R v Fletcher R v Brookes

District Court of NSW|2010-04-16|Before: Mr J

CITATION: R v Fletcher R v Brookes [2010] NSWDC 208

P R Fletcher: Convicted: Sentenced to a term of imprisonment for 1 year and 6 months. Under s 12 Crimes (Sentencing Procedure) Act 1999 I order that the execution of the sentence be suspended for the term of the sentence. DECISION: I direct that the offender be released from custody on condition that the offender enters into a Good Behaviour Bond for the term of the sentence. A J Brookes: Convicted: Sentenced to a term of imprisonment for 1 year and 6 months. Under s 12 Crimes (Sentencing Procedure) Act 1999 I order that the execution of the sentence be suspended for the term of the sentence. I direct that the offender be released from custody on condition that the offender enters into a Good Behaviour Bond for the term of the sentence.

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

DPP v Aydogan and Gosper [2006] NSWSC 558 The Queen v Edwards (1996) 90 A Crim R 510 R v Bednarz [2000] NSWCCA 53 R v Pangallo (unreported) 03/08/1999 NSWCCA R v Bulliman (unreported) 25/02/1993 NSWCCA R v Nomchong (unreported) 10/04/1997 NSWCCA CASES CITED: R v Irwin [1999] NSWCCA 361 R v Harrigan [2005] NSWCCA 449 R v Nguyen (2004) 149 ACR 343 R v Chapman (unreported) 21/05/1998 NSWCCA Fahs v R [2007] NSWCCA 26 Douar v The Queen (2005) 159 A Crim R 154 Dinsdale v The Queen (2000) 202 CLR 321 Kutchera v The Queen [2007] NSWCCA 121

Regina PARTIES: Peter Robert Fletcher Andrew John Brookes

Mr Davis (Crown) COUNSEL: Mr K Dailly (P Fletcher) Mr J Weir (A Brookes)

1 HIS HONOUR: Peter Robert Fletcher and Andrew John Brookes are for sentence today in relation to two offences contrary to s 317(b) Crimes Act 1900. They are each charged in their own names that they, as individuals, between 26 October 2008 and 7 February 2009 at Wagga Wagga in the State of New South Wales with intent to mislead a judicial tribunal, namely the Local Court in a judicial proceeding, namely criminal proceedings against Matthew Prowse, fabricated false evidence.

2 As I said in the course of submissions, the wording of the charge does follow the legislation but it is a strangely worded piece of legislation. Be that as it may, it carries a maximum penalty of ten years imprisonment, and in due course I will turn to the scheme of the Act in the assessment of the criminality with which I am concerned.

3 In relation to Mr Brookes, there was a statement of agreed facts; in relation to Mr Fletcher there was a statement of facts, largely agreed, with essentially one area in dispute. Bearing in mind there is a great deal of overlap between the two sets of facts I propose to set out the facts from this document on the basis of most of the facts being jointly applicable to both accused but in due course I will differentiate where particular evidence might only be taken into account in relation to a particular accused.

4 On 26 October 2008 some time around 10.30pm, although there is some ambiguity about this in the statements of facts, a number of men, including, as I understand it, Matthew Prowse, Bryce McNickle, Matthew Fitzgerald and/or Justin Wakeling, broke into a property at Mirbelia Drive, Springvale, Wagga Wagga. Some, or all of these men, and the facts do not make this entirely clear, stole a large screen LG television, along with other electrical items. It is certain that Matthew Prowse was one of these people for the purposes of these proceedings. The thieves also stole a green Ford Falcon sedan with New South Wales registration plates WET478 parked in the garage at the premises. In the early hours of the morning of 27 October 2008 a number of police obviously were on duty at Wagga Wagga, including the two offenders, who were Senior Constables of Police, with two other Senior Constables, Senior Constable C1 and Senior Constable L. Again, it is a little unclear from the material tendered, but as I understand it, in strict seniority, Mr Fletcher may have been the most senior officer. But this is a case where seniority is not a significant matter. In fact it is a matter of almost no significance in comparing the conduct of these two offenders with other people that were involved in the commission of the same offence.

5 Senior Constables C1 and L, who were patrolling west of the Wagga Wagga township observed a vehicle in a reserve. They observed a Holden Commodore vehicle with registration plates AYA43F parked on the grass. Checks through the radio system revealed that the vehicle was registered to Matthew Fitzgerald at an address at Mt Austin, a suburb of Wagga Wagga. Constable C1 approached the vehicle and observed inside the vehicle a number of items including two wallets, two mobile phones and a live round of ammunition. At this point another vehicle approached the area, before doing a U-turn and driving away. C1 sought assistance by radio and he and L returned to the reserve entrance.

6 Senior Constables Brookes and Fletcher arrived at the scene in company to assist. A supervisor, Senior Constable Harper, also attended. A search was conducted of the reserve and a vehicle was located on fire. This vehicle was later identified to be the stolen Ford Falcon sedan from Mirbelia Drive, at Springvale in Wagga Wagga. The police claim to have heard a number of gunshots from within the reserve but could not identify from which direction they came. Mr C1 returned to the abandoned vehicle that was registered in the name of Mr Fitzgerald and there removed the mobile phones and wallets. The owners of various items were identified as Matthew Prowse, Matthew Fitzgerald and Bryce McNickle. C1 gave Prowse's mobile phone to Mr Brookes who passed it on to Mr Fletcher. Mr Brookes and Mr Fletcher observed an image of a flat screen television placed in front of a red lounge on a photograph stored in the phone. This image is of some significance to later events.

7 C1 and L, who were partnering one another this night, attended upon an address at Nixon Crescent, Wagga Wagga. This residence at 64 Nixon Crescent was the home of a Mr Glen Prowse, the father of Matthew Prowse. The police arrived at about 3.10am. They could not raise anybody inside the house and it is common ground that in fact the house was empty. The police not unnaturally looked through the window and there saw the flat screen television which they recognised as the one being photographed on Mr Fitzgerald's phone. C1 and L allege, a matter about which Mr Brookes and Mr Fletcher cannot comment, that they then left the Nixon Crescent premises and attended upon other addresses in an attempt to locate Prowse, McNickle and Fitzgerald, who at this point naturally would be suspects, at least in relation to the burnt out car that was found.

8 Mr Brookes and Mr Fletcher attended upon the premises that had been broken into at Springvale and observed signs consistent with a breaking and entering. They contacted the owner's son and ultimately met up with Senior Constable C1 at a place called Dobney Avenue in West Wagga Wagga. Senior Constable L identified the television and lounge in the telephone photograph as being identical to the items that she had observed inside the premises at 64 Nixon Crescent. As a consequence of this, the four officers, that is, Senior Constables C1, L, Brookes and Fletcher, returned as a group at 3.40am to 64 Nixon Crescent. According to Mr Brookes, upon arrival, Senior Constable L drew his attention to the lounge inside the premises. Mr Brookes formed the view that the house contained stolen property. As I understand the evidence that view was well founded. However, according to Mr Brookes, Mr C1 produced a wallet saying, words to the effect, "This is Prowse's wallet, it's got the house key in it." There was then discussion between the four officers as to whether they should use the key to gain entry to the house. According to Mr Brookes, C1 said, "Got the key here, we should use it." In the facts that relate to Mr Fletcher it is pointed out that this was the first occasion that Mr Fletcher was aware that Mr C1 had access to a key that allegedly belonged to Mr Prowse.

