HUGHES, Jenna Lee v R

Court of Criminal Appeal (NSW)|2013-12-09|Before: Hoeben CJ, Simpson J, Hall J

Judgment 1HOEBEN CJ at CL: I agree with Simpson J and Hall J. 2SIMPSON J: I have read in draft the judgment of Hall J. I agree with the orders his Honour proposes. I prefer to state, as briefly as possible, my own reasons for reaching that result. 3The applicant entered pleas of guilty in the Local Court to four counts. In order of commission, the offences were: (i) an offence of misconduct in public office, committed between 31 August 2009 and 23 June 2011; (ii) a second offence of misconduct in public office, committed on 24 April 2010; (iii) two offences of giving false evidence to the Police Integrity Commission, each committed on 23 June 2011. 4Misconduct in public office is a common law offence, for which no penalty is prescribed by statute. The penalty is "at large". Giving false evidence to the Police Integrity Commission ("the PIC") is an offence against s 107 of the Police Integrity Commission Act 1996 ("the PIC Act"), for which the maximum penalty is imprisonment for 5 years. 5On 28 March 2013 Marien DCJ sentenced the applicant. In respect of each of the PIC offences, his Honour sentenced the applicant to imprisonment for a fixed term of 6 months, commencing on 28 March 2013, and expiring on 28 September 2013 (sic), to be served concurrently. (The expiry date should have been 27 September.) In respect to the first count of misconduct in public office, his Honour sentenced the applicant to a fixed term of imprisonment for 7 months, commencing on 28 May 2013 and expiring on 27 December 2013. This sentence was therefore accumulated by 2 months on the PIC offence sentences. In respect of the second such count, his Honour sentenced the applicant to a total term of imprisonment of 18 months, commencing on 28 June 2013 (and therefore accumulated by 1 month on the previous sentence) and expiring on 27 December 2014, with a non-parole period of 9 months expiring on 27 March 2014. In accordance with s 50 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") he made an order directing the release of the applicant at the end of the non-parole period. 6The aggregate sentence was, therefore, of imprisonment for 1 year and 9 months, with a non-parole period of 1 year, expiring on 27 March 2014. In sentencing the applicant as he did, Marien DCJ gave effect to a finding, pursuant to s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the statutory ratio between the head sentence and the non-parole period. The proceedings in the District Court 7Sentencing proceedings commenced on 22 November 2012. They were protracted. An Agreed Statement of Facts (about which I will say more below) was presented, together with supporting documentation, a Pre-Sentence Report, and a written outline of submissions by the Crown. The applicant gave evidence, as did her father, a friend (Gary Brown) and a psychologist (Ann Maree De Santa Brigida). A considerable volume of medical reports, including psychiatric and psychological reports, was tendered. After hearing evidence and argument Marien DCJ made it plain that he considered that the criminality called for a custodial sentence. However, he adjourned the proceedings to 25 January 2013, to enable the applicant to be assessed for suitability for the imprisonment to be served by way of home detention or an Intensive Correction Order: Sentencing Procedure Act, s 6 and s 7 respectively). She was ultimately assessed as suitable for an Intensive Correction Order. No assessment as to her suitability to serve a sentence in home detention was provided. 8On 25 January 2013, the applicant gave further evidence and was further cross-examined. As a result of the evidence she gave the matter was further adjourned, to 5 March 2013. The purpose of the adjournment was to enable the Crown to adduce further evidence. That will be explained below. 9The applicant was eventually sentenced on 28 March 2013.

