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.