9 Mr Brookes has given an account, of course only admissible against him, that the police talked amongst themselves for a couple of minutes and then a decision was made to use the key and go in. Mr Brookes alleges that Mr C1 said, "I'll do a radio call to make out we've heard noises inside." According to the facts I have at 4.57am, that is on my calculation an hour and seventeen minutes after the arrival at Nixon Crescent by the four officers, Mr C1 made a radio call which would have been part of the permanent records of the police in the following terms: "Radio, we're just back off at 64 Nixon Crescent in relation to that other job out at Pommy. We've just turned up and the front door wide open. We were only here sort of half an hour ago, heard noises coming from inside and no one's coming to the door so we've called out and it has all gone quiet in there so we're thinking we might sort of duck in there and have a look."

10 The police officers then conducted a search of the premises and identified a firearm, a television set and a red lounge as seen on Mr Prowse's phone.

11 The facts against Mr Fletcher allege that after they had searched the premises, the four of them agreed upon a fabricated story to cover the unlawful entry and search, to wit that the door had been open and that noises were heard inside. That account in the facts seems to suggest that the radio call made by Mr C1 was in fact after the entry to the house, which is contrary to what is suggested in the facts against Mr Brookes. I must confess that one of the difficulties I have had in this matter is trying to marry up the two separate sets of facts tendered on the same account. Be that as it may, Mr Brookes and Mr Fletcher, having left the premises, returned to Wagga Wagga Police Station. Mr Brookes and Mr Fletcher then returned to 64 Nixon Crescent after a period of time where Senior Constables L and C1 had remained.

12 According to Mr Brookes the fabricated version of events concerning the entry to the house occurred on their return from Wagga Wagga Police Station. I do not think this difference between the two men is of any real significance. Mr C1, however, made a detailed account of the search of the premises and the circumstances of the search in a notebook. I point out in relation to the matter that there is no suggestion in the facts that any of the police, when they were inside the house, sought to leave or unlawfully deposit incriminating evidence so far as any investigations they were conducting in respect of Mr Prowse. Other police arrived at about 6.30am and ultimately Mr Brookes and Mr Fletcher left the premises shortly after 6.30am and Senior Constables C1 and L left shortly afterwards.

13 Ironically the owner of the premises arrived at 9am and signed a consent form to search the premises. Subsequently a detective and several other police officers, including a Constable C2, attended the premises and conducted a comprehensive search and found stolen property, the firearm and a small quantity of cannabis leaf, of no moment in this matter. This search was recorded on video. Constable C2 was given the charge of the investigation and arrested Fitzgerald during the evening of 27 October 2008. He made admissions in relation to the breaking, entering and stealing at Mirbelia Drive, Springvale and nominated Matthew Prowse, Bryce McNickle and Justin Wakeling as his co-offenders. He was subsequently charged.

14 On Tuesday 28 October 2008, in the facts tendered in respect of Mr Brookes, it is stated that Mr C2 spoke to Mr Brookes and asked him to read through the fact sheet prepared by C2 on the material available to him, including, I assume, C1's notebook, to confirm its accuracy. Although Mr Brookes essentially adopted the fact sheet, he was told later that day that there was a problem with the fact sheet in that it does not assert that there were any people sighted in the house, and it does not assert that there were any people seen jumping the back fence. Mr C2 says that Mr C1 in fact amended the fact sheet in relation to the circumstances of the visit of the four police after 3.40am.

15 The facts against Mr Fletcher assert that Mr C1 approached Mr C2 to tell him that the fact sheets prepared by him were incorrect in certain material respects. The facts presented in relation to Mr Fletcher assert that Mr C1 told Mr C2, as I understand it, to change the facts and they had an argument about this. It would appear that Senior Constable L also complained to a person, described as P12 in one set of facts, but who, as I would understand it, is Constable C2 in the other set of facts. They also complained about the fact that they had not been added as an informant and that they had been identified as constables when they were in fact senior constables. Mr C1 then corrected the facts himself. Mr C2, as I understand to be the person referred to in the facts relating to Mr Fletcher, thought this was very suspicious that there were these inconsistencies.

16 During the argument between Senior Constables C1, L and Constable C2, Senior Constable Fletcher entered the room. He was in an angry mood and he said words to Mr C2 to the effect: "You can leave me out of it, don't mention my name anywhere in the facts, don't put me down as an informant, I want nothing to do with the whole matter." He then stormed out and this conduct was seen as somewhat bizarre.

17 In the meantime at 11.05am on 29 October 2008 Justin Wakeling was arrested at his home along with Prowse who was with him. Wakeling was interviewed and made full admissions in regard to the breaking and entering and stealing at 4 Mirbelia Drive, Springvale. He was subsequently charged. Bryce McNickle was arrested on 29 October 2008, he too was interviewed and he made full admissions in regard to the breaking, entering and stealing at that premises, as well as another breaking and entering and stealing matter at a commercial premises, and he too was charged.

18 Subsequently Senior Constables Brookes, Fletcher, C1 and L completed official police statements containing the fabricated version and submitted those statements for inclusion in the brief against Prowse and his co-accused. I can only assume from the paucity of material I have that Mr Prowse did not admit his guilt at this particular point of time. I have had regard, of course, to the additional material tendered to the statements of facts, including the statements prepared by Mr Fletcher and Mr Brookes. I point out in relation to the statement of Mr Fletcher, for example, that as I understand it the bulk of the statement prepared by him was uncontroversial, except for the account he gives at paras 8 and 9 of the statement in relation to the circumstances of the entry to the house.

19 The Crown says in the statements prepared, and it is clear on the basis of the pleas entered, that the four police had colluded to present a consistent version of fabricated events, being that on attending 64 Nixon Crescent at 3.40am on 27 October 2008 police found the front door to be open, whereas in reality they had used a key. Further, that they had heard noises inside these premises which necessitated the need to enter the premises, when in fact there had been no such noises, and that the account given by both police officers that I am concerned with contained no detail of the true circumstances of entry to the premises. It made no reference to the dishonest radio communication by C1 and the knowledge of the four police of the illegal search.

20 There is no evidence available, I must say, that these two prisoners were necessarily physically present when C1 made his radio call but I understand from the facts that they were aware that he was going to make a radio call to the effect that he did.

21 On 29 October 2008 a police informant PI 1, who is another sworn police officer, attended upon the home of Mr Brookes in relation to another matter. Mr Brookes' wife was present with his children. Whilst speaking to Mr Brookes the Prowse matter was raised and Mr Brookes admitted to the officer that they had not entered the house as described in the fact sheet, but had fabricated a story as to the circumstances to justify an otherwise unlawful entry. He admitted to making a false radio call as part of the fabrication. This set in train a series of events that ultimately led to the professional standards command commencing an investigation into the actions of police at 64 Nixon Street and in fact a number of police have been prosecuted, as I have said earlier, including Senior Constables C1 and L, Constable McLeod, who has already been dealt with, in relation to unrelated conduct and a Senior Constable Allen. It must be said that the allegations against Senior Constables C1 and L include the current allegation or a related allegation but other allegations as well.

22 On the morning of 4 February 2009 when this investigation was underway, a Superintendent contacted Senior Constables C1, L, Brookes and Allen requesting them all to attend the Local Area Command office, presumably in Wagga Wagga, where they were to be spoken to. He did not disclose the reason for the meeting, but the trap had been set and a number of telephone calls between various people that I have named were intercepted and from these telephone calls a number of transcripts have been prepared and some of those transcripts were tendered in the current proceedings.

23 At 10.27am on 4 February 2009 a telephone call was intercepted from Mr C1 to Senior Constable L. They discussed matters concerning their involvement in this matter or the investigation that they had become aware of and there was a discussion about whether Mr Brookes had talked in front of other people, including the informant and Mr Brookes' wife.

