DPP v Marks [2005] VSCA 277

1 I will ask Eames, J.A. to deliver the first judgment in this matter.

2 The respondent, who was a senior constable of police stationed at Frankston police station at the time when the offences were committed, pleaded guilty in the County Court to one count of misconduct in public office (count 1); to possession of a drug of dependence, namely, ecstasy (count 3), and, in addition, pleaded guilty to a summary offence brought by information on a count of using a drug of dependence, namely ecstasy. The summary offence was dealt with in the County Court pursuant to s.359AA of the Crimes Act 1958.

3 On 15 September 2005 a judge of the County Court, without imposing a conviction with respect to any of the three offences, fined the respondent $4,000 on count 1, $300 on count 3 and $50 on the summary offence. The Director of Public Prosecutions appeals by notice against the sentences imposed on all three offences. The sole ground of appeal is that the sentence is manifestly inadequate, as to which ground a range of particulars have been given under a broad contention that in failing to record a conviction, and in sentencing the respondent to payment of fines in the amounts specified, the judge failed to give proper weight to relevant sentencing considerations and gave too much weight to factors in mitigation. The terms of the grounds of appeal are important in this case, and I will return to them.

4 The offence of misconduct in public office is an offence at common law carrying a maximum penalty of 10 years' imprisonment. Possession of a drug of dependence contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981 carries a maximum penalty of a fine not exceeding 30 penalty units or one year imprisonment or both. Mrs Quin acknowledged that it was in fact only as to the first count that the appeal was directed. The particulars in the grounds of appeal focussed attention on that ground, identifying the gravity of the offence, the need for general deterrence as to other police officers and public officials, the breach of trust and the damage to public confidence associated with the offence.

5 On 18 November 2002 the Major Drug Investigation Division commenced an operation investigating drug trafficking activities of Shane Carl Waters. In the course of the investigation telephone intercepts were conducted of telephone calls made by Waters. Those investigations disclosed that Waters, who had no prior convictions at this time, was trafficking in large quantities of ecstasy and in lesser quantities of methylamphetamine, ketamine and other drugs. On 22 May 2003 investigators established that one Gavin Robbins had arranged to purchase large amounts of ecstasy from Waters, and Waters was placed under surveillance. In the late afternoon of 22 May 2003 undercover police officers followed Waters' vehicle.

6 Soon after he completed his journey Waters telephoned the respondent, expressing concern that he believed he had been followed from his house. Waters asked Marks, "Can you have a look tonight?", to which Marks replied that he would see what he could find out, adding, "I could have a mate who is going to the druggies soon, anyway." That statement, the Crown accepted, was without substance. This conversation was not the subject of the charge brought on the count but was treated as relevant background information which was not disputed on the plea by defence counsel. By virtue of that telephone interception the surveillance unit ceased following Waters, and instead followed Robbins. That evening Robbins attended the home of Waters and after he left the home he was intercepted and arrested, whereupon he was found to be in possession of 300 ecstasy tablets.

7 On 18 June 2003, at 2.59 p.m., Waters phoned the respondent asking him to do him a favour by looking up information concerning Robbins, whom he said had "apparently got done leaving our house" about a month previously. The respondent said he would have a look and would give Waters a phone call from the office. Waters said "I've asked him for his fucking tapes and that, but he reckons his lawyer's got them - probably reckons he hasn't even been charged yet", to which the respondent replied "No. Really?" Waters then said "He got done with three ... big ones." The respondent did not ask him what he meant by that.

8 At 5.17 p.m. the same day the respondent rang Waters from the Frankston Regional Response Unit office and whilst on the telephone accessed by computer the Victoria Police Law Enforcement Assistance Program (LEAP) and found an entry relating to Robbins from which he read extracts to Waters. It is this phone conversation and the accessing of LEAP which forms the basis of count 1.

9 Waters asked what Robbins was charged with and where he had been arrested and the respondent said that he had been charged with trafficking ecstasy and had been intercepted in Gertrude Street, Frankston at a routine traffic stop. He had been interviewed and released on summons. In the course of this telephone conversation the respondent said to Waters "You'll have to learn to take it a little bit careful".

10 When interviewed by investigators from Ethical Standards Department the respondent said that he had known Waters for ten years, through a football club. He was a friend but not a really good mate. Asked why he gave the information to Waters he said it was "because he was a friend of mine and he was enquiring as to what - what happened to one of his friends".

11 It was accepted by the prosecution that the respondent did not know that Waters was under investigation when he had the telephone conversations with him. The respondent told police that he had known for about twelve months that Waters was trafficking in drugs and he had not reported that information to anyone in the police force. He believed at the time that Waters only trafficked drugs at a very low level, trafficking two or three ecstasy pills to his mates. The largest amount of ecstasy tablets he had seen Waters with was five tablets. He knew three or four people to whom Waters had sold drugs at the football club and he had once himself purchased an ecstasy tablet from Waters and had used that drug. He had also once used ecstasy at a private party when it was given to him by a friend. These last admissions led to the charges for drug possession and use.