The facts 10The Agreed Statement of Facts was extraordinarily confusing and uninformative. So much was accepted by counsel who represented the Crown at the sentencing hearing (who was not involved in its preparation). Counsel have a responsibility to ensure that relevant material is put, in comprehensible form, before a sentencing judge. That was not done in this case. Both parties bear responsibility for the unsatisfactory way in which the facts were presented. However, from all of the material ultimately presented, the following can be discerned. 11The applicant was at all material times a serving police officer, stationed at Surry Hills. She had held that position since October 2008. As part of her role as police officer, the applicant was permitted to access a police database formally known as Computerised Operational Policing System of the NSW Police Force, commonly known as and hereinafter at times referred to as "COPS". She was also entitled to (and, no doubt, on occasions, obliged) to enter information into COPS. The applicant's entitlement to use that access, however, was circumscribed. She was entitled to do so only for reasons legitimately associated with her duties as a police officer. And, not surprisingly, she was only entitled to enter information she genuinely believed to be correct. In order to protect the integrity of the system, any access to COPS is recorded. Each of the misconduct in public office offences was committed by the applicant having unauthorised access to COPS, and, in one instance, making an entry that she knew to be false. 12It appears that the applicant had become personally involved with some criminal figures in the area. At one point, she had a romantic relationship with a man called Jack Sweeney (also known as Jack Moran). Later, she was romantically involved with another man, Neil Cummins. The latter relationship was current as at April 2010, the date of the second offence. Count 1 13In the very early hours of 31 August 2009 a motor vehicle was stolen from a man delivering newspapers in Darlinghurst. It was later recovered some distance away. Sweeney and another man (Gavin Rogers) admitted to the applicant that they had been involved in the theft. She did not report these admissions to police investigating the theft. At the behest of Rogers and Sweeney, the applicant accessed the COPS database. Her purpose in doing so was to ascertain whether Sweeney and/or Rogers were under suspicion for the motor vehicle theft. Between 21 October 2008 and 23 October 2009 the applicant accessed the database on no fewer than 47 occasions. 25 of the accesses related to the theft of the motor vehicle, 22 to other offences associated with Sweeney and/or Rogers. The applicant conveyed the result of her searches to Sweeney and Rogers. 14As set out in the Agreed Statement of Facts, the first offence of misconduct in public office had two components: (i) the applicant's failure to pass on to appropriate police the admissions made to her by Sweeney and Rogers; (ii) improper access by the applicant to COPS for illegitimate purposes, and the passing on of the information so gained. Count 2 15The second offence was committed on 24 April 2010. As mentioned above, the applicant was then in a relationship with Cummins. Cummins was believed to be the bodyguard of a notorious Kings Cross identity, John Ibrahim. A brother of Ibrahim had been seriously assaulted. The Ibrahim family believed that a man named John Macris had attempted to murder the brother. Cummins knew the registration number of Macris' motor vehicle. He asked the applicant to use the COPS database to ascertain the residential address of the owner of the vehicle. Between 6.36am and 6.50am the applicant accessed the database for that purpose on seven occasions. It seems that the searches revealed that the registered owner of the vehicle was Alexandros Macris. John Macris and Alexandros Macris are brothers. 16At 6.51am, realising that her access was recorded, and that she needed to establish a legitimate reason for having accessed the database, the applicant entered an intelligence report. She recorded that, while patrolling Oxford Street, Surry Hills, she observed a vehicle (giving the registration number of Macris' vehicle), carrying four male passengers of Middle Eastern appearance, with tattoos on their arms. She recorded that, on her return to the police station, she made checks that revealed the vehicle and its owner (Alexandros Macris) to have "serious intel for OMCG (Outlaw Motor Cycle Gang) and Firearm offences". This report was entirely false, and created by the applicant for the purpose of justifying her earlier access. Counts 3 and 4 17In March 2011 PIC began investigating allegations of misconduct by the applicant. On 23 June 2011, in an answer to a summons, she appeared before PIC and was questioned. The evidence she gave was, in two respects, false. 18She said that she had had operational reasons for accessing COPS in relation to Sweeney. She gave as the reason that Sweeney had reported that he had lost his keys in a marathon, and she entered that report on COPS. This evidence was false. 19In relation to her access to COPS with respect to Macris, she maintained that she had seen his vehicle in the circumstances that she had described in the (false) entry. 20Later on the same day, after the luncheon adjournment, the applicant admitted that her evidence was, in two respects, false. It was false to say that she searched COPS with respect to Sweeney because he had reported lost keys. And it was false to say that she had seen the vehicle with Macris' registration number in Oxford Street. She said that she created the false entry after discovering that the vehicle the subject of the inquiry on behalf of Cummins revealed the owner of the vehicle to be Alexandros Macris, in order to "cover up" her earlier unauthorised access. She said that after giving the false evidence, she had time to think about having done so, and realised that she ought not to have done so. It is important to observe that the applicant herself volunteered that she had earlier given false evidence. However, the applicant maintained that her initial access to COPS was to ascertain the ownership of the vehicle. She said: "When I received the registration plate, I looked up the registration plate, realised who it was. I freaked out because of the name, and then I created the intel report." This gave rise to a significant issue in the sentencing proceedings, and goes some way to explaining their protracted nature. 21She said that when Cummins asked her to obtain the address of the owner of the car, he did not mention the name "Macris", and that, after the search, when the name "Macris" came up, she "freaked out even more because it's Macris". 22It is clear that the applicant appreciated the significance of ascertaining, on behalf of a person thought to be associated with criminal elements, the address of a person those criminal elements believed to have been involved in an attempted murder.