24 At 7.38pm on 4 February 2009 a phone call was intercepted from Mr Fletcher to Mr C1. A transcript of that conversation is included in the facts. Mr Fletcher at one stage reassures Mr C1 that he should not be worried. Mr C1 expressed a concern about whether Mr Fletcher was in fact the informant. There was reference by Mr Fletcher to the fact that the group were a "pretty close tight knit group" and that nobody was going to compromise that. Mr Fletcher reassured Mr C1 that he should not be concerned.

25 Significantly, in the context of the facts that I have to decide, on 6 February 2009 at 8.51am, a telephone call was intercepted from Mr C1 to Mr Fletcher on Mr Fletcher's mobile phone. There was discussion about one of the informants who has already been named in Mr Brookes' facts, otherwise known as 'Cunky', this is Mr C2, and various things are said which I will discuss at a later time. The Crown would ask the Court to determine that this conversation is "a furtherance of the criminal enterprise", bearing in mind of course that whilst the prisoner, Mr Fletcher, is not charged with a conspiracy to commit an illegal act, it is the Crown case that the crime committed by him and Mr Brookes was part of a "common purpose". The details of the matters the Crown has set out in the facts I have taken into account. As I said I will deal with the issue of the effect of that particular conversation in a moment.

26 Later in mid-February Senior Constables C1, Brookes, L, Fletcher and other police, who were the subject of investigation, attended the Wagga Local Area Command. They were each spoken to by senior detectives. They were made aware of allegations of improper actions at 64 Nixon Crescent in various ways and formally cautioned. Each officer declined to participate in a formal record of interview and they were allowed to leave the building. They were directed not to discuss the matter any further. However, the accused, Mr Brookes, attended the Wagga Wagga Local Area Command on 17 February and there he was arrested, cautioned and conveyed to the police station and was then introduced to the custody manager and was subject to an electronically recorded interview where he made admissions of the agreement to provide a false version in relation to the entry of 64 Nixon Crescent, that the decision was made to enter the premises amongst themselves by the use of the key in Mr Prowse's wallet. He made admissions in relation to the radio call made by C1 in the sense that he admitted that that was designed to justify what had happened. He had made admissions of seeing the stolen property inside the house, although it must be said that Mr Brookes rendered safe a firearm that was found there. He said he was in the house for ten to fifteen minutes at the most and that there was this collusion to fabricate their reasons for being inside the house, their commitment to "stick" to a fabricated version hoping that they could get away with it and that a few of them had looked at each other's statements, although Mr Fletcher denies looking at other statements. I have no evidence that he did, but there was not a "real lot" of discussion amongst them. He made statements in relation to other police that I with which need not concern myself.

27 Mr Fletcher attended the Wagga Wagga Local Area Command on 17 February 2009. He was arrested, cautioned but exercised his right to silence. As I said there is an outstanding issue for me to resolve in relation to the telephone call between Fletcher and C1 on 6 February 2009 but otherwise there is nothing in dispute. In this matter I am mindful of the fact that the making of statements for Local Court proceedings constitutes the fabricating of false evidence.

28 The case I was referred to as authority for this is DPP v Aydogan and Gosper [2006] NSWSC 558. That judgment is of course also important because Justice Latham, in her usual erudite and learned way, has set out a history of the relevant legislation with which I am concerned and the context in which offences such as an offence contrary to s317(b) may be seen or must be seen given the terms of Pt 7 of the Crimes Act. It is a matter also referred to by the Crown in another context relevant to sentencing, that is the character of the offending to which the prisoners have pleaded guilty in the statutory context and of course the judgment of the Chief Judge Justice Blanch when Constable Aydogan eventually appeared before his Honour on appeal, having been convicted on a plea of not guilty, as I understand it, in the Local Court, of assaulting a person and then committing an offence contrary to s317(b) to cover up the assault. That judgment I will refer to shortly.

29 If I could just turn to the respective subjective cases, bearing in mind I must consider matters that are relevant only to each of the offenders separately. The prisoner, Fletcher, gave evidence before me, as did his wife. I have taken that evidence into account in conjunction with other material that expands upon that evidence or supports that evidence. I was impressed with him as a witness and I ultimately have accepted his explanation of the circumstances of the phone call, the subject of some dispute in the facts.

30 Dealing with his background in summary, although it is set out in considerable detail in the psychologist's report prepared by Mr Borenstein and as also set out in the Probation and Parole Service report and in other sources, the prisoner was born on 6 June 1967, he is to turn, I would understand from that, forty-three this year and was forty-one at the time of the commission of this offence. He was born in New Zealand but has lived in Hong Kong and Australia as a child. As I understand it his family eventually settled in the Geelong area. He served in the Royal Australian Air Force for a period of fifteen and a half years and as I understand it performed his service for his country in that occupation without any criticism of his conduct. In fact that must have been the case because ultimately after serving in the RAAF, putting aside other employment that he had for short periods of time, he joined the New South Wales Police Service in the early part of this century and he served as a policeman for six or seven years before he ultimately resigned last year, after he had been charged in relation to the current matters.

31 He is a married man. He has two sons that are now, as I understand it, aged fourteen and nine. He was married in 1993. His wife is an enrolled nurse at the Wagga Wagga Base Hospital. One son, whose name is not for publication and who as I understand it is nine years of age, has been diagnosed with an autistic disorder. He is enrolled in mainstream education but has a number of difficulties, particularly difficulties with his disordered language. It is clear that he has a moderate degree of disability, although he has no other major medical concerns. He requires intensive counselling and supervision at school and because of his autism requires close care and supervision at the home. He has been diagnosed as suffering from a moderate intellectual disability and his family are the beneficiaries of a child disability assistance payment, which is evidenced in material that was tendered before me.

32 One of the matters raised on behalf of the prisoner was the fact that his wife would have great difficulty maintaining her employment at the Wagga Wagga Base Hospital if he was to be gaoled, given the level of care required for the child, and it was essentially submitted to the Court that it was a case that fell within the rubric of exceptional circumstances as has been discussed in a range of cases, particularly The Queen v Edwards (1996) 90 A Crim R 510 and R v Bednarz [2000] NSWCCA 53. I have had regard to these particular judgments, although there are other authorities to which I have been referred.

33 In Bednarz, Justice Simpson in her judgment more closely examined the legal issues and discussed a number of cases, including Edwards. She noted of course the observations of Chief Justice Gleeson in Edwards that 'justice will not be seen to be administered even-handedly' if exceptions are made in cases which are not truly exceptional. I particularly note her summation of the situation at [2] through to [7]. This case is not an exceptional case such as to warrant a non-custodial order solely because of the condition of the child. But the condition of the child, the responsibility of the prisoner for his son and the responsibility of his wife and the circumstances of the son's condition, are in my view relevant matters, along with many other relevant matters, in determining the appropriate outcome in this particular case.

34 In relation to the prisoner's situation, at the time of the commission of the offence he was not suffering from any medical disability. However, within a short period of the making of the statement of 4 November the prisoner, I am satisfied, succumbed to a severe anxiety disorder. I have evidence that he attended upon a doctor in November talking about stresses at work without giving any particulars. He had previously been seen by another doctor in mid November. His sleeping was disturbed and a diagnosis was made of a general anxiety disorder. He was provided with anti-depressants, sleeping tablets and counselling. He in fact for a period of time was unable to work. One medical report dated 6 January 2009 states that because of stresses at work he had not been able to work at that date for "at least six weeks". He was provided with Prozac and treatment continued.