12 The Crown accepted that the respondent believed Waters was only a low level drug trafficker. It also accepted that in fact the investigation into Waters' activities was not impeded at all by the respondent's actions.

13 The respondent told the investigators that in saying to Waters that he should learn to "take it a little bit careful", he was saying, as he had on a few prior occasions, that he should "watch your ways". He had said to Waters on a number of occasions that he should stop his drug dealing. He said he had never encouraged or assisted Waters in trafficking drugs.

14 The respondent said that prior to this occasion he had often said to Waters that he would find out what he could for him but then he didn't do so. He merely gave those earlier responses to Waters' requests for information so as to appease him. The respondent said that it came as a big surprise to him to discover that Waters had been trafficking in drugs in a much bigger way than he had known.

15 In the course of the interview the respondent agreed that as a police officer with eight years experience he had been involved in drug operations. He said he had been with the Frankston Regional Response Unit for 12 months, during which time there had been drug operations in the Frankston area. He was asked these questions and gave the following answers:

"Q-248 Okay, was there usage of covert operatives in your time?

A. Yes.

Q-249 And how imperative is it to keep those type of operations and information pertaining to them as close to the officer, as close to the people working on it as possible? How would you think?

A. Well it is imperative. Yeah.

Q-250 For what reasons?

A. So that it doesn't get back obviously to the target.

Q-251 Okay, all right. And would there be any other reasons as to why you would need to keep that information if you've got covert operatives working, as close to the office and as - as tight - ?

A. So the coverts aren't identified, I'd assume.

Q-252 Well, what about for their safety?

A. Yeah."

16 Gary Allen, a Senior Sergeant of police, was called as a character witness on the plea. He gave the following answers to cross-examination:

"Has he dealt with informers and undercover operatives before?---Undercover operatives, yes. Informers, I'm not sure.

It would be fair to say that - I believe he was about an eight year Senior Constable at the time, wasn't he, eight years in the police force?---Yes.

Someone of that experience would have full knowledge of the danger of giving out information off the LEAP system to someone he knows might be dealing in drugs?---That's fair to say, yes.

Consequently he'd know of the danger to undercover operatives and informers if he gave out that sort of information?---Yes, he should.

The potential danger?---Yes."

"My deep suspicion would be that Waters had contacted you in that regard to endeavour to find out whether Robbins had implicated him as a drug trafficker."

18 That does not amount to a finding that the respondent knew, or indeed that he even suspected, that that was the purpose of the approach made to him by Waters. His Honour said that he sentenced the respondent "on the basis that what occurred when you so clearly neglected your sworn duty was an error of judgment rather than a display of moral turpitude". His Honour concluded that the reason the respondent took the action he did arose out of his gregarious nature and the value placed by him on friendship and loyalty and that those characteristics could explain why the respondent might have succumbed to what his Honour said, "might seem to him to have been a relatively innocent transfer of information". His Honour added:

"However, as I have said, you are an intelligent young man and if the reasons underlying Waters' request were not apparent to you, they should have been; and not only should they have been apparent to you, it must be brought home clearly that they should be apparent to any other like-minded police officer".

19 Mrs Quin accepted that on close analysis it was the case that the judge did not make findings that the purpose of Waters' enquiry was to ascertain whether Robbins had implicated him, or that the respondent knew or believed that to be the case. The inference as to Waters' motive for the contact, at least, was conceded to be open by counsel for the respondent during the plea. Given, in addition, the evidence of the lead-up telephone calls and, in particular, Waters' statement that he had asked Robbins to provide to him the taped record of interview and his stated suspicion concerning the fact that, as he believed, Robbins had not been charged, then the failure of the judge to make those findings is surprising.

20 I give full weight to the fact that his Honour had the advantage of having listened to the tape recordings of the telephone calls and drew from them the conclusion that the respondent did not seem particularly eager to assist Waters. It is, however, difficult to conceive any other motive for Waters' approach to the respondent save to discover what Robbins may have said, in particular whether he had implicated Waters. It beggars belief that the respondent might not have even suspected that to be the motive. Nonetheless, no grounds of appeal complained about the absence of such findings, and there being no ground of appeal making that complaint, nor an application to amend the grounds, Mrs Quin accepted that the Court could not itself make those findings.

21 On the plea hearing the prosecutor advised his Honour that save for contending that he ought impose convictions, the Crown's position was that all other sentencing options were open. In other words, there was no contention that the judge was bound to impose a sentence of imprisonment, whether suspended or not. Mrs Quin accepted that having regard to that concession below, the issue on appeal was somewhat confined. In the first place, it was only as to count 1 that the appeal was directed and, secondly, the complaint was only that the judge failed to impose a conviction on that count.

