Independent Commission Against Corruption v Karkowski [2012] NSWLC 6 | Case summary

Judgment 1The offender appears before the Court to be sentenced in relation to 5 counts of corruptly receiving a benefit and 2 counts of fraud. The charges are brought pursuant to section 249B(1)(a)(i) and section 192E(1)(b) of the Crimes Act 1900. Four of the counts of corruptly receiving a benefit are to be the subject of a sentence. One count has been placed on a Form 1 under section 32 of the Criminal Procedure Act 1986. The charges arise out of an investigation conducted by and a hearing before the Independent Commission Against Corruption. 2The maximum penalty for an offence against section 249B(1)(a)(i) is 7 years imprisonment when dealt with on indictment. The maximum penalty for an offence contrary to section 192E(1)(b) is 10 years imprisonment. The prosecution makes no election to proceed on indictment. 3When prosecuted to finality within the Local Court an offence of fraud is a Table 1 offence within the Criminal Procedure Act 1986 attracting a jurisdictional maximum penalty of 2 years imprisonment. The maximum jurisdictional penalty for the offence of corruptly receiving a benefit, inducement or reward depends on the value of the benefit or reward obtained. Where the benefit or reward exceeds $5,000 the offence falls within Table 1 of the Act. Where the benefit or reward is less than this figure the offence is classified as a Table 2 offence. In such instance the maximum jurisdictional penalty is 12 months imprisonment. Based on the facts tendered by the prosecution each of these charges fall within the ambit of Table 2. 4Having outlined the legislative provisions affecting the determination of these proceedings I formally note that whilst the maximum jurisdiction of the Local Court on sentence is constrained to a defined jurisdictional limit the objective seriousness of an offence is nonetheless to be determined by reference to the legislative maximum penalty not the jurisdictional constraint. So much is made clear in R v Doan (2000) 50 NSWLR 115. 5As the Court said in Markarian v The Queen (2005) 215 ALR 213 at 222: ... careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time and thirdly because in that regard they do provide, taken and balanced with all other relevant factors; a yardstick. 6Against these heads of consideration it cannot be said that the matters before the Court in these proceedings represent the worst possible case. The election by the DPP to choose the Local Court as the jurisdiction in which to bring these matters to finality rather than proceed on indictment is a concession by the Crown that the objective seriousness of the charges do not represent the worst category of offending and do not warrant an outcome that exceeds either separately or by way of accumulation, the jurisdiction of this Court. The Court agrees that this is a proper approach in this instance. In my view the individual and collective acts of offending place the objective seriousness of these matters towards the lower end of the middle range category of offending. Such a view does not however lead to a conclusion that the appropriate sentence should not be one of condign punishment.

Subjective factors 18The offender is aged 39 years old. He has no prior convictions. He is currently married and has two children. It is a trite observation to make that he was dismissed from his position with Willoughby Council following the disclosure of his criminal conduct however he has managed to secure further employment. The Court has been told his current employer is aware of these proceedings. Prior to his employment with Willoughby Council the offender had a period of employment with other Local Government bodies. 19The offender gave evidence under oath before the Court. He affirmed the accuracy of the prosecution facts and expressed remorse in relation to his conduct. He says, unsurprisingly, that his behaviour has had an adverse impact on his relationship with his wife and that this relationship may not last. He informed the Court that media attention had led to adverse consequences for his two children at school where other pupils had taunted them. 20The offender seeks to apportion part of the responsibility for his conduct on a lack of proper systems within Council. I will return to this self-serving sophistry later. 21The prosecution took issue with a number of the submissions made on behalf of the offender. Mr Stainer for the DPP also tendered the decision of the District Court in R v Fryar (unreported, Charteris DCJ, 12 March 2010, 2009/7836) on the approach taken in that jurisdiction. The circumstances in that case are similar to the matter before me. It is conceded however they are more serious. Nevertheless the views expressed by the District Court in that matter accord with the view of this Court. 22For reasons to do with section 3A of the Crimes (Sentencing Procedure) Act 1999 in relation to the need for denunciation, general and particular deterrence it is pertinent to repeat the observations of the Court of Criminal Appeal in Retsos v R [2006] NSWCCA 85 at [31]: The corrupt conduct of a public official is not a trifling offence. Any offence of or ancillary to corrupt conduct on the part of any public official should be denounced plainly and punished condignly. 23These guiding principles need to be considered in the context of the submissions by the offender's counsel to the effect that the offences are towards the lower end of the scale of objective seriousness. I agree that this is the case with the fraud offences. I do not accept the proposition that the corruption matters are minor in nature. 24The fact that there is a two tiered penalty regime depending on the monetary gain from the corrupt conduct is relevant on the question of penalty, not as to the intrinsic nature of corruption itself. To appreciate why this is so the nature and extent of the offender's offending needs to be construed within its proper environment. 