35 This matter is a matter I have taken into account as reflecting upon the considerable amount of misgiving that the prisoner had within a short time of his agreement to fabricate a version as to how the house had been entered and that misgiving is confirmed by the reaction that was noted in the facts prepared in this matter, observed by Constable C2, when the prisoner expressed the view that he did not want any further involvement in relation to the investigation of Mr Prowse and did not want his name attached to it, he did not want to be known as the informant.

36 In respect of the prisoner's current employment, the prisoner has been employed as an occupational health and safety officer for the last six months and it is to his credit that, since losing his employment as a police officer, naturally following upon from this investigation, but before he pleaded guilty in the District Court, he has obtained this employment. He has considerable responsibility in this employment, looking after the welfare of employees working in the building industry a workplace which is obviously one with considerable risk for all involved. He has considerable responsibility. As his employer Mr Sutherland, the company director for Riverina Quick-Form, states, Mr Fletcher has "proven to be an invaluable asset to the company; he has demonstrated a high level of integrity by continually developing strategies to reduce hazards and monitoring the wellbeing of my employees." He has told his employer of this matter and the jeopardy that he potentially faces in relation to this matter.

37 As I mentioned I have a report from Mr Borenstein and I have taken into account the history which accords with the material that has been presented, including the prisoner's evidence and I need not dilate upon it. The important matters that arise from the report are, firstly, the assessment of the prisoner's anxiety at the time of examination, which was reactive to his current circumstances, the absence of any serious psychiatric disorder in his history and his open and honest presentation to the psychologist. The psychologist was of the opinion, although his qualification to express this opinion must be doubted, that the prisoner had symptoms consistent with an adjustment disorder as a result of mixed anxiety and depressed mood disorder. This was a reaction to the events in October 2008 and it seems to me with respect that putting aside all labels of a medical character, the evidence is clear that the prisoner did suffer an anxiety reaction to the circumstances that arose out of his involvement in this matter within a short period of time.

38 It is to be pointed out, as Mr Borenstein points out, that the prisoner having been a policeman for something in the order of seven years and having attended upon fatal motor vehicle accidents, suicides, unlawful killings, acts of violence and the like, had been able to overcome these matters without significant anxiety symptoms and Mr Borenstein thought that the condition of the prisoner in November and December through to January reflected his "inner conflict" as a result of the events giving rise to the current charges. The prisoner at the time of assessment by Mr Borenstein, which I understand to have been somewhere in February or January of this year, was still receiving anti-depressant medication.

39 The prisoner's plans are that he would wish in due course to move to Queensland with his family. His reputation in Wagga has been sullied and the matter has caused considerable embarrassment to him and his wife. Although it is not a significant matter, but common to both prisoners, there has been a degree of public shaming. This matter is one which has received a great deal of attention in Wagga Wagga which is, of course, a very large regional city, but not so large as to provide people such as Mr Brookes and Mr Fletcher anonymity. The prisoner's wife gave impressive evidence about the condition of her child, which I accept. The Crown, properly, in cross-examination pointed out as it went to the issue of exceptional circumstances, that there may be means by which she would maintain her employment at Wagga Base Hospital and still be able to care for her child if the prisoner was not present. However I note, of course, the difficulty she would still have and there was always the possibility, if he was imprisoned, that she might lose her employment. I have already made the point that this of itself is not an exceptional circumstance in the Edwards sense, but I have noted it as one of a number of matters. I accept that the prisoner is a devoted father to his children and I accept that the prisoner's service in the New South Wales Police Force up until his involvement in this matter has not been characterised by any wrongdoing on his part, that he was a conscientious, devoted officer who had worked in a number of stressful situations.

40 If I could just turn now to Mr Brookes' case as it relates to essentially subjective matters and some matters are relevant to the objective facts. Mr Brookes gave evidence through a statement initially, setting out his background. He is a native of Victoria but apparently has lived in the Riverina or the MIA most of his life. He, in fact, attended school at Wagga Wagga and initially on leaving school had a number of employments. He had an apprenticeship as a printing machinist and continued that employment for fourteen years. At a time, I would assume, in his early thirties or very late twenties, he started up a business called Riverina Pot Works. However, this business failed after twelve months and the prisoner and his wife suffered considerable hardship as they had to declare themselves bankrupt. They lost their house and really had to start all over again. The prisoner always had a desire to be a police officer and at the age of thirty-five he applied to join the Police Force and was accepted. I note that the prisoner was born on 10 May 1964, so this would have been in about 1999. The prisoner's police service, as I understand it, has primarily been in Wagga Wagga where he has lived most of his life. He has two daughters who are now adults and I have references from them. He has noted in his written reference for the Court the loss to him of his career and the shame that had been brought upon him. He noted in this report that during the time of what I take to be the investigation of the offence: "We had just seen a victim's car been(sic) burnt and then seen after attending there the premises which had been broken into and the house trashed .. (break in recording of approximately five seconds).. that the prisoner at the time had been conducting a number of break and enters".

41 This assertion by the prisoner is not inconsistent with the facts and it emphasises something that I think is clear from the statements he made to the Probation and Parole Service. That is that the prisoner had allowed his concern for the criminality, to which he had been exposed, and his zeal for his work, to overcome his better judgment, in the early hours of 27 October. I accept, as with Mr Fletcher, this was a very uncharacteristic lapse and I accept that whilst the offence the prisoner committed was committed over a period of time, commencing from the early hours of 27 October, the prisoner had, in effect, locked himself into, as had Mr Fletcher, a false account of the entry to the premises after only a very short time of consideration. Once locked into it the prisoner was compelled to go along with the fabricated story.

42 I note he has received a Commissioner's Certificate of Merit for his "exceptional performance of duty" in the apprehension of an armed prisoner at Wagga Base Hospital on 28 November 2004. There he was responsible for disarming a person with a mental illness who had stabbed a male civilian before proceeding to stab a security guard in the back. It is ironic, but I believe that I sentenced that particular prisoner. I am well aware of the facts of that matter. It was quite an extraordinary situation, and the courage of the police officers at the time, if I remember correctly, was acknowledged in my judgment. The actions of Senior Constable Brookes and other police in approaching an armed prisoner who suffered a mental illness and had caused serious injuries to others, in a quite unprovoked way, has been recognised on that Certificate of Merit and that underlines what is apparent in some of the references, that the prisoner was a man devoted to his duty and was well respected for his application to his policing responsibilities.

43 One of the referees is a paramedic who has had involvement with members of the New South Wales Police Force on a number of occasions, having worked at Wagga as a paramedic for nine years and eight years at Wagga. He notes that the prisoner, on the occasions that he arrived at the scene of an incident and realised that the prisoner was in attendance observed: "I know that we as paramedics are safe to conduct our duties. This is due to the fact that on the occasions that I have worked with Andrew I found him to be reliable, fair and trustworthy in the way he handles these situations. I have never on any occasion felt uneasy or not safe when Andrew was in attendance."

44 In relation to the prisoner's evidence, he gave evidence about his involvement in this matter and particularly evidence about some remarks in the Probation and Parole Service report. In that regard the Probation and Parole Officer came to give evidence and I have made certain findings in relation to the issue of the prisoner's remarks to the Probation and Parole Service which I will reveal shortly.

45 In cross-examination, the prisoner agreed, when examined on this matter by the prosecutor, that in making a fabricated version about the entry to the house he had taken "an enormous step" from the point of illegal entry in doing so.

46 The prisoner has, I point out, some matters on his record as a juvenile but it is not submitted that I should take them into account. I ignore them, they arose when he was fifteen or sixteen years of age.