22 In her written submissions Mrs Quin contended that the judge failed to give sufficient weight to general deterrence because, having decided that a substantial fine would adequately address general deterrence, he then imposed a fine which was too low to achieve that objective when coupled with the fact that no conviction was imposed. That submission led the Court to enquire whether it was the mere fact that no conviction had been recorded that was the Director's complaint or, rather, the complaint was that if no conviction was to be recorded then the fine had to be higher. Mrs Quin conceded that had there been a substantially higher fine - she suggested in the order perhaps of $20,000 - then, even if there was no conviction recorded, the Director might not have appealed.

23 Those concessions, when coupled with the unchallenged failure of the judge to make findings that the respondent's conduct was anything more than an error of judgment, render the Director's task of successfully challenging the sentence difficult indeed.

24 His Honour gave detailed reasons for agreeing not to impose a conviction. He said that he reached that conclusion "somewhat hesitatingly", noting that this was the first time a charge had been brought against a police officer in the County Court for misconduct in public office. He said that a non-conviction sentencing disposition should not be treated as a precedent for any future case.

25 The paramount factor in the decision not to record a conviction was his Honour's conclusion that: "It is my considered opinion that the probabilities are high, that a conviction for that offence would cause you great difficulty." His Honour was concerned as to the impact of a conviction on future job prospects of the respondent. However, while that factor was of particular importance, he also had regard to a range of other mitigating factors. They included the applicant's age (he is now 30 years), his pleas of guilty at an early time, his co-operation with investigators, his deep remorse and shame, his lack of prior convictions and, of course, the fact that he had lost his career as a police officer, after eight years, that being a career he loved.

26 Mrs Quin submitted that the penalty imposed simply failed to reflect the seriousness of the offence, the breach of trust and the damage to public confidence which the offence represented. The factor of general deterrence was undervalued to a degree manifesting error, she submitted, in particular by his Honour treating the fact that the prosecution was brought in the County Court as itself a punishment constituting general deterrence. This was an indictable offence, Mrs Quin submitted, and was properly before the County Court. The fact that it was brought there rather than be made the subject of prosecution for unauthorised disclosure of information in the Magistrates' Court under s. 127A of the Police Regulation Act 1958 merely reflects the seriousness of the offence, and should not be regarded as a punishment in itself, she submitted. Whilst a conviction might have an adverse impact on employment prospects, future employers were entitled to know that he had committed such an offence, she submitted.

27 Mr Holdenson, in response, placed reliance on the findings of fact of his Honour. He submitted that in exercising his discretion under s.8 of the Sentencing Act 1991 not to record a conviction his Honour had given close attention to all of the relevant considerations therein listed, as his detailed reasons demonstrated. It was of particular relevance to have regard to the factor in s.8(c) of the impact of a conviction on the respondent's future employment prospects. Since losing his job the applicant had been fully employed but as a labourer, earning a much reduced income. His Honour's concern that future employment prospects would be diminished by disclosure of such a conviction was well justified, Mr Holdenson submitted. The reduced income was of particular consequence due to the financial impact of a serious illness suffered by the respondent's partner[1]. Counsel submitted that the fine which was imposed was a significant sum for a person who had lost so much money as a result of losing his job and whose income at the time of sentencing was just $750 gross per week.

28 The principles concerning Director's appeals are well known and do not need elaboration[2]. The complaint is that the sentence was manifestly inadequate rather than that there was sentencing error. It was accepted that this Court was bound by the findings of fact made by the judge, since the Notice of Appeal does not seek to challenge those findings[3].

29 The complaint of manifest inadequacy must therefore be judged in the light of findings that the conduct did not display moral turpitude, but rather an error of judgment. That finding, in my opinion, was remarkably generous. The evidence before the judge seems to me to have pointed very clearly to the opposite conclusion, but we are bound by the finding made, having regard to the factor of double jeopardy which attends a Director's appeal, and to the consequent requirement that the appeal be strictly confined by the terms of the Notice of Appeal.

30 Given, further, the concession that a substantially higher monetary penalty, without conviction, might not have constituted a manifestly inadequate sentence, the parameters of the appeal are even further narrowed. Had I been sentencing at first instance I would undoubtedly have recorded a conviction, in addition to such further penalty as I would have imposed, but the question is whether it has been shown that the penalty imposed by the learned sentencing judge, in the exercise of his discretion, was outside the range of appropriate sentencing dispositions available to him in the circumstances of this case. In my opinion, it cannot be said that the sentence, viewed against the constraints discussed above, is manifestly inadequate. His Honour remarked that any offenders later falling for sentence in like circumstances for the same offence could not expect to benefit from a similar sentence. I endorse that observation. This sentence was very lenient indeed. It would be highly likely that any future offender, perhaps even one who was the beneficiary of similar favourable findings of fact as to his or her motive, would be at risk of a sentence of imprisonment. The reasons why that penalty was not sought by the prosecutor before the judge did not emerge on the appeal.

