R v Gregory John BROWN

AB v The Queen (1999) 198 CLR 111 R v Ahmad [2006] NSWCCA 117 R v Aristodemou (Unreported) NSWCCA 60804 of 1993 R v Bulliman (Unreported) CCA, 25 February 1993 R v Chapman (Unreported) 21 June 1998 R v Dib [2003] NSWCCA 117 R v Doan (2000) 50 NSWLR 115 R v Einfeld [2009] NSWSC 119 CASES CITED: R v Douar (2005) 159 A Crim R 154 R v Hallicoglu (1992) 29 NSWLR 67 R v Harmouche [2005] NSWCCA 398 R v Jones and Kelly (1985) 20 A Crim R 142 R v Kennedy [2000] NSWCCA 527 R v Mostyn [2004] NSWCCA 97 R v Nguyen (2004) 149 A Crim R 343 R v Patison (2006) A Crim R 118 R v Stamboulis [2006] NSWCCA 56 R v Zamagias [2002] NSWCCA 17

ORDERS: 1. The offender is sentenced to imprisonment for a period of 8 months and 2 days.2. The offender is to serve a non-parole period of 4 months commencing forthwith and expiring on 18 October 2009 and a balance of 4 months 2 days during which he may be released on parole commencing on 19 October 2009 and expiring on 20 February 2010.

1. On 19th August 2008 the Director of Public Prosecutions commenced proceedings against the offender in the Downing Centre Local Court. Five Court Attendance Notices were filed alleging that on 4th December 2007, contrary to the provisions of Section 107 of the Police Integrity Commission Act 1996 the offender knowingly gave false evidence to the Police Integrity Commission.
2. On 16th September 2008 the offender entered a plea of not guilty to all charges. The nature of the offence is such that a full brief of evidence was required to be prepared by the prosecution and served on the offender. The matters came back before the Court on 21st October 2008. The plea of not guilty was confirmed and the Court listed the proceedings as a 2.5 day special fixture for hearing commencing 11th March 2009 and if necessary to continue until and including 13th March 2009. In conformity with the practice of the court in relation to the listing of special fixtures the proceedings were adjourned until 17th February 2009 to determine whether the plea was to be maintained and that all that needed to be done to commence the special fixture, had been done. On that date the representative of the Director and the legal representative of the offender jointly informed the Court that the hearing was ready to proceed. The Court confirmed the allocated hearing dates.
3. On the first day set aside for the hearing the Director altered the wording of the indictment to sequence one of the five charges. The Offender entered a plea of guilty to that charge. In turn the Director withdrew the remaining 4 counts. The presiding magistrate noted the plea on the record, ordered a pre sentence report and adjourned the proceedings were then adjourned to 8th May 2009 for sentence.
4. A narrative history of the progress of the proceedings to this point is important for it goes directly to what is now well settled principle in relation to the utilitarian value of a plea of guilty before a Court in its criminal jurisdiction. I will return to this issue after outlining the facts to which the plea of guilty has been entered. AGREED FACTS
5. A comprehensive set of agreed facts, signed by the offender, are attached to the remarks on sentence. Succinctly put, on 4th December 2006 the offender was called to give evidence in private session before the Police Integrity Commission in relation to a Commission investigation designated Operation Salzburg. A subject of interest within the inquiry was a fellow police officer. This person appears to have been a professional and social acquaintance of the offender.
6. The offender was asked a series of questions regarding his personal knowledge of that person's interest in acquiring a brothel or brothels. The Commission already knew, from lawfully intercepted conversations, that the offender was aware of nature of that person's interest.
7. Despite existence of the obvious reality that the questioner already knew the answer to the question the offender, on a number of separate occasions, denied any knowledge of the circumstances outlined in the question. This evidence was given under oath. It was false. That much is acknowledged in the offender's admission of his guilt before this Court. It is implicit both in the charge and the facts that the Prosecution accept his repeated falsehoods as a continuous course of conduct in relation to a single event. This explains the acceptance by the Prosecution of a plea of guilty to one charge and the subsequent withdrawal of the additional 4 charges originally preferred in addition thereto. Before turning to other issues relevant on sentence I will deal with the entry of the plea of guilty.
8. Section 22 of the Crimes (Sentencing Procedure) Act 1999 is expressed, inter alia, in the following terms: "(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty and may accordingly impose a lesser penalty than it would otherwise have imposed. A plea of guilty is also a mitigating factor as expressed within the provisions of Section 21(3)(k) of the Act.
9. At paragraph 15 of written submissions to the Court counsel representing the offender asserted that the "offender entered a plea of guilty at the first reasonable opportunity". The solicitor representing the Director at paragraph 20 of his submissions expressed the view that "The prosecution concedes that the offender should receive some discount for his plea of guilty, however the weight should be reduced given the lateness of the plea". The Court is obliged to resolve the contradictory nature of the respective submissions. In that context the narrative history of the progress of the prosecution to the point at which a plea of guilty was entered to one count of knowingly giving false evidence becomes obvious.
10. Objectively the submission made by counsel for the offender is unpersuasive. If the offender acknowledges on 11th March 2009 that he is guilty of the charge to which a plea of not guilty was entered on 16th September 2008 how can he possibly argue that such a plea was entered at the first reasonable opportunity? The elements of the offence to which the plea was ultimately entered are no different to those that the prosecution was required to prove at the time the denial of guilt was first entered. The only practical change that may be deduced is that the Prosecution accepts his false testimony was a continuous course of conduct not 5 different courses of conduct.
11. It is clear there has been a degree of negotiation between the prosecution and the defence but there has been no substantive change to the nature of the charge against the offender. It is often overlooked in relation to the opportunities that are available under Section 22 of the Act that it is entirely within the capacity of a guilty to person to give an indication of an intention to plead guilty rather than formally entering such a plea on the record. Section 22(1)(b) is clear in that regard. That the offender chose not to pursue such a course may have been a tactical decision taken by him with or without appropriate advice however it should be emphasised that the offender was unequivocal in his approach to this prosecution. He entered pleas of not guilty to each and every charge initially preferred against him, including the charge to which a plea of guilty was ultimately entered and in relation to which the Prosecution accepted was in full satisfaction.
12. The principle in such circumstance is well settled R v Dib [2003] NSWCCA 117, R v Harmouche [2005] NSWCCA 398 and R v Stamboulis [2006] NSWCCA 56. In Stamboulis the Court said:

"There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course then so be it. But if by withholding the plea the offender achieved the result he wanted I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had a utilitarian value when it did not. Rarely, if ever, will the reason why the accused withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity."

Again in R v Ahmad [2006] NSWCCA117 at [17]-[18] the Court said:

"The circumstances of the present case are not uncommon. The applicant maintained his plea of not guilty at committal and for a lengthy period thereafter, which required the Crown to marshal resources in the expectation of having to prosecute a defended trial. Shortly before that trial the accused bargained for a reduced charge in consideration for a plea. Because of the need for the Crown to prepare for the trial the utilitarian value of the plea was significantly diminished as against the circumstance where the appellant pleaded guilty at or before the committal."

13. It will be obvious to all that the manner in which the offender has approached these proceedings does not entitle him to a significant discount for the utilitarian value of his eventual plea. It cannot be said that by his plea he assisted greatly in the administration of justice, quite the contrary. As a result of his initial plea the prosecution was required to prepare and serve a brief of evidence. The Court in order to meet the circumstances was informed that 3 days of valuable court time would be required to hear the matter. It allocated that time. The offender affirmed that this time was still required when the matter came back to confirm that all was ready for the defended hearing to proceed. All the while the offender knew better than anyone else that he was guilty of giving false evidence before the Police Integrity Commission. I reject the submission of counsel that the offender entered a plea at the first reasonable opportunity. I agree with the Prosecution on this point.
14. Nonetheless there is a marginal benefit to the administration to be gained by the plea of guilty, even one entered at