47 I note the reference of his wife and the references of his family members and people associated with his daughters. He is a devoted family man. He was very proud of his job as a police officer and was a hard worker and a devoted husband and father. He has expressed deep regret to his family for the suffering that has been imposed upon them in a financial sense by his loss of employment. He had resigned from the Police Force in October last year. He is currently working part time as a delivery driver of some description but does not have the certainty of employment that is available to Mr Fletcher. He, like Mr Fletcher, has suffered humiliation within the local community, as I have pointed out, and there is reference in the material available to me that his children have, on occasions, been reminded of the well publicised wrongdoing of the prisoner within the Wagga area. I point out in passing, Mrs Fletcher has been subjected to this as well. Of course this public shaming is not "extra curial punishment", but it is a relevant matter in assessing the appropriate approach to the issues of general deterrence and denunciation. The prisoner has the support of his family, which I accept, and in my view, as with Mr Fletcher, I am very confident that neither of these men will commit offences of this type or any other type in the future, given their experience as police officers and the salutary lesson they have learnt from the current circumstances.

48 In relation to the determination of this matter, I note the submissions of both counsel for the prisoners. It is agreed, as I understand it, between the Crown and defence, that I should accord each prisoner a discount of twenty-five per cent upon the otherwise appropriate sentence to recognise the utilitarian benefit of the pleas of guilty entered by each. They pleaded guilty at the Local Court and their pleas of guilty, of course, have received, as I pointed out, wide publicity within the Wagga area. So far as any specific submissions that were made by counsel are concerned, I propose, without directly addressing them, to deal with those submissions in the course of dealing with the material that has been presented to the Court. The same applies, of course, to the submissions of the Crown which naturally I have taken into account. Some specific submissions I might particularly refer to, as I have already done, others can be taken as having been addressed either expressly or implicitly in my findings.

49 I was assisted by a number of judgments provided to me, relied upon primarily by the Crown but to some extent by counsel for the two accused. Those decisions include the decision of R v Pangallo, an unreported decision of a Crown appeal against inadequacy of sentence in relation to a solicitor bribing a police prosecutor handed down by the Court of Criminal Appeal on 3 August 1999 and the decision of R v Bulliman, another unreported decision of the New South Wales Court of Criminal Appeal of 25 February 1993. This concerned to two breaches of the then s 30 Crimes Act, of providing false testimony on oath, which carried a maximum penalty of five years imprisonment. This was a matter that involved false testimony in civil proceedings. I have also had regard to the decision of R v Hilder NSWCCA 13 May 1993, a common law attempt to pervert the course of justice committed by a sergeant of police to try and prevent a prisoner being arrested: R v Fuller NSWCCA 13 July 1994, was an offence contrary to s 319 Crimes Act 1900, that is an offence of doing an act with intent to pervert the course of justice, which carries a maximum penalty of fourteen years imprisonment. This was an inmate providing false medical certificates to excuse non-attendance at periodic detention. I have had regard to the decision of R v Nomchong NSWCCA, unreported 10 April 1997, again another offence contrary to s 319, of a police detective sergeant of thirty years experience putting pressure upon a junior officer under his supervision not to conduct an investigation properly. Another offence contrary to s 319 occurred in the case of R v Irwin NSWCCA 12 October 1999. I might point out Nomchong was a plea of not guilty. The other matters, with the exception of Hilder as well, were pleas of guilty.

50 In considering this matter, before I turn to the assessment of the criminality, I note the terms of Div 2 of Pt 7 of the Crimes Act, particularly the matters set out at ss 314 to 319. Section 317 sits in the context of a range of offences, including offences of making a false allegation against a person knowing that that person is innocent, carrying a maximum penalty of fourteen years through to an offence contrary to s 319 to which I made earlier reference. The offence of fabricating false evidence is part of the rubric of offences set out in s 317 as being offences of the character of tampering with evidence with intent to mislead a judicial tribunal. In that regard, that is in regard to public justice offences, I note when the Honourable John Dowd in 1988 introduced this legislation, he said: "Offences that damage the administration of justice strike at the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice and to this end it must be protected from attack".

51 It is the case, in the context of the current s 3A Crimes (Sentencing Procedure) Act 1999, I note that matters of general deterrence and denunciation set, out in s 3A already known in sentencing law, have a very special place in sentencing for offences of this type. Strong deterrent sentences in the appropriate case must be imposed and in the appropriate case offenders must be severely punished. There are decisions such as R v Harrigan [2005] NSWCCA 449, where the Court endorsing the judgment of McClellan J in R v Giang and approved the statement that: "In every case the court has been concerned to emphasise the need to impose a sentence which not only punishes the offender but will deter others from similar course of action".

52 I note decisions such as R v Nguyen (2004) 149 ACR 343 where the learned Chief Judge at Common Law said (at [39]): "There is authority in this court to the effect that it is relevant that a person who commits an offence with respect to the administration of justice is a police officer".

53 His Honour went on to cite a judgment of Simpson J in R v Chapman, 21 May 1998, unreported NSWCCA, which set out the reasons for special consideration being given to police as may be relevant to emphasising general deterrence.

54 In R v Nomchong it was held by the Court, for example at p 8, that: "General deterrence must be kept very much in the forefront of the mind of the sentencing judge who sentences for an offence such as this. It is important to deter other police officers inclined to similar conduct".

55 It was expressly and implicitly stated in Nomchong that police officers are to be distinguished from ordinary members of the public, other than judicial officers of course and legal practitioners, who are to be sentenced for public offences. In regard to these police officers, as I said, I have had regard to those judgments which I have earlier cited that deal particularly with police. In Hilder, for example, Wood J, as he then was, noted that the kind of conduct revealed in Hilder, which was certainly more serious than the conduct with which I am concerned with here, "must attract a significant custodial sentence". However he noted: "Of course it is appropriate in any case involving a person holding public office to take into account the loss of reputation and employment and also where appropriate the loss of pension or superannuation benefits".

56 In R v Irwin [1999] NSWCCA 361 at [47], and in Nomchong, it was noted that the rank of the police officer is relevant to the seriousness of the offence. In relation to this context I also note what was said by Abadee J, in R v Bulliman, about false evidence in a different offending rubric, strikes at the whole basis of the administration of judgment and undermines the administration of justice. He said: "Justice inevitably suffers whatever the motive for making a false statement on oath, whatever be the circumstances in which the offence or offences are committed".

57 The statements of principle, cited by the Crown, obviously are relevant to the specific offence of fabricating false evidence and I need not dwell upon that matter any more, beyond saying that the significance of the successful prosecution of police is that the making of false statements, or the "fabricating of false evidence", usually occurs, as it did in this matter, behind closed doors. The conduct in question may be absolutely impenetrable in the adversary system and incapable of exposure.

58 It may be capable of exposure in the inquisitional system conducted by the Police Integrity Commission, but in the day to day workings of the court those who represent accused persons, who are the victims of this conduct really have little chance to expose it. In fact the only reason the conduct that I am concerned with was exposed was because of Mr Brookes' loose language. However, in every case there are degrees of such conduct and as I have said this is reflected by the terms of Pt 7 Div 2 of that Act.

59 Coming back to this case, in the context of those principles and the character of the offending, and having regard to the matters that are in dispute and what conclusions may be reached from the evidence concerning the objective facts, I make the following findings.