31 The appeal should be dismissed.

32 I agree with Eames, J.A. In the light of the special circumstances that we are circumscribed by the facts found by the sentencing judge, the decision of the Crown not to appeal against the findings and the concession by the Crown that the sentence might not have been manifestly inadequate if a larger fine had been imposed, the appeal should be dismissed, notwithstanding the obvious gravity of the offence.

33 Like my brother Eames, I find it impossible to believe that the reasons underlying Waters' request of the respondent for information were not apparent to the respondent. In my view it is not just that the reasons should have been apparent to a police officer of the respondent's significant intelligence and seniority, but beyond reasonable doubt they would have been apparent to any adult, even of the most basic intelligence. With all respect to the learned sentencing judge, I think it fanciful to suppose that the respondent could have believed that the provision of criminal intelligence to a known drug dealer was a "relatively innocent transfer of information" to someone to whom he felt bound by ties of friendship and loyalty. It follows that I am unable to accept that the respondent's crime should be sloughed off as a mere error of judgment, falling short of moral turpitude. In my judgment it was a serious offence.

34 As it appears to me, there is throughout the learned sentencing judge's remarks an idea that the respondent was somehow harshly dealt with by being charged with an indictable offence of misconduct in public office, rather than being dealt with summarily under the Police Regulation Act 1958. Rightly or wrongly, I gain the impression also that his Honour's sentencing disposition may have been informed by some such notion. Such a notion would be misconceived.

35 Although it may be that the offence of misconduct or misfeasance in public office is seldom charged, it was the appropriate offence with which to charge the respondent. Unlike the narrower offences of bribery and extortion, the offence of misconduct in public office is not primarily concerned with abuse of position for pecuniary gain, but rather, as a common law offence, it gives expression to principles attributed to Lord Mansfield: that a man accepting an office of trust concerning the public is answerable criminally to the Crown for misbehaviour in the office; and that, whereas breach of trust, fraud and imposition in a matter concerning the public is as between individuals only actionable, between the Crown and the subject it is indictable.[4] The object is to ensure that an official does not, by any wilful act or omission, act contrary to the duties of his office; does not abuse intentionally the trust reposed in him.

36 Upon his appointment as a constable, the respondent accepted an office of trust under the Crown. In passing on information to Waters, the respondent intentionally abused that trust. As a police officer, he had trusted access to the LEAP data base for use for police business and, as an experienced police officer, he knew it was his duty to maintain the confidentiality of that information, and therefore not to pass it on to persons not authorised to receive it. In breach of the trust reposed in him, and in breach of his duty as a police officer, he chose to pass on information concerning the arrest of a man suspected of drug offences to someone whom the respondent knew to be a drug trafficker; and plainly for that the respondent was properly to be indicted.

37 Were it not for the way in which the matter was conducted before the

sentencing judge and on this appeal, I have no doubt that the respondent should have been convicted of the offence of misconduct in public office, and that the seriousness of the offence would have warranted a term of imprisonment. It is another matter whether part of the term should have been suspended. As it is, however, as Eames, J.A. has explained, because of the way in which the matter was conducted before the sentencing judge and on appeal before this Court, it is not now open to rectify the position.

38 In the result, therefore, for the reasons which Eames, J.A. has given, I too would dismiss the appeal.

39 The order of the Court is that the appeal is dismissed.

An indemnity certificate is granted to the respondent under s.15(1)(a) of the Appeal Costs Act 1998.

[1] On appeal, it was not argued that the illness of the respondent's partner constituted exceptional circumstances justifying reduction of sentence on that account: see R. v. Yates (1998) 99 A.Crim.R. 483; R. v. Holland (2002) A.Crim.R. 451.

[2] R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520.

[3] In the absence of leave being granted to allow the Notice of Appeal to be amended (the power to make such an amendment not being a question which is necessary to resolve) there is force in Mr Holdenson's submission that a complaint of manifest inadequacy, like a complaint that a sentence is manifestly excessive, should not be used as an umbrella under which to shelter discrete complaints of error: see Practice Statement C.A. 1 of 1996 [1997] 2 V.R. 61, par 8.

[4] R. v. Bembridge (1783) 3 Dougl. 327; 99 E.R. 679 at 781; Reg. v. Bowden [1996] 1 W.L.R. 98 at 103; Question of Law Reserved (No.2 of 1996) [1996] SASC 5674; (1996) 67 S.A.S.R. 63; (1996) 88 A.Crim.R. 417 at 418.