The evidence in the sentencing proceedings 23The evidence in the sentencing proceedings fell into two categories: that concerning the applicant's personal circumstances, and that concerning the circumstances and detail of the offences. It will be necessary to return to the former; I now propose to consider the evidence concerning the circumstances of the offences. Evidence concerning the circumstances of the offence 24In her evidence on 22 November the applicant was asked about her search of the database concerning Macris. She adhered to the position she had taken in the PIC inquiry. Her answer was as follows: "It came about, Neil [Cummins] asked me - he gave me a registration plate and he asked me if I could confirm that the owner of the car lives in Mosman and I said, yeah, I can do that. And I went onto the COPS system, I typed in the rego plate, and once I'd typed it in it started flashing red and it said - I think it was Alexander Macris (sic). And I knew the name and I freaked out because, one, I shouldn't have been doing this anyway let alone looking up Alexander Macris (sic). And so I freaked out, I created a false intel report to cover as to why I looked him up, and then when I spoke to Neil again I actually had a go at him and said, 'How dare you make me look up him. You know he lives in Mosman.' That's all. I never gave an actual address, I just confirmed that he knew he lived in Mosman." This evidence was consistent with the explanation she had given in PIC. It was, however, inconsistent with material derived from COPS contained in the Agreed Statement of Facts. That clearly indicated that the first search made by the applicant was of the name "Macris, Alex", and not a vehicle registration number. The second search was of the vehicle registration number, as was the seventh. If that were correct, the applicant's evidence, both in PIC and in the District Court, that she "freaked out" on learning the identity of the registered owner, could not be true. 25When the matter returned to court in January the following year, counsel for the Crown sought to adduce additional evidence concerning the answer. The issue is of some significance; on the applicant's evidence her misconduct was in seeking access to information about the ownership of identified motor vehicle. She had no suspicion that the inquiry involved a person whose name was known (unfavourably) to police and who was believed, by others, to have been involved in an attempted murder. She had no reason to suspect that the motor vehicle was associated with any criminal or underworld figure. However, if as the Crown contended, her first search was of the name "Macris", that answer was not only false, but she could reasonably be expected to have known that she was involving herself in events which may have included serious criminality. Indeed, the Crown put a submission before Marien DCJ that the applicant, in the circumstances, would have foreseen the possibility of some harm coming to Macris. 26After further discussion the applicant gave further evidence. She maintained that the first entry she had made into the database related to the vehicle registration number, and not to "Macris". She described herself as "adamant" and "150 per cent" certain of that, and said that there was no possibility of lapse of memory. She acknowledged that she was aware that Macris was a person of "significance", although she did not know any detail about him. She said, as she had previously, that when the name "Macris" came up as the owner of the vehicle, she "freaked out" and said that this was because: "... when you look up someone of significance it flashes red, which means that they are a major person of interest ... because when it flashes red you shouldn't be looking them up. Just like you shouldn't look John Ibrahim up because he flashes red, unless you have a really good reason to look him up." Under cross-examination, the applicant maintained this position. 27There is no doubt that the issue was a significant one in the assessment of the objective gravity of this offence. It was for that reason that the matter was further adjourned in order for the Crown to clarify the factual issue. On 5 March 2013 a statement by Sergeant Herbert Hobbs was tendered, and Sergeant Hobbs gave evidence at length. Sergeant Hobbs was attached to the COPS database management section. His evidence can be relatively shortly stated. It was to the effect that the entry first recorded in the Agreed Statement of Facts represented the first search by the applicant. That was now significant for two reasons: first, because (as the applicant explicitly recognised) accessing information concerning a significant crime figure was more serious than accessing information about the registered owner of a motor vehicle; second, because it would, or could, indicate that the applicant had been untruthful in her evidence, both in the PIC (even after her admission of having given false evidence) and in the District Court. Evidence concerning the applicant's personal circumstances 28The evidence concerning the applicant's personal circumstances was extensive. She was born in March 1988 and was 21 years of age at the time she commenced her offending. She was admitted into the Police Force in October 2008 at the age of 20. Entering the Police Force had been a long-held ambition of hers, as is, perhaps, evident from the circumstances in which she gained admission. She gave evidence of her psychiatric history. 29A treating psychiatrist, Dr Richa Ristogi, reported: "[The applicant] reports onset of her problems since 2009 whilst working as a police officer. During her tenure as a police officer she stated that she had witnessed multiple stressful events some of which had been life threatening causing significant stress. This was emotionally impacting her and there had been personal losses and witnessing other negative incidents. Of particular she described of being present in an incident in October 2009 where her friend and colleague was severely injured in Motor vehicle accident ... Furthermore she was involved in a Motor vehicle accident in February 2010 ... she described recurrence of flashbacks, nightmares triggered from past memories in 1997 when she found her friend dead and this caused sleep disturbances. This was compounded by witnessing a deceased male who appear (sic) to be shot through his head in March 2010, he had not in fact been shot but had been stabbed and mutilated. Post this event she describes a period of extreme nausea and daily sickness in her abdomen which persisted for weeks. This culmination of series of events in the background of her own past vulnerabilities and current job requiring to face traumatic situations took a toll and being sleep deprived she resorted to self medicating with a variety of analgesic preparations ..." This history would suggest that the applicant's psychiatric and psychological problems were of recent onset, and associated with her employment. 30However, later in the report, under the heading "Past psychiatric history", Dr Ristogi said: "[The applicant] has a significant past psychiatric history which is a predisposing factor for relapse and contribution to her present condition. She first was diagnosed with depressive disorder at the age of 14 years and had contact with a Child Psychiatrist at Sutherland Hospital. She was treated with an anti-depressant Zoloft for 18 months as well as supportive counselling for a period of 3 years. Her symptoms included an episode of deliberate self-harm and impulsive overdose of medications. The triggers at the time were relationship stressors and compounded by witnessing the death of a friend in 1997 who had been shot through his head." 31The evidence established that the applicant has long suffered from a variety of psychological or psychiatric conditions. From 2002 to 2006 she had undergone counselling for major clinical depression and anxiety disorder characterised by suicidal ideation and self harm behaviour. According to her general practitioner, over 4 years from 2008 to 2012, she had presented with symptoms of chronic anxiety, insomnia, post-traumatic stress disorder and panic disorder. 32Dr Ristogi addressed the subject of the risk of re-offending, and considered that the applicant was less likely to re-offend based on her then current clinical condition. 33Ms Brigida took a history similar to that of Dr Ristogi and had a similar opinion. Importantly, Ms Brigida said: "It is the assertion of this author that at the time of the offences, [the applicant] was greatly affected by the presence of complex PTSD and that the presence of this disorder has resulted in the poor self image and a fragile self concept. Her behaviour at the time of the offences was also affected by her lack of boundaries in relationships which is attributable to her Complex PTSD and her overwhelming need to feel acceptance by others." 34In fact, the applicant's initial application for entry to the police academy as a trainee police officer was rejected on psychological grounds. The applicant then obtained a psychiatric report that supported her application, but she said in evidence that she gave untruthful answers to the psychiatrist, withholding from him information about her previous psychiatric conditions. As a result, she was accepted for training as a police officer. 35Both Dr Ristogi and Ms Brigida recorded a number of traumatic events in the applicant's past. One, for example, occurred when she was nine years of age. She told Ms Brigida that, walking with her dog, she had passed the home of a family friend and looked in the screen door. She saw the friend lying on the floor. Three days later it was discovered that he had been shot through the head "execution style". 36In oral evidence, Ms Brigida said that she thought that the applicant's mental health history had played "a very big part" in the commission of the offences.