60 Firstly, I am satisfied that these two prisoners were led into this affair from the time of the illegal entry by Constable C1. It is true they played an active part in agreeing to fabricate a story but as was pointed out by one of the prisoners to one of the persons that had interviewed him, the prisoners would not have been in the situation they are currently in but for C1's suggestion of using the key and what followed from it. It is to be fairly said that over zealous conduct must be stamped out. But it also may be said in assessing the facts of this matter that the decision ultimately by these two prisoners to go along with what had been initially suggested, and what flowed from that, reflected some aspects of misplaced zeal and some aspects of quite falsely placed solidarity with colleagues doing a difficult job. Although the two prisoners took slightly different approaches to the matter, ultimately the reflection upon their reactions leads me to the conclusion that perhaps greater weight might be given to Mr Fletcher's contrition than Mr Brookes. On the other hand, as I pointed out, there are aspects of Mr Brookes's circumstances which work in his favour more so than Mr Fletcher.

61 Mr Fletcher was concerned from the outset as to the implications of what he had done and I have referred to his anxiety-based illness. He did, however, ultimately allow his better judgment to recoil from what had happened. I accept this to be in effect a result of having been locked into what had been agreed and a misplaced sense of loyalty with his fellow officers. Mr Fletcher, as the facts reveal, was placed in a difficult position. He tried to get out of it, but ultimately lacked the courage to take the steps to bring the misconduct of others to the attention of his superiors.

62 Mr Brookes did not share the same initial misgivings as Mr Fletcher. But ultimately, like Mr Fletcher, he was locked into a situation that was, in my view, created by C1, and in fact Mr C1's leading role in this matter is reflected very much in the telephone intercepts occurring in February. It is to be fairly said that the prisoner went along because he believed Mr Prowse was an undesirable criminal and that the actions that he, Mr Brookes, was concerned with, were really in a just cause. The just cause was the apprehension and conviction of persons who commit serious crimes. The flaw in this reasoning, of course, is obvious to any objective observer. But it may not easily be seen by a policeman in the heat of the moment, whose emotions may be affected such as to sway his better judgment, as occurred in this particular matter, and led to the prisoner with Mr Fletcher, being locked into the situation where he could not extricate himself.

63 I appreciate of course, as I have said earlier, that police in the front line have a very difficult job. Their integrity is tested regularly. Of course, it is to be fairly said that testing of one's integrity is not a reason for succumbing to temptation. I accept as a fact that the conduct of the prisoners continued as part of the common purpose, not just in late October, but through November and through to February. Days after the illegal entry to the premises they prepared false statements. False, however, limited to the illegal entry. I have no evidence that other aspects of their involvement in this investigation involved any falsehoods or wrongdoing. By early February they were in the situation that they had created for themselves. The brief of evidence no doubt had been served on Mr Prowse, or certainly had been compiled and forwarded to his lawyers.

64 This brings into question, of course, the issue as to the significance of the telephone intercepts conducted in early February, but particularly the telephone intercept of the conversation between Mr C1 and Mr Fletcher at 8.51am on 6 February. Mr Fletcher's conversation with Mr C1, and the related by assurance by Mr Fletcher to Mr C2 that the statement that he, Mr Fletcher, had given was accurate, was the matter that the Crown submitted reflected further acts and furtherance of the common purpose. This may be so, but in my view, the assessment of the prisoner's conduct is that what he said and did was firstly, either a commentary upon what had already been agreed, the offence of course having been completed at least by 4 November, or alternatively, a reaction to circumstances that had been created by the investigation which was under way.

65 I raised directly with the learned Crown the issue of whether in fact Mr C2's interview of the accused, Mr Fletcher, and perhaps others, was a direct result of instructions that he had been given by investigators to, in effect, lure out matters that might be the subject of telephone intercepts, or the like. It is now the case - and the Crown has been very fair about this and I compliment the Crown for his prompt response to my query - that in fact, Mr C2's approach to Mr Fletcher questioning aspects of the brief was part of the investigation. I accept, however, Mr Fletcher's evidence in relation to the matter that he did not initiate any attempt to deceive Mr C2, but was more concerned to explain why there were inconsistencies in the accounts. The prisoner was already bound by the statement that he had given and could not resile from it. In the circumstances I cannot see how the prisoner's comments to Mr C2 could be reasonably held to be - if it be required to be proved beyond reasonable doubt - an aggravating factor, being some act in furtherance of the common purpose.

66 The conversation with Mr C1 on 6 February, and other conversations that are recorded, do not give Mr Fletcher a great deal of credit. There are some loose things said by him. But it must be said also that the particular conversation with which I am concerned largely involves Mr C1 recounting various matters to Mr Fletcher and Mr Fletcher responding to Mr C1's version of events. It can be clearly seen from the conversation that I have heard and read that Mr C1 took a leading role in whatever arrangements were sought to be made or whatever suggestions were sought to be made in relation to the issue of protecting the integrity - if I could use that expression - of the fabricated versions.

67 The conversation that I am concerned with, as I said, was initiated by C1. Although the prisoner is providing in many instances assurances to Mr C1, these assurances are merely the sequelae of the criminal conduct already established. As I have said, Mr Fletcher was trapped in a situation beyond his control at this particular point and he was, in my view, certainly part of a common purpose but not actively promoting the common purpose, unlike Mr C1. Certainly the prisoner should have told Mr C2 the truth when he had the opportunity to do so. He should have explained precisely what had happened. If he had done so he would be in a better position than he is now, but in the circumstances much of what occurred in early February, including the responses to Mr C2, were acts done by the prisoner as a reaction to what was happening, rather than as some sort of proactive step to cover his tracks.

68 I note in this regard, although Mr Brookes was not the subject of any particular evidence of this character concerning conduct in early February, when he was interviewed on 17 February, the allegations having been put to him of wrongdoing, he was prepared to give his version of events admitting what had occurred.

69 Both men, in my view, to vary extents, have taken responsibility for their actions. They gave early indications of their intention to plead guilty and they have expressed contrition and taken responsibility for their actions in their evidence before this Court. Mr Fletcher's contrition, as I said earlier, is greater than Mr Brookes's; it is more timely as is reflected in the matter that I have earlier referred to. Mr Brookes told the probation officer, as it was reported, that: "His actions were justified in order to secure the conviction of a person whom he considered to be a serious offender. He denied that he lied in a sense that he merely did not tell the truth. He considered this behaviour justified in the circumstances".

70 Some of this reflects the actual words he used, but on the basis of the evidence given by the prisoner and the evidence given by the probation officer, I could not conclude that the prisoner is not regretful for his involvement in this matter. I understand, in fact, that what the probation officer has interpreted to be a lack of contrition is an expression by the prisoner that he is not sorry for Mr Prowse, although he was a person adversely, to some extent, affected by the prisoner's conduct.

71 So far as not telling the whole truth is concerned, this may have been said by him, but, on reflection, I feel this assertion or representation may have been taken out of context. The Probation Officer, I must say, whilst honest, was not a particularly specific witness and it is difficult to work out precisely what was said, even allowing for what the prisoner himself said to the Probation and Parole Officer.

72 In any event notwithstanding what as said to the Probation and Parole Officer the precise details of which I really cannot identify to a satisfactory level I accept the expression of contrition by the prisoner in this Court.

73 The prisoner, I must say, is primarily concerned about the reputation of the police generally and realises that his conduct has let down his colleagues as well as himself. This, to my mind, reflects upon the fact that initially he did not think through the full implications of his conduct as had Mr Fletcher.

74 There are some other features of the objective facts. Amongst these matters are the following: whilst the false evidence that was fabricated may have been used in the prosecution of Mr Prowse it was not. As I understand the matter in fact after these two prisoners were charged, probably before they pleaded guilty, but it does not matter, Mr Prowse in fact pleaded guilty to the substantial allegations that were brought against him.

