R v Ablitt

Director of Public Prosecutions (Queensland) for the respondent

[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Atkinson J, with which I agree.

[2] The applicant claimed a sense of grievance at being given a sentence more severe than that visited on the principal offender Burkett. The sentencing Judge expressly disavowed any objective of parity between the sentence to be imposed upon the applicant as accessory, and that imposed on Burkett as principal offender. That was a correct approach.

[3] The gravity of the offence of being an accessory is not necessarily comparable with that of a principal offender. Here, for example, the spontaneity of Burkett's assault may be contrasted with the studied deception of the applicant's relevant conduct. Burkett's assault was obviously serious, but on one view the applicant's deceptions even more seriously undermined the integrity of the policing process and perceptions of it.

[4] The actions of an accessory may have extremely grave consequences, even transcending delay or difficulty in the detection and prosecution of the principal offender. For example, it may even be the case that the wrong person ends up being charged with the principal offence.

[5] This Judge was right to assess penalty in the respective cases largely independently of each other, by reference to the gravity of the particular offending: the acts done, their consequences, and the range of other relevant circumstances according to the legislation and case law.

[7] MUIR JA: I agree with the reasons of de Jersey CJ and Atkinson J and with the order proposed by Atkinson J.

[8] ATKINSON J: The applicant was convicted on his own plea of guilty on one count of accessory after the fact to assault occasioning bodily harm. He was sentenced in the District Court in Beenleigh on 28 November 2008 to 15 months imprisonment suspended after five months for a period of two years. He has sought leave to appeal against that sentence.

[9] The full description of the count to which he pleaded guilty was that on the 5th day of April 2004 at Loganholme in the State of Queensland, Justin Anthony Burkett unlawfully assaulted Dulcie Isobel Birt and did her bodily harm; and the applicant, Craig Stuart Ablitt, on that date assisted Justin Anthony Burkett, who to his knowledge was guilty of the crime, to enable him to escape punishment.

[10] The circumstances in which this offence was committed were that on 5 April 2004 at about 1.45pm Constable Justin Burkett and another constable arrested a 25 year old woman, Dulcie Birt, on shoplifting offences. The other constable was undertaking her first shift as a police officer and was under Constable Burkett's supervision. Ms Birt was transported to the Loganholme Police Station and placed in one of the two holding cells there. The applicant who was a Senior Constable of police was the shift supervisor. As shift supervisor he was the senior police officer on duty in the police station. On that day he was working the 2.00pm to 10.00pm shift.

[11] In accordance with the duties required of him he put a video cassette into the video recorder to record the cell in which Ms Birt was placed and commenced recording. As shift supervisor it was his duty to ensure the video surveillance camera was operating, as it was on that day, and that it continued to operate until the cell was vacated by the prisoner. It was also his duty to monitor the surveillance camera at all times while the cell was occupied. As shift supervisor he was situated in an area adjacent to the two holding cells. The area had a console containing all the equipment for the monitoring of the cameras, the video recording of the cells, the intercom equipment and such-like for the front door of the police station. That equipment and the monitoring of it was his responsibility.

[12] Ms Birt refused to sign the watch house book and had a verbal altercation with Constable Burkett. This occurred at about 4.16pm. Constable Burkett then assaulted her by grabbing her on the back of the neck by the hair. He took her up the hallway and pushed her face first into the holding cell. She landed up against the wall. Burkett slammed the door of the cell and said words to the effect of "If you think I've just started you've got another fucking thing coming, slut." The door bounced open because of the force with which it had been shut and Ms Birt kicked the door with her right foot saying "Well I've just started too, you cunt."