The remarks on sentence 37His Honour's account of the relevant facts was drawn largely from the Agreed Statement of Facts to which I have already referred, supplemented by reference to the oral and documentary evidence. He paid considerable attention to the applicant's oral evidence. 38In fact, his Honour took a highly unfavourable view of the applicant's credibility. He accepted the evidence of Sergeant Hobbs, that the applicant's first access to the database on 24 April 2010 involved the entry of the name "Macris". The consequence of that acceptance was that he did not accept the applicant's evidence in the sentencing proceedings, and also considered that the evidence she gave in the PIC continued to be false, even after her apparent confession of falsity. His Honour said: "On all the evidence before me I am satisfied beyond a reasonable doubt that the [applicant] deliberately lied in her evidence before me when she denied that her initial search on the COPS system on 24 April was in relation to the person Alex Macris, and that she deliberately lied when she said that her first access into COPS on that day was in relation to the registration number. Moreover, I am satisfied beyond a reasonable doubt when the [applicant] returned to the hearing room at the [PIC] on the afternoon of 23 June 2011, and purportedly gave a truthful account, she also further deliberately lied before the [PIC] when she stated that she only looked up the registration number. I am also satisfied beyond a reasonable doubt that when the [applicant] gave information she obtained from the searches on COPS to Cummins she was aware of the real possibility that the information would be passed on by Cummins to criminal elements and that as a result of her passing on that information to Cummins some physical harm might befall Alex Macris, or a member of the Macris family. The [applicant] agreed in evidence that at the time of the search she knew that there was some link, or suggestion, that John Macris was involved in the shooting of Fadi Ibrahim ... She also agreed that she knew, after conducting the searches on COPS, that Alex Macris was the brother of John Macris." There were important findings of fact to which no challenge was made. 39His Honour found that the applicant's awareness of a "real possibility" that the information she provided might result in harm to Macris or a member of his family was a significant circumstance of aggravation in relation to count 2. He then held that the fact that the applicant had lied before PIC and before him in the sentencing proceedings indicated that she was not genuinely remorseful for her serious criminal conduct. 40With respect to the mental health issue, his Honour held that the applicant: "... was acting with deception and planning, attempting to cover up her criminal conduct with false intelligence reports [and that] she was fully aware of the seriousness of the criminality of her conduct." 41He accepted the opinions of Ms Brigida and Dr Ristogi that the applicant's mental health history played some part in the commission of the offences, but rejected Ms Brigida's evidence that those factors played "a very big part" in the applicant's criminal offending. He accordingly considered that the applicant's mental disorders and history of mental health problems could not be given significant weight in the sentencing exercise. He expressly rejected as unjustifiable a concession by the Crown that the imposition of an Intensive Correction Order would not be an erroneous exercise of sentencing discretion. 42With respect to the objective seriousness of the offences, Marien DCJ properly considered each offence. He said: "The offences for which the [applicant] is to be sentenced are extremely serious. In relation to the misconduct by public office offences the [applicant] was a serving police officer. The offences involved a gross breach of trust on her behalf. The community is entitled to have confidence in members of the Police Force and is entitled to expect that the confidential information held by police be used only for legitimate police purposes. Considerable weight must be placed on general deterrence when sentencing for such offences. The offence of knowingly give false evidence at a hearing of the [PIC] carries a maximum penalty of five years imprisonment. Offences of perjury and false swearing undermine the very foundation of the justice system. The need for general deterrence is the prime consideration when sentencing for offences of that kind ... Courts have consistently held that offenders who commit perjury or false swearing in the course of judicial proceedings ... should do so in the clear understanding that if their offence is detected they will receive a fulltime custodial sentence except in exceptional circumstances ... In my view the objective seriousness of the misconduct of a holder of public office offences falls at the upper range of objective seriousness for offences of that kind. In coming to that view I have taken into account and accepted the opinions of Ms Brigida and Dr Ristogi that the [applicant's] mental health history has played some part in the commission of these offences. However, I am unable to agree with Ms Brigida that the [applicant's] mental health history played 'a very big part' in her criminal offending. The [applicant] was not subjected to any pressure or coercion by any person to commit those offences. She acted freely with full knowledge that her conduct was criminal conduct of a very high order. She did not act impulsively or chaotically when she committed these offences. There was considerable planning by way of her creation of false intelligence reports to cover her tracks. In my view the objective seriousness of the offences, taken together with the need for - in relation to all offences - sentences which place considerable weight on general deterrence require that nothing less than a custodial sentence can be imposed for all offences."

The grounds of the application 43Three grounds of appeal were notified. They are: "1 His Honour erred in determining the objective seriousness of each offence (particularly count 4) and, in that regard, placed too much weight on the applicant's evidence given at the sentence hearing. 2. His Honour erred in failing to take into account the likelihood that the applicant would serve her sentence in protective custody. 3. His Honour erred in failing to properly take into account the applicant's mental health issues." Ground 1: objective seriousness 44The submissions on behalf of the applicant placed considerable weight on the position adopted by the Crown at sentencing, that a non-custodial sentence, by way of Intensive Correction Order, would not be manifestly inadequate. Quite properly counsel did not suggest that the position adopted on behalf of the Crown in any way bound the sentencing judge. 45What counsel did rely on was what was characterised as a change of approach on the part of the judge. Because he had, as at 22 November 2013, contemplated that an Intensive Correction Order might adequately meet the needs of the case, his departure from that position following the exposure and resolution of the factual issue concerning the applicant's searches on 24 April 2010 indicated that he used the relevant findings of fact to elevate, not only the objective gravity of that offence, but the objective gravity of all offences. 46Reference was then made to the finding with respect to the applicant's credibility, and particularly to her evidence about her first search on 24 April. The submission was made that: "... the court's finding should have, if anything, only adversely affect[ed] consideration of the applicant's subjective factors such as remorse and contrition ..." 47This submission overlooks the important factual finding made by Marien DCJ, that the applicant was fully aware that disclosure of the information to Cummins might result in harm (and serious harm) to Macris or a member of his family. That is a very significant factor in the evaluation of the objective seriousness of the offence the subject of count 2. 48Counsel then pointed out that, from the beginning, the Agreed Facts had stated that the first entry made by the applicant was a search for the name "Alex Macris", and, therefore known to his Honour when he first considered imposing and Intensive Correction Order. His initial consideration of imposing such an Order ought not to have been affected. 49The submission is untenable. Marien DCJ explicitly said that the fact that he requested an assessment was not an indication that a sentence of fulltime custody would not be imposed. Moreover, the applicant's continued adherence to her relatively innocent explanation for her conduct (which he rejected) was properly relevant to the assessment of remorse or contrition, and, accordingly, prospects of rehabilitation. 50In truth, his Honour's findings related significantly to the applicant's prospects of rehabilitation, given that she did not fully acknowledge the extent of her criminality. That was relevant to all offences. It is true that the applicant will never again be in a position to commit offences of the kind the subject of the present proceedings. However, his Honour was correct to treat the misconduct in public office offences as having a high level of objective seriousness. 51Indeed, in view of those findings, the sentences imposed could be said not to reflect that high level. For objectively serious offences, each sentence is relatively benign. 52It is true that there was a degree of amelioration in relation to the PIC offences, in that the applicant voluntarily disclosed the falsity of her initial evidence: cf Thewlis v R [2008] NSWCCA 176. However, her retraction was only partial. She maintained, and continued in the District Court to maintain, that her first search in the second offence was with respect to the motor vehicle registration number. In the face of the evidence of Sergeant Hobbs, this was simply unsustainable. 53In any event, having regard to the manner in which Marien DCJ structured the sentences, the time served exclusively with respect to the PIC offences was two months. Those are lenient sentences. And the time served exclusively with respect to the first misconduct offence was only one month. That is even more lenient. Ground 2: protective custody 54This ground can be dealt with shortly. No mention was made during the entire sentencing proceedings of the likely circumstances of the applicant's custody. It was never an issue before Marien DCJ. His Honour could hardly be said to have been in error in failing to take it into account. Indeed, although it is frequently believed that a police officer sentenced to imprisonment will serve a sentence in protective custody, there was no evidence to that effect, and penal policy changes from time to time. There is no basis for accepting fresh evidence with respect to the circumstances of the applicant's custody. I would reject ground 2. Ground 3: mental health issues 55There is no doubt that the applicant has suffered and continues to suffer significant mental health issues. The authorities in that respect are well known and establish, inter alia, that a causal connection between mental illness and the commission of offences may ameliorate the moral culpability involved in the offence. However, it may also have other consequences: see the discussion by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] and [178], and the cases there cited. 56Marien DCJ made clear and careful findings about the applicant's mental health issues, and their relationship to the commission of the offences. Those findings have not been undermined. Again, examination of the sentences actually imposed (and as structured) demonstrates beyond question that every consideration was given to every matter operating in the applicant's favour with respect to sentence. 57For these reasons I agree with Hall J that the applicant should be granted leave to appeal, but the appeal should be dismissed. 58HALL J: The applicant, Jenna Lee Hughes, by Notice of Appeal filed on 2 October 2013, seeks leave to appeal against sentences imposed upon her by the District Court of NSW. She was charged with the following offences: Count 1 - misconduct in public office between 31 August 2009 and 23 June 2011. Count 2 - misconduct in public office on 24 April 2010. Count 3 and Count 4 - give false evidence to Police Integrity Commission on 23 June 2011: s 107 of the Police Integrity Commission Act 1996. 59The applicant was sentenced as follows: Counts 1 and 2: A fixed term of imprisonment of 6 months commencing on 28 March 2013 and expiring on 28 September 2013; Count 3: A fixed term of imprisonment of 7 months commencing on 28 May 2013 and expiring on 27 December 2013. Count 4: A term of imprisonment comprising a non-parole period of 9 months commencing on 28 June 2013 and expiring on 27 March 2014, with an additional term of 9 months to expire on 27 December 2014. 60Accordingly, the applicant was sentenced to a total term of 1 year and 9 months imprisonment commencing on 28 March 2013 and to expire on 27 December 2014, with a total non-parole period of 1 year expiring on 27 March 2014.