75 It is my view further, that the false evidence in question went very much to a collateral issue in the prosecution of Prowse. It was not central, or germane, to proving his guilt in relation to the serious offences that the police were then investigation concerning the destruction of a car and the breaking and entering of private premises. I am satisfied that it is likely that even if the prisoners had not been detected, the prisoners may not have been required to give oral evidence in terms of the false evidence contained within their statements given the collateral character of the material. Although I point out, as I am required to do in accordance with 'De Simoni' principles, that this case does not turn upon the actual giving of the sworn evidence and there may be a degree of speculation in that conclusion.

76 However, whilst I accept that false evidence contained in the statement might have been a matter at the relevant time that might have provided some further pressure for Mr Prowse to have pleaded guilty, it is clear that his pleas of guilty subsequently entered would not have been influenced by the false evidence. The false evidence of course was primarily designed to cover up the illegal behaviour of entering the premises without a warrant. Ironically, a warrant in my view, on my understanding of the law, could have been obtained with greater patience. Of course, as I have pointed out in any event, some hours later the owner of the premises permitted the police to conduct the search and allow them to fill their obligations lawfully. I have already pointed out that Mr C1 bears primary responsibility in my view for the illegal entry.

77 I note, of course, that this type of offence under this particular provision is more serious when committed by a police officer. There was a submission made that I should see the offending at the low end of the range. The Crown submitted that it was in the "mid range" to cite the language of the Crimes (Sentencing Procedure) Act in relation to offences with a standard non-parole period.

78 The offence in its terms is serious. The maximum penalty makes that clear. Committed by a police officer is an aggravating factor and general deterrence is a key matter to be considered in sentencing. However, in the context of offences of this type committed by police having regard to the limited information I have, the statistics are almost of no assistance here.

79 Given the roles of the prisoners compared to others, given the significance of the false evidence in the prosecution of the offender Mr Prowse, the fact that the evidence did not in fact falsely implicate the offender in the offences which were the subject then of investigation and had no significance in the proof of his guilt and, in fact, reflected actions to cover up what was ultimately a totally unnecessary illegal search, as well as other matters I pointed out, the culpability of these two offenders is to be seen at a lower level than Mr C1. It is to be seen, in the range of offences committed by police officers, serious as they may be, in the lower range. I do not propose to put a particular precision in that description, nor am I required to. Clearly, it is not the most serious offence of its type but I note the aggravation that might flow from s 21A Crimes (Sentencing Procedure) Act that it was an offence committed, to use the Crown's words "in company".

80 I have given that aspect of the matter dealing with it in the context of my treatment of the objective facts very close consideration. Whilst an offence committed in company with others can be a specific aggravation under s 21A(2), otherwise requiring a greater sentence than might be otherwise imposed, I am of the view in this particular matter in light of the facts this is not the case. In fact the "in company" aspect of the offending explains why these prisoners committed the offence. But for them being in company with C1 and L at the critical time, they would never have been involved in this matter. Rather than being a matter of "aggravation" as such in my view, it serves more to explain the circumstances of the offending.

81 In considering the subjective circumstances of the prisoners I point out that I have had regard to the respective Probation and Parole Service reports. These reports of course cover much the same material as is to be found in the oral evidence and in the case of Mr Fletcher a psychologist's report. Both prisoners are not seen to be requiring intensive supervision on their release from custody should they be sentenced to a term of imprisonment or subject to some other supervisory order. I have taken that into account. I have taken into account the fact that they are not suitable for periodic detention because they cannot be protected in that particular environment. The Probation and Parole Officers do not point however, in their respective reports, to any matters which would suggest that the prisoners are of anti-social inclination, as their backgrounds would suggest. Nor do the reports point to any particular matter that might have the Court have some concern as to the prisoners' capacity to commit offences in the future.

82 It follows from what I have said in relation to this matter that I have had regard to s 3A Crimes (Sentencing Procedure) Act. There are other aspects of the section that are required to be considered although the purposes of sentencing reflect perhaps greater emphasis upon factors that might lead to more severe penalties than lighter penalties. I am required to promote the rehabilitation of the offenders and make them accountable for their actions.

83 There is no harm done to any particular victim. There has been some harm done however to the confidence the community would have in the New South Wales Police Force and I am quite satisfied both prisoners are deeply regretful for that particular consequence of their conduct. I do not believe issues of personal deterrence arise, not only because I do not believe the prisoners will offend in this magnitude again, but their opportunity to commit this type of offence in my view would be non-existent.

84 With regard to s 21A of the Act, I have looked at one aspect of the matter as was argued by the Crown. I do not accept that the offending with which I am concerned could be categorised as "planned" offending. There has been considerable discussion about this expression in s 21A(2)(n). It is to be fairly said that an agreement was reached between the parties and they gave effect to that agreement through their adoption of Mr C1's notebook and their ultimate preparation of statements. Whilst there clearly was, at least in their latter actions, a degree of premeditation, the conduct of the prisoners could not be categorised as falling within the scope of planning that subs (n) contemplates and as it has been identified in particularly recent decisions of the Court of Criminal Appeal, such as Fahs [2007] NSWCCA 26.

85 With regard to s 21A(3), it follows from what I have referred to in the material that there are a number of matters that are mitigating factors. The character of the offence does not lend itself to an assessment of damage or emotional harm or injury but certainly there is none here.

86 More relevantly, however, I am satisfied that the offence was not part of planned or organised criminal activity. I am satisfied that neither prisoner had any record of previous convictions, that each of the prisoners was a person of good character, that each of the offenders is unlikely to re-offend, that each of the offenders has excellent prospects of rehabilitation, having regard to their proven background of solid citizenship, and steps they have taken since their departure from the police force and also the salutary lesson of exposure. I am satisfied both prisoners have expressed remorse, although as I said, I believe Mr Fletcher's remorse is more timely. Both prisoners have pleaded guilty. That is a matter for which they receive the discrete discount to which I have referred. The consideration of s 21A(3) requires some reference to be made to s 23 Crimes (Sentencing Procedure) Act 1999.

87 Section 21A(3)(m) requires consideration of assistance to law enforcement authorities. Clearly the assistance provided by Mr Brookes has been greater than that of Mr Fletcher. Mr Brookes gave an interview, made admissions as to his guilt. Belatedly before the sentence proceedings were completed in Wagga, he made through his counsel an offer to assist the authorities by giving evidence in relation to this matter in accordance with his record of interview. I accept Mr Ward's submission that - if I could use his expression - the 'high points' of his interview are not in dispute. The Crown has indicated it does not wish to accept the offer made by Mr Brookes, I can see, as I earlier indicated, solid and sound tactical reasons for not accepting that offer. This is a case concerning the prosecution of Senior Constable L and Senior Constable C1, where the Crown's strengths will turn upon direct evidence, as I understand it, of things said by those persons to others and particularly in telephone intercepts in conjunction with objective evidence. The strength of the Crown case could in fact be diluted, with no disrespect to Mr Brookes, simply by the fact that he admits his involvement in this offence. It might be argued on behalf of the co-accused to face trial that he has a reason to minimise his involvement and maximise the involvement of others. That having been said, and having regard to the terms of s 23 Crimes (Sentencing Procedure) Act, the offer of cooperation is not irrelevant. There is authority for the fact that it would be wrong for a judge not to take into account an offer of cooperation where it had been declined by the Crown. I am not in a position in any way to comment upon the Crown's decision, beyond pointing out reasons why the Crown might not accept the offer. But in my view, at least the offer of cooperation is evidence of contrition and expression of regret by Mr Brookes. Of course, I am required to take into account the nature and extent of the assistance or promised assistance and the timeliness of the promise of assistance or undertaking to assist.

