 at 232: "Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for lenience. Care must be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that even understood in the light of the considerations of policy which supports the discounts given it constitutes an affront to community standards." 36In determining the level of discount for assistance I am mindful of the observations of the Court in R v M [2005] NSWCCA 224 at [21]-[22]. In my view an additional discount of 12.5% is appropriate given the assistance is at this point in time is merely prospective and not demonstrated by the achievement of successful prosecutions. Accordingly the discount to be applied to the appropriate sentences will be 37.5%. 37In ordinary circumstances a sentence of imprisonment for these offences warrants full time custody within the mainstream prison system. The appropriate sentence given the level of criminality is 8 months imprisonment for the first offence and 10 months for the remaining matters. It is not the case that a discount to be applied is to be reflected solely as some sort of mathematical outcome. Application of a discount will unquestionably affect the length of a term of imprisonment. It can also affect the manner in which such sentence should be served, particularly where an offender provides assistance to authorities and will otherwise enter full time custody as a former police officer. As Gleeson CJ said in Gallagher at 230: "...it is essential to bear in mind that what is involved is not a rigid or mathematical exercise to be governed by 'tariffs' derived from other or different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice." 38Mindful of the observations of the Court in SZ v R [2007] NSWCCA 19 I come to the view that the combined effect of both discounts together with the subjective considerations referred to earlier in these remarks should operate to reduce the period of imprisonment for each offence and affect the manner in which it is to be served to the extent that subject to positive assessment of suitability by the relevant authority serving the sentences by way of home detention will be appropriate. As well as serving the principles of general deterrence and denunciation such an approach more readily lends itself to the ongoing need for the offender to continue with treatment within the psychiatric and medical environments. 39The offender is convicted on each of the three charges. On count 3 (the offence of 4/11/10) he is sentenced to imprisonment for 6 months. On counts 1 and 2 (the offences of 5/11/10) he is sentenced to imprisonment for 7 months and 15 days. Each of the three sentences is to be served concurrently. In the exercise of the Court's discretion pursuant to section 45(1) of the Act I decline to set a non-parole period. The proceedings are adjourned until 22 September 2011. 40During the period of adjournment the offender is to be assessed as to his suitability to serve each sentence by way of home detention. Judge Graeme Henson Chief Magistrate 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: 24 August 2011