Factual Matters 61The sentence proceedings commenced on 22 November 2012. The "Crown Bundle" was tendered (Exhibit A) which included a document entitled "Agreed Facts". The following is a summary of the facts that were agreed between the parties.

Lying to the Police Integrity Commission (PIC): Two Counts 62The facts in relation to Counts 1 and 2 were the subject of evidence given by the applicant on 23 June 2011 when she appeared upon Summons before the PIC. The Agreed Facts contain a more detailed account of the events.

Count 1 63On 20 September 2009, the applicant accessed the Computerised Operational Policing System of the NSW Police Force (COPS) for details of the person Jack Sweeney, also known as Jack Moran, for the purposes of recording an event. Sweeney and the applicant were in a relationship at the time. The applicant created an event on the COPS database. It stated that Sweeney had approached the applicant on Oxford Street to report his keys lost after competing in a marathon. The applicant did not record this in her official police notebook. The Lie 64The applicant initially stated that she had operational reasons for accessing Sweeney's details on the COPS database because there had been an incident involving him losing his keys and it needed to be reported. She gave evidence to the PIC along those lines. Later the applicant admitted that this had not happened. It is unnecessary here to set out the precise evidence given. 65The lie told by the applicant was that, originally she told the PIC that Sweeney had lost his keys and that that was the reason she accessed information relating to him. 66However, she failed to inform the PIC from the outset that she had concocted the story in an effort to cover-up accessing other information about Sweeney on COPS.

Count 2 67On 24 April 2010, the applicant submitted an intelligence report on COPS. The report stated that she had seen a vehicle (the registration number was provided). Inside it, she claimed that she saw four men of Middle Eastern appearance travelling west on Oxford Street, Surry Hills, in the early hours of the morning. 68Upon her return to the station the applicant completed an intelligence report. She accessed the COPS database and searched the registration number of the vehicle. That vehicle was registered to Alexandros Macris. 69As at 24 April 2010, the applicant was in a relationship with Neil Cummins, a bodyguard of Kings Cross identity John Ibrahim. The Ibrahim family was said to have believed that the Macris family were involved in the attempted murder of Fadi Ibrahim. Cummins had sent a text message to the applicant with the registration number of Macris' vehicle. He requested her to ascertain whom the vehicle was registered to and the registered owner's residential address. The Lie 70The second lie relates to the applicant's assertion during the PIC hearing that she had seen the vehicle with the registration number in question, consistent with the intelligence report that she filed. In addition, she asserted that the intelligence report had not been a fabrication and that she had legitimately accessed the COPS database for the purpose of searching the vehicle registration by reason of the event that had taken place. 71A number of answers given by her during the hearing revealed the lengths that the applicant went to in order to argue that she had in fact seen the vehicle with the registration number on Oxford Street and had accessed COPS for the purpose of providing an intelligence report in searching the vehicle registration, rather than obtaining Macris' personal details to confirm them with Cummins. The particulars of the evidence given in that respect were set out in the Agreed Facts. 72Following the luncheon adjournment on the day she was giving evidence, the applicant then made admissions. She admitted that she had placed the matter on the COPS system as a "cover-up" for looking at the registration details. She additionally said that she did it because Neil Cummins had sent her a text. He said that he wanted the address of the person that owned the car. She said he never mentioned Macris. She then said that when she did the vehicle inquiry it "lit up" with the last name "Macris". She said she "freaked out" because she should not have been doing it. Seeing the name Macris she said "freaked" her out even more because of the name. She created the "Intel Report as a cover-up".