25The offender was, at the time of the offences, a Building Inspector employed by Willoughby Council. As a member of staff within the Council he was, as was conceded in the body of the statement of facts, a decision maker and an employee bound by the Council's Code of Conduct. The Code of Conduct of Willoughby Council was adopted in 1994, updated in 2005, 2008 and, importantly so far as the offender is concerned, in February 2009. 26I make these historical observations at this point because it is important to rebut the offender's attempt to lay partial responsibility for his offending on the internal procedures of Council. Whilst Chapter 7 of the ICAC findings seeks to qualify the environment in which council officers found themselves as lacking in coherence and direction in my view such findings are exceedingly generous. I reject the offender's attempts to mitigate his conduct by reference to these findings. They are not binding on this Court and do not accord with the concept of personal accountability to behave ethically irrespective of a capacity on the part of an employer to conduct programmes of education on ethical behaviour or develop effective internal controls and oversights. Whether Council employed him or not it is disingenuous to assert that the offender does not know the difference between right and wrong. 27Episodic corruption within the wider community and within Local Councils is hardly a novelty. In recent years there have been a number of examples of such criminal behaviour. Many have attracted extensive attention by the media to the extent that the nature and unacceptability of such conduct and its consequences has frequently been published for the information of the wider community. 28The nature of the offender's conduct was such that he had to know the intrinsically corrupt nature of it. What else do the words "I can do this, I work for the council, I can break the law" in the penultimate paragraph of page 9 of the facts or "you made me a monster I never used to go to brothels. Now I go to them fuckin weekly" and in response to his audience's statement "and someone else pays for them all the time - yeah that's right I don't think I've ever paid" in the last paragraph on page 10 of the agreed facts mean? They mean the offender knew with absolute certainty what he was doing but proceeded nonetheless. 29On any objective assessment the offender was under no illusion that his obligations lay to his employer and the community and not to himself. 30Part 2 of the Code of Conduct Staff Edition sets out in clear and unequivocal fashion what was expected of him. Part 3 highlights and expands upon those expectations in a practical fashion and Part 5 tellingly describes the circumstances relating to Gifts and Benefits that differentiate between the token and the unacceptable. As indicated earlier, the Code of conduct had been extant since 1994 and regularly updated. The proper conclusion an independent observer would make of the offender's conduct is that it was patently and deliberately undertaken in defiance of the clear rules of engagement between the offender and the wider community with disregard for the trust reposed in him by his employer. 31The fact that the monetary value put on the acts of corruption by the prosecution is relatively small does not trivialise or mitigate the fundamental nature of corruption. As indicated earlier, the quantum of the benefit goes to the question of the maximum jurisdictional legislative penalty. It does not mitigate the essential nature of corruption as a blight on the community. 32The offender willingly and knowingly engaged in conduct that enabled illegal activity to continue, connived in undertaking work on behalf of people that he believed would effectively circumvent due process, secretly compromised the privacy of individual residents by disclosing their details to a third party and perpetuated the belief in the minds of others involved in the range of conduct disclosed within the facts that those who work within Local Government, the third tier of government in this State, are amenable to manipulation for illicit purposes. 33His conduct strikes at the very heart of public confidence in proper and transparent process. It creates or reinforces the public perspective that the operations and decision-making exercises of Councils and thus government in general may not be conducted in an entirely honest and professional manner. It does not take too much thought to understand that at the level of local government there will be some members of a local community who object to a proposal only to find that their objections do not carry the day. They may conclude that what was in reality an honest decision is tinged with corruption because they are aware that in the past people, such as this offender and others, have conducted themselves in a corrupt manner to influence the outcome of applications to Councils. Such are the unfortunate consequences of corruption. The innocent become tainted by the criminality of the corrupt. Sadly the perception reinforced by the offender's conduct is likely to be enduring. 34As stated earlier the objective seriousness of corruption is not to be determined solely on the basis of a mathematical correlation between the monetary values of the benefit flowing to the offender. That is only part of the consideration. It is not beyond contemplation that depending on the circumstances, a corrupt public official may sell their corruption cheaply or a corrupting influence may be overly generous in the nature of the temptation. What is important is that neither the Court nor the community lose sight of the fact that all corruption has to start somewhere. What flows from it may aggravate the initial conduct but the mathematical quantification of a financial advantage or benefit does not detract from the essence of the egregious nature of the original decision to enter into corrupt conduct. 