88 In relation to Mr Fletcher, very belatedly having raised the topic today, there is an indication to the prosecution that he would be prepared to give evidence in accordance with the agreed facts in this matter. Clearly that is an invitation in terms that could not be taken up without further enquiry. Ultimately, whilst I accept it as an offer in good faith, because I do not believe Mr Fletcher or his legal representatives have addressed this issue in their minds, it is a matter that merely is consistent with what I earlier indicated to be the contrition of the prisoner. No discrete discount can be calculated for either prisoner.

89 So far as the treatment of the two prisoners, I have to give regard to the issue of parity. Essentially the offending conduct in my view is the same, even making allowance for those matters adverted to in respect of the conduct of Mr Fletcher in early February. It does not, in my view, substantially increase his objective criminality by the time that he spoke again to Mr C2 in early February and spoke to Mr C1 in the telephone intercepts, the offence was well and truly completed and in any event I have heard no evidence from Mr Brookes that there had been any decision by him not to "stick together" with his colleagues. I think I can safely assume that until he was detected by the investigators, he had made no decision to resile from his statement. I appreciate of course the evidence concerning Mr Fletcher's conversations with Mr C1 is not strictly admissible against Mr Brookes, but as I said he gave no evidence before me of any change of heart, although I do not hold that against him.

90 In deciding this matter, as I foreshadowed it, I am very conscious of the attention to be given to, and the demands of, the concepts of general deterrence, denunciation and accountability. They would require in the case of a policeman usually the imposition of a sentence of imprisonment which would involve full-time custody, notwithstanding potential hardships of custody or imagined hardships of custody given the prisoners' background in arresting and bringing to justice criminals. The imposition of any term of imprisonment in my view, whichever way it is to be served, is a matter that can act as a deterrent to others. A personal deterrent to the prisoner in question, a denunciation of his conduct and a method of measuring the extent to which he should be made accountable for his conduct. However, I acknowledge of course, as authorities from superior courts have pointed out, that the service of a term of imprisonment by either periodic detention or by suspension of the sentence, is a matter of inherent leniency and it certainly does not involve anything like the hardship of full-time custody nor the extent of punishment that is involved in full-time custody. However, the imposition of a term of imprisonment by whatever method it is to be served has implications for employment and the future reputation of a person no matter how they would wish to rehabilitate themselves and take a different course in life. There is, I suppose, in light of the sentence that I have foreshadowed, the option of considering a report as to the suitability of either offender for home detention. No assessment can be sought at this point, no formal order of imprisonment has been made. However, I have given careful consideration to the matter and I have determined ultimately that I should suspend any term of imprisonment as I have foreshadowed.

91 In this particular matter the reality of the situation is noting all the various matters that I have got to take into account, the objective facts, the subjective matters, the various matters that might be said to be favourable to the prisoners or not, in the context of the maximum penalty, but in the context of the principles that have been developed in relation to s 12 Crimes (Sentencing Procedure) Act I have decided that I should impose a term of imprisonment in each case but suspend it. Giving weight as I have done in due course to all matters that have been raised by the parties, noting of course that I am not imposing the most harsh punishment that can be imposed upon the prisoners but also noting matters that I have taken into account including public shame and loss of occupation and such being sufficient in this case to deter others and to denounce the conduct of the prisoners.

92 In regard to the issue of s 12 of the Act of course apart from having close regard to the terms of the legislation I have had regard to the decision of Howie J in R v Zamagias and the decision of Fitzgerald J in the decision of R v JCE.

93 Particularly in this regard I note what Johnson J has said in Douar v The Queen (2005) 159 A Crim R 154 at [79] to [82] of the three step approach that is required, formerly described as a two step approach in cases such as Dinsdale v The Queen (2000) 202 CLR 321 and R v Foster [2001] NSWCCA 215.

94 Clearly having regard to s 5 Crimes (Sentencing Procedure) Act I have to determine whether a term of imprisonment is warranted, and clearly it is in this matter.

95 Once the sentencing option of imprisonment is selected the court must determine the length of the sentence and this is done without consideration to the manner in which the sentence of imprisonment will be served and if the sentence is less than two years the sentencer should decide whether or not the sentence ought be suspended if that option if available. I note what Howie J has said about that matter and what is said by the High Court in Dinsdale. I also note of course what has been said about this matter in the case of Kutchera v The Queen [2007] NSWCCA 121 at [48]. In any event I hope that I have dealt with all the matters that were raised with me by the parties. I certainly have taken all matters into account.

96 I will move to make the orders that I have foreshadowed.

97 First of all, Mr Fletcher. In relation to the offence to which you pleaded guilty, you are convicted. You are sentenced to a term of imprisonment of one year and six months. Pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 I order that the execution of the sentence be suspended for the term of the sentence. I direct that you be released from custody on condition that you enter into a good behaviour bond for the term of the sentence. Conditions required of you during the term of the bond are as follows. Firstly, you are to appear before court if called to do so at any time. Secondly, you are to be of good behaviour. Thirdly, you are to advise the registrar of the criminal listing directorate of the District Court at Sydney or Wagga Wagga of any change of residential address. Fourthly, you are to accept the supervision and guidance of the New South Wales Probation and Parole Service at Wagga Wagga or such other place at which you live, or such other place as is approved by the New South Wales Probation and Parole Service, for such time as the service deems necessary and you are to obey all directions of the officers of that service. Further, to enable such supervision and guidance to commence you are to report to the office of the New South Wales Probation and Parole Service within seven days of today.

98 Mr Brooks, in relation to this matter you are convicted. You are sentenced to a term of imprisonment of one year six months. Pursuant to s 12 Crimes (Sentencing Procedure) Act I order that the execution of the sentence be suspended for the term of the sentence. I direct that you be released from custody on condition that you enter into a good behaviour bond for the term of the sentence. The conditions of the bond, firstly, are that you are to appear before Court if called to do so at any time. Secondly, you are to be of good behaviour. Thirdly, you are to advise the registrar of the District Court at Wagga Wagga of any change of residential address. Fourthly, you are to accept the supervision and guidance of the New South Wales Probation and Parole Service at Wagga Wagga or such other place as approved by the New South Wales Probation and Parole Service, for such time as the service deems necessary. Further, to enable such supervision and guidance to commence you are to report to the office of the New South Wales Probation and Parole Service within seven days of today.

99 Just one matter that I earlier did omit to mention, although I have mentioned many matters. I had regard to the learned Chief Judge's judgment, which was brought to my attention very helpfully by the Crown, in the appeal to the District Court from the Local Court of Levent Aydogan, the subject of Justice Latham's judgment in 2005. I appreciate that the learned Chief Judge in ordering a term of imprisonment of nine months, suspended, for a breach of s 317(b), was dealing with the offender in relation to an offence dealt with summarily, where there was a lower minimum term. I make no other comment other than the fact that one would have thought that the circumstances of the fabricating of that false evidence were worse there than here, in the sense that the false evidence was concerned with covering up the circumstances in which a disabled woman had been assaulted by police in a remote location and had been left to cope for herself in most disagreeable circumstances. In other words, where a police officer fabricated false evidence to cover for himself and his colleagues having allegedly committed an offence against a citizen directly.

100 But be that as it may I acknowledge as the Crown pointed out of course in that matter the fact that the matter was dealt with initially summarily and that would have constrained the learned Chief Judge's approach. On the other hand it did not prevent the learned Chief Judge considering the option of suspending a shorter period of imprisonment.

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Judgment (108 paragraphs)

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