Misconduct in Public Office: Two Counts 73The PIC was investigating allegations of wrongdoing relating to the applicant. As a result of those investigations, the applicant was charged with two charges of misconduct in public office relating to her improperly accessing the NSW Police Force COPS database and creating false COPS database intelligence reports. Details of matters concerning the charges are as follows: (a) Count 1 - Alexandros Macris 74On 24 April 2010, as noted above, the applicant accessed the COPS database. An audit found that she made seven accesses and created one Intelligence Report. The Intelligence Report gave the false account of having seen the vehicle in question on Oxford Street, Surry Hills, with four passengers who appeared to be of Middle Eastern appearance. 75She created the false Intelligence Report in order to mask her inappropriate access and to justify her accessing the details relating to the vehicle in question. 76The inappropriate accessing of the information and subsequent creation of a false Intelligence Report was the subject matter of the Misconduct in Public Office charge. The applicant at the time was a public official who in the course of her duties carried out activities amounting to misconduct having regard to her responsibilities as a police officer. (b) Count 2 - Jack Sweeney and Gavin Rogers 77On 31 August 2009, a man was delivering newspapers. He parked his vehicle outside the Firestation Newsagency located in Darlinghurst Road, Darlinghurst. As he parked it he noticed two men standing outside the newsagency. 78Whilst he was making his delivery he had left the vehicle running and the keys in the ignition. 79After delivering the newspapers he saw one of the men that had been standing outside was in the vehicle, in the driver's seat, and the other male was attempting to sit in the passenger's seat. 80Police located the stolen vehicle later that morning. 81After the offence occurred, Gavin Rogers, who was a friend of the applicant and who was an acquaintance of Jack Sweeney (aka Moran), spoke to the applicant about the offence. The applicant told Rogers that she would make inquiries and ascertain if Rogers and Sweeney were suspected of any wrongdoing. 82After having spoken to Rogers, the applicant spoke to Sweeney about what had occurred. She agreed to assist Sweeney find out information about the offence. 83This offence of misconduct in public office related to: (a) The applicant's failure to advise police of the admissions made to her by Rogers and Sweeney in respect of their involvement in stealing a vehicle. (b) Accessing the COPS database to find out information about the car-stealing offence committed by Sweeney and Rogers and then advising them of the result of her accesses. 84A total of 47 accesses of interest relating to either Moran and/or Rogers were identified in the period 21 October 2008 to 23 October 2009. Of these, 25 related to the stealing of the vehicle. The remaining 22 related to Moran and associated events. 85At no stage did the applicant have any operational reasons for her to access the COPS holdings in relation to either Sweeney or Rogers. 86The applicant signed the Statement of Responsibility regarding NSW Police Force Information Systems. She undertook to treat all information coming to her attention as strictly confidential and not to communicate information regarding police business without authority. She further agreed not to access police computer/computer systems for personal use. 87On the facts stated, it is clear that the applicant knew about Sweeney's involvement in the stealing of the car and failed to share this information with police. 88The applicant was aware of the criminal activities of Jack Sweeney and Gavin Rogers, including those activities to which her accesses to COPS in October 2009 related.

The Remarks on Sentence 89In his remarks on sentence the sentencing judge at some length specifically referred to the facts concerning Count 4, being the inappropriate accessing of information from the COPS database on 24 April 2010 and the subsequent creation of the false Intelligence Report. 90His Honour noted in his remarks (p 16) that in the applicant's evidence she was adamant that the first entry she made into the COPS system on 24 April 2009 was the registration number of the vehicle. 91However, evidence was called from Sergeant Herbert Hobbs who provided a statement dated 21 January 2013. He was attached to the COPS Data Management Policing Systems, Business and Technology Services as Team Leader. 92Sergeant Hobbs, his Honour noted, gave evidence that the relevant audit report recorded that at 6.36am the applicant made her first access to the COPS system on 24 April 2010 via a program by the name of "PerFind" and that the offender entered the name Alex Macris. Further, Sergeant Hobbs said that the audit report revealed that the vehicle in question was displayed after the person "Alex Macris" was displayed on the screen and that it displayed the registration number as a direct result of displaying the person "Alex Macris". 93The sentencing judge, in respect of the evidence of Sergeant Hobbs, observed: "... based on his unchallenged evidence I am satisfied beyond a reasonable doubt that the offender's first search on the COPS system on 24 April 2010 was in relation to the person Alex Macris, and not in relation to the registration number, and that as a result of that search, via the Associated Vehicle Option, she searched the details pertaining to vehicle registration number xxx which was owned by a company of which Alex Macris was a director." Remarks on Sentence at p 19. 94His Honour further observed that it was impossible to conclude that when the offender gave her evidence before him, to the effect that her first access to the COPS system related to the registration number of the vehicle, that she had been honestly mistaken about such matters. 95The sentencing judge further observed: "On all the evidence before me I am satisfied beyond a reasonable doubt that the offender deliberately lied in her evidence before me when she denied that her initial search on the COPS system on 24 April was in relation to the person Alex Macris and that she deliberately lied when she said that her first access into COPS on that day was in relation to the registration number. Moreover, I am satisfied beyond a reasonable doubt that when the offender returned to the hearing room at the Commission on the afternoon of 23 June 2011 and purportedly gave a truthful account, she also further deliberately lied before the Commission when she stated she only looked up the registration number": Remarks on Sentence at p 21. 96The sentencing judge proceeded then to make a significant finding in the following terms: "I am also satisfied beyond a reasonable doubt that when the offender gave information she obtained from the searches on COPS to Cummins she was aware of the real possibility that the information would be passed on by Cummins to criminal elements and that as a result of her passing on that information to Cummins some physical harm might befall Alex Macris, or a member of the Macris family. The offender agreed in evidence that at the time of the search she knew that there was some link, or suggestion, that John Macris was involved in the shooting of Fadi Ibrahim. As I said previously her then partner, Neil Cummins, was a bodyguard of John Ibrahim. She also agreed that she knew, after conducting the searches on COPS, that Alex Macris was the brother of John Macris": Remarks on Sentence at pp 21-22. 97The sentencing judge stated that the fact that the applicant had been aware of the real possibility that the information provided to Cummins would be passed on to criminal elements, and that some physical harm might befall Alex Macris or a member of his family as a result of the information being passed to Cummins was "... a significant circumstance of aggravation of the charge of misconduct by a public officer on 24 April 2010 ...": Remarks on Sentence at p 22. 98The sentencing judge further observed that the fact that the applicant had lied before the Commission and lied before him in the sentencing proceedings, "... must result in a finding by me that the offender is not genuinely remorseful for her serious criminal conduct": Remarks on Sentence at p 22. 99The sentencing judge proceeded to consider the applicant's subjective case. He accepted that she did suffer significant mental health issues, having earlier referred to the evidence called in the proceedings from Dr Rastogi, Consultant Psychiatrist, and from a psychologist, Ms De Santa Brigida.