[13] This caused Burkett to come back into the cell, rush at Birt, grab her around the throat and pin her up against the cell wall. Burkett went to punch her in the face with his right clenched fist but stopped about half a centimetre from her face. That part of the assault was all captured on video tape. However, the applicant, who had control over the video recording, intentionally stopped the recording at this point. Birt then punched out at Burkett as she thought she was going to be punched. It appears that if the punch did connect it was fairly glancing. Burkett then punched Birt seven or eight times in her face and under her ribs. She buckled and curled up crying in the seat in the corner. None of this serious assault was captured on video tape as the applicant had deliberately turned the video recording off as soon as Constable Burkett went to punch Ms Birt in the face with his fist.

[14] At this time Burkett's assistant was in the day room sorting through property when she heard Ms Birt screaming and yelling. She then heard further screaming and yelling from Ms Birt and she went into the cell and saw the final stages of the assault by Burkett on Ms Birt. By that time another police officer, Castley, who was in a relationship with Burkett had gone into the cell. Burkett then charged Birt with assaulting him.

[15] After the assault on Ms Birt, she was taken to the Beenleigh Watch House where she informed a friend by telephone that she had been assaulted. She was released from custody on the next day at about 2.00pm. Her friend, who picked her up when she was released, noticed bruising, markings to her face, and that she was holding her ribs. Ms Birt attended at a doctor's practice on the following day and he noted injuries consistent with the description of the assault by Burkett.

[16] Burkett prepared a brief of evidence for the charge of assault by Ms Birt on him which included signed statements from Burkett and Castley and an unsigned statement from another police officer who is a flatmate of Burkett's. Burkett claimed falsely that he had been kicked by Ms Birt in the shin. Castley claimed not to have seen any of the incident. No mention was made by Burkett of his assault on Ms Birt nor that there was a video tape of any of the incident.

[17] At the summary hearing of the assault charge against Ms Birt on 3 December 2004, the police officers Burkett, Castley and Burkett's flatmate gave evidence. Burkett lied in his evidence. In particular he did not mention that he had assaulted Ms Birt and he denied there was a video recording of the incident. The police prosecutor was not aware that these cells had video surveillance until hearing cross-examination of Burkett.

[18] When counsel appearing for Ms Birt informed the police prosecutor of the statement he had from a medical practitioner who had examined Ms Birt two days after the incident the police prosecutor asked Burkett for the watch house book so that he could examine the photo of Ms Birt to see if she had any injuries. The watch house photo of Ms Birt showed a visible cut to her forehead. The Magistrate became concerned about the evidence being led and adjourned the hearing until 16 December 2004 indicating that he wanted to hear evidence from the constable who had been assisting Burkett and the applicant, Senior Constable Ablitt.

[19] Burkett then sent emails to both the constable who had been assisting him on her first day as a police officer and the applicant asking them to lie and in particular not to mention the existence of the video tape. The new police officer quite properly referred the matter to her superiors and it was investigated by the CMC. Burkett was subsequently charged with one count of assault occasionally bodily harm of Dulcie Birt, two counts of attempting to pervert the course of justice and four counts of perjury.

[20] The applicant's behaviour in turning off the video tape recording was a serious breach of his duties as a police officer. Part of his duties as the shift supervisor was to ensure the safe storage of video tapes of the cells. These tapes are labelled, their details recorded in a register and they are stored in a specific place for archiving and recycling if not needed for investigation or court purposes. If a tape is so required, it should be lodged as an exhibit in the property book. In breach of these duties, the applicant instead gave the video tape which recorded part of what had occurred in the cell to Constable Burkett at about 7.05pm on the day of the assault after Birt had been taken from the Loganholme Police Station. He did so knowing that the video tape recorded criminal activity by Burkett and that by doing so he would enable Burkett to escape punishment for his assault occasioning bodily harm.

[21] Burkett pleaded guilty to the offences with which he was charged and was sentenced to three years imprisonment on all of the counts other than that of assault occasioning bodily harm for which he was sentenced to six months imprisonment. His sentence was suspended after nine months to recognise all of the mitigating factors including the extra difficulty he would face in prison.