35Viewed from the other end of the spectrum, namely those who seek to encourage corrupt conduct, the principled approach taken by Courts is comparable to that identified as appropriate for those who engage in corruption as the recipient or beneficiary. Although the observations are generally made in respect of the bribing of police officers they remain apposite to the factual circumstances before me. 36In R v O'Mally [2005] NSWCCA 166 at [15]-[16] the Court cited the comments in R v Nomchong (unreported, NSWCCA, 10 April 1997) with approval. In that matter the Court said: The police are in a position of authority and trust in the community and the public depends on them to uphold the rule of law. The crime of bribery by a police officer is one that strikes at the very heart of the justice system. 37In R v Pangallo (1991) 56 A Crim R 441 at 443 the Court said: In my view the crime of bribery is always to be regarded as one which strikes at the very heart of the justice system and it must be severely punished whenever it is detected. 38And in R v Duong (1999) 109 A Crim R 60 at [27] Wood CJ at CL said: The offence of bribery or offering a bribe to police in the course of the execution of their duties is a most serious offence.. Save in the most exceptional circumstances it will call for a significant term of imprisonment to be imposed... 39Substitute "officer of local government for police officer and view such conduct from the perspective of sections 439-440 and the Code of Conduct set out in Schedule 6A of the Local Government Act 1993 and the community will readily understand that they are entitled to expect the highest standards of those employed on their behalf. 40Turning to the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 it is clear that general and particular deterrence are of paramount importance in dealing with offences of this nature. The overriding need for emphasis on general deterrence can result, as it does in this case, in lessening the weight that might otherwise be given to prior good character. As was noted in R v Kennedy [2000] NSWCCA 527, less weight may be attributed where the prior good character of the offender has enabled the offender to gain a position where the particular offence can be committed. 41Having taken the foregoing into account and weighing the balance those factors identified in section 21(3) of the Act that mitigate penalty, such as lack of prior antecedents, accepted contrition and remorse and the utilitarian value of the plea I come to the view in relation to the corruption offences that, despite the admonition set out in section 5 of the Act, the offender's conduct warrants the imposition of sentences of imprisonment. 42After taking the Form 1 matter into account as aggravating the charges upon which the offender is to be sentenced and following application of the discount of 15% the offender is convicted on each of the corruption offences and sentenced to imprisonment for 6 months. Given the interrelationship between each act of corruption such sentences and the need to have regard to the principle of totality the sentences are to be served concurrently. 43Having determined the sentences in each of the corruption matters it remains to decide the manner in which the sentences are to be served. In determining this aspect I have taken a number of factors into account. Suspending execution of the sentence is inconsistent with achieving general deterrence. So much is made made clear in R v Taylor [2000] NSWCCA 442. On the other side of the balancing exercise the defendant has not been previously imprisoned. He has good prospects of rehabilitation. He is currently in employment. He has two young children to support. His wife is only employed part time and her income could not support the current mortgage repayments and maintain the family during the period of his incarceration. Whilst hardship to family members is not of itself relevant on the issue of special circumstances it is relevant in my view in determining the manner in which a sentence is to be served. 44In addition to the foregoing there is an added consideration that is pertinent on the issue of sentence. During the currency of sentencing submissions the Court sought information from the DPP on the state at which proceedings against those who provided bribes to the defendant had reached. This was done so that any issues relating to parity could be properly taken into account. In response the Solicitor for the DPP informed the Court that there was to be no prosecution brought against any of the persons involved in operating the illegal brothel, nor against the proprietors of the Red Chilli restaurant, nor against David Tasker of the Bennelong Group, nor property developer Sam Koura nor Anthony Debeck. 45The Solicitor for the DPP was unable to tell the Court why that should be the case. There may be good reasons why only the offender has been prosecuted. Whatever they may be the offender is entitled to feel a sense of disenchantment that only he has been the subject of prosecution. 46For the foregoing reasons I have come to the view therefore that, subject to a suitability assessment by Probation and Parole, the appropriate manner in which the sentences of imprisonment ought be served is by way of Home Detention. The proceedings will be adjourned until 6 September 2012 to enable the assessment to be undertaken. The offender is to report to Probation and Parole forthwith. A copy of the agreed statement of facts and my remarks is to be provided to Probation and Parole to assist in the assessment process. 47Turning to the two counts of fraud, I repeat my remarks that the financial gain to the offender would not of itself warrant condign punishment. The offender's conduct however remains a breach of trust and should be regarded seriously. The offender's prior good record and the utilitarian value of the plea however justify a more lenient outcome, one that addresses general and particular deterrence and reinforces the need for the offender's rehabilitation. For each of those two offences the offender is convicted. He is released under the provisions of section 9 of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for a period of 2 years and to appear before this Court if called upon during that time. Judge Graeme Henson Chief Magistrate Downing Centre Local Court 26 July 2012 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: 15 August 2012

Independent Commission Against Corruption v Karkowski

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