Reports 100In the report of Dr Rastogi tendered in evidence dated 21 July 2012, Dr Rastogi stated, inter alia: "... [the applicant] has multiple vulnerability factors mainly early exposure to trauma, unstable attachments and recurring environmental stressors causing a relapse of PTSD and maintained by exposure to ongoing traumatic events. The chronicity of this disorder with co-morbidities such as drug and alcohol problems and generalised anxiety disorder and panic attacks have impacted her insight and judgment in many domains in her functioning and resulted in unstable relationships. It has also impacted her formation of identity and self-esteem. The lack of normal affective regulation resulted in poor impulse control as demonstrate by her actions during her working tenure as well as her drug and alcohol use. The presence of chronic recurring PTSD with repeated trauma exposure has been a persistent theme of her illness and still continues to interfere with functioning ..." (at p 4).

Grounds of Appeal 101The applicant seeks leave to appeal against the sentences imposed upon the following grounds:

Ground 1: His Honour erred in determining the objective seriousness of each offence (particularly count 4) and, in that regard, placed too much weight on the applicant's evidence given at the sentence hearing. 102In the written submissions for the applicant it was stated that the applicant did not challenge the proposition that a custodial sentence was ordinarily appropriate but sought that it be served by way of a home detention order or by way of an Intensive Correction Order given the applicant's mental health issues. It was observed that the Crown did not suggest that either option was unavailable to the court. 103It was further observed that, following adjournment of the proceedings to permit an assessment report to be obtained about both home detention and an Intensive Correction Order, the matter was re-listed on 26 November 2012. On that occasion it was advised that an assessment as sought could not be ordered. His Honour then indicated that he would request an assessment for an Intensive Correction Order only. 104On 25 January 2013, the sentencing judge provided a copy of the assessment report to the parties which assessed the applicant as suitable for an Intensive Correction Order. His Honour then noted that: "nothing other than a custodial sentence is appropriate given the objective seriousness of all of the offences" but that the question was whether it was appropriate to deal with the matter by way of an Intensive Correction Order. 105No argument was presented by the Crown opposing an Intensive Correction Order. 106In the written submissions for the applicant it was contended that the sentencing judge erroneously elevated the objective seriousness of each of the offences following the applicant's evidence and that this was related to his Honour's findings, adverse to the applicant, in relation to Count 4 to which reference has been made above. 107I do not consider that there is any substance to this ground of appeal. 108As the Crown correctly observed, a sentencing court is not bound to accept that the assessment of suitability contained in an assessment report in relation to the making of an Intensive Correction Order. His Honour explained his decision to impose a full-time custodial order when he said: "... Mr Peluso submitted that it would be an appropriate exercise of my sentencing discretion to impose a custodial sentence to be served by way of an Intensive Correction Order rather than full-time custody. However, I am unable to agree with that submission. In my view, taking into account the objective seriousness of these offences and the need for general deterrence the only appropriate sentence is full-time custody. I have come to that conclusion, taking into account the subjective case of the offender including her lengthy history of mental health problems." (Remarks on Sentence at p 25) 109Whilst the applicant, as the Crown noted, appeared to rely on the submission by the Crown representative at the sentencing hearing that an Intensive Correction Order would not be appellably lenient, a sentencing judge is not bound by any concession made by the Crown in that respect. The reason, of course, is that a sentencing judge retains an overriding obligation to impose a sentence that properly reflects the criminality, taking into account subjective circumstances: R v Paris [2001] NSWCCA 83 at [28]. In that case, Simpson J, with whom Ipp AJA and Wood CJ at CL agreed, observed: "As I have said, I infer that nothing specific was said by the Crown about alternative penalties and the matter was left to his Honour. Had it been the Crown's position that his Honour should at least have considered alternative penalties, in my view it would have been preferable that that was expressly drawn to his Honour's attention. Of course, a sentencing Judge is not bound by any concession made by the Crown. He or she retains an overriding obligation to impose a sentence that properly reflects the criminality, taking into account subjective circumstances. Nor is this court bound by such a concession but where a party, whether Crown or offender, in a criminal case makes a concession that is accepted by a judge, it is difficult for the subsequent representative of that party to resile from that concession on appeal. The Crown does not here attempt to take that course, acknowledging that it ought not now argue for a sentence of full-time custody. It does not accept that it is precluded from arguing for a lesser custodial penalty." 110The sentencing judge made it plain that his assessment of the seriousness of the offence overall did not accord with the Crown's submission as to an Intensive Correction Order. His Honour stated: "I should record that the Crown did not submit that full-time custodial sentences should be imposed. The Crown submitted that the imposition of Intensive Correction Orders would not be an erroneous exercise of my sentencing discretion. I find that concession by the Crown to be wholly unjustifiable in all the circumstances of this case." (Remarks on Sentence at pp 25-26) 111I do not consider there is any substance to the submission made on behalf of the applicant that his Honour increased the objective seriousness of each of the offences by reason of the seriousness of the offending involved in Count 4. His Honour clearly gave careful consideration to the relevant objective and subjective circumstances of the offending in respect of each count. 112The Crown observed, at [36] of its written submissions, that the sentencing judge's finding that the offences fell at the upper range of objective seriousness was confined to the misconduct in public office offences. He did not make any particular finding of objective seriousness in relation to the knowingly giving false evidence offences. 113I accept the Crown's further submission that the sentence imposed in relation to Count 3 did not reflect his Honour's findings in respect of the misconduct in public office offences. The sentence imposed in respect of Count 3 was a fixed term of 7 months' imprisonment and the effective penalty for the offending was only 1 month imprisonment as the sentence in relation to Count 4 was to commence one month after the commencement of the sentence in relation to Count 3. 114The sentencing judge was entitled to make a finding that the applicant had not been truthful in the sentencing proceedings and that that supported the finding that she was not genuinely remorseful for the serious criminal conduct by her. Ground 1, in my opinion, has not been established and it should be dismissed.