[22] The applicant's crime in assisting Burkett to escape punishment for the assault occasioning bodily harm was a grave abuse of the trust reposed by the community in the police service. While Burkett may have initially been acting in the heat of the moment the applicant had no such excuse. He deliberately prevented evidence from being retained, failed in his duty of care to the person arrested and failed to ensure what evidence there was on the video tape of what had happened was made available to investigators or the court. It was only because Burkett retained the video tape in his drawer that it was eventually retrieved. The applicant Ablitt was the senior officer on duty at the police station and his actions on that day show a gross dereliction of duty.

[23] Such behaviour warrants severe and condign punishment in particular to deter others in a position of power or trust who may be tempted to commit similar criminal acts and to publicly denounce the behaviour in which the applicant was involved. Pincus JA observed in R v Smith & A-G of Qld [2000] QCA 390 at 10 that:

"The cohesion of our society depends in substantial part on public confidence in the honesty of those who administer justice. Police have extensive powers. Their activities can ruin reputations, can put citizens in gaol, or can save them from deserved gaol."

[24] Also relevant to the sentence which was imposed are the personal circumstances of the applicant. At the time of the offence he was a 47 year old man who had been until the date on which he pleaded guilty to these offences a serving police officer. He resigned on the morning that his trial was due for hearing. He had no criminal record and otherwise an exemplary career as a police officer. The detection of his offending paid a high personal toll on the applicant. It destroyed his career and caused considerable distress to his family and friends.

[25] All of these matters were taken into account by the learned sentencing judge. On appeal, it was argued on behalf of the applicant that the sentence imposed on him could give rise to a justifiable sense of grievance when compared to the sentence imposed on Burkett. The principle of parity however has little utility in a case such as this. As Sangster J of the Supreme Court of South Australia observed of the offence of being an accessory after the fact in R v Mills (1977) 16 SASR 581 at 586:

"At first sight there may seem to be some basis for thinking that the categorization of the acts of the accessory depends upon the particular felony to which it relates and to the circumstances of the commission of that felony by the principal felon. On reflection, however, I am sure that such thinking is in conflict with the plain meaning of the words of s. 268 and out of step with fundamental principles of sentencing. The offence of being an accessory after the fact is, primarily, that of assisting the felon who has already committed the principal felony. An ordinary example would be to shelter or harbour a felon to enable him to avoid apprehension or to conceal the evidence of the principal felony. In most examples that come readily to mind the accessory would be most unlikely to know the whole of the circumstances of the principal felony. The gravamen of the accessory's crime is to stand between another felon and the law. To judge an accessory by reference to the nature and circumstances of the principal felony would in most cases involve punishing the accessory - or extending leniency to him - according to the seriousness or otherwise of the criminal conduct of another person for whose conduct he was not responsible and of the details of which he was unaware. In any case the Legislature has not linked the punishment for the accessory with the nature of the principal felony, but has provided the one maximum sentence for being an accessory after the fact to any felony. In my opinion, the conduct of the accessory alone is in question."

[26] True it is that the principal offender, Burkett, was sentenced to three years imprisonment suspended after nine months on all of the counts apart from the offence of assault occasioning bodily harm for which he was sentenced to six months and the applicant was sentenced to 15 months imprisonment suspended after five months for being an accessory after the fact to that assault.

[27] However, as the most senior officer on duty, the applicant was Burkett's superior officer and responsible for the well being of prisoners in police custody in that police station. While the assault by Burkett might have been a response to a difficult and challenging situation which developed quickly, the applicant acted deliberately to conceal criminal behaviour by another police officer. By assisting Burkett to escape detection for the offence, he made possible the circumstances in which Burkett committed the further offences. His dereliction of duty, if it went undetected, had the capacity to undermine public confidence in the integrity of the police service and the administration of justice.

[28] This was a very serious example of the crime of being an accessory after the fact. The applicant has not shown any error in the sentence imposed and the application should therefore be refused.