Ground 2 - His Honour erred in failing to take into account the likelihood that the applicant would serve her sentence in protective custody 115I do not consider that there is any sound basis for this ground of appeal. 116The submissions in support of it were brief. It was observed in the written submissions for the applicant that the issue of serving a custodial sentence in New South Wales in protective custody was not considered by his Honour. The submission was that this was a particularly significant factor given the applicant's former occupation and constituted an error of law. Notice was given that fresh evidence would be sought to be adduced regarding the conditions of her custody. 117As the Crown observed, there was no evidence led from the applicant during the sentence hearing about the likely custodial circumstances to which she would be subjected. No submissions were made on her behalf in that regard. Those factors explain why his Honour did not refer to the issue in his remarks. 118Protective custody, if to be taken into account in mitigation, is required to be supported by evidence of the likely conditions of imprisonment and that they will be more onerous: RWB v R (2010) 202 A Crim R 209 at [192]-[195]; R v LP [2010] NSWCCA 154 at [21]. 119According to the Crown's submissions, inquiries have established that the applicant is serving her sentence as a Specialist Management Area Placement (SMAP) at a correction centre and that such inmates are at the lower level of protection available to inmates, a matter referred to in R v Way (2004) 60 NSWLR 168 at [179]. 120I do not consider that in the circumstances there is a basis for the grant of leave to adduce fresh evidence and that, accordingly, leave to do so should be refused. 121I do not consider that any error has been established as asserted in relation to Ground 2. 122Accordingly, Ground 2 should be dismissed.

Ground 3 - His Honour erred in failing to properly take into account the applicant's mental health issues 123There was a substantial body of material on the applicant's mental health issues before the sentencing judge, both by way of oral evidence and evidence in report form as noted above. His Honour considered and expressly referred to the extensive psychiatric evidence in his Remarks on Sentence at pp 13-15. 124I have earlier set out certain of the evidence provided by Dr Rastogi in his report. I do not consider that the evidence of the psychiatrist as such warrants any qualification. His Honour extended some leniency in sentencing the applicant having regard to the fact, as his Honour noted, that the applicant had, for some time, and did at the relevant time, suffer from significant mental health issues. His Honour also accepted, "... to a certain extent those mental health issues contributed to the commission of these offences": Remarks on Sentence at p 22. 125In the written submissions for the applicant the diagnoses of both Dr Rastogi and Ms Brigida were referred to: at [39] and [40]. In addition, reliance was placed upon the Probation and Parole Service pre-sentence report dated 24 July 2012 (Exhibit C). The latter report referred to the applicant's complicated developmental history and unresolved psychological issues and maladaptive coping behaviour which contributed to her offending. An important factor in the present case however is, as the sentencing judge determined, that the applicant had full knowledge and appreciation of what she was doing and that what she was doing in relation to each of the offences was wrong. In this respect, the sentencing judge made a finding in the following terms: "[d]espite her mental health problems [the applicant] was acting with deception and planning, attempting to cover up her criminal conduct and false intelligence reports. I am satisfied that as a serving police officer she was fully aware of the seriousness of the criminality of her conduct." (Remarks on Sentence at p 23) 126His Honour referred to the decision in R v Wright (1997) 93 A Crim R 48 and then stated that, particularly in relation to the misconduct in public office offences, the applicant acted with full knowledge of what she was doing and with full knowledge of the gravity of her actions. His Honour further stated that he was satisfied that when the applicant committed those offences she had a full understanding of the authority and requirements of the law. Accordingly, those matters, his Honour noted, affected the extent to which the mental health disorders and the history of mental health problems could be given weight in the sentencing exercise. 127His Honour further noted that general deterrence was a factor that he had to give effect to in sentencing for the offences. His Honour, as noted above, found that the misconduct in public office offences fell within the "upper range" of objective seriousness. It is plain that his Honour in making such findings was well aware of the evidence of Dr Rastogi and Ms Brigida. Indeed, his Honour made a finding of special circumstances by reason of the applicant's mental health history and her need for continuing treatment as well as the fact that her time in custody would be more burdensome than for other offenders without such a history of health issues. 128Contrary to the submissions on behalf of the applicant, I do not consider that the sentencing judge erred in any way by understating the causal effect or impact of the applicant's mental health issues in the commission of the offences. I do not consider there is any substance to the submission made on the applicant's behalf that his Honour erred in placing significant weight on the issue of general deterrence. 129It need hardly be emphasised that police officers are subject to important responsibilities having regard in particular to the position of trust that they occupy. In addition, the importance of maintaining confidentiality of police information is paramount in the effective pursuit of investigative activities and thus the restrictions upon unauthorised persons having access to information including the database information relevant to the present case. 130Accordingly, I have concluded that there is no substance to Ground 3 and it should be dismissed. 131On the basis of the conclusions I have expressed, and for the reasons given, I am of the opinion that leave to appeal should be granted, but the appeal should be 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: 03 March 2014

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Cases Cited (5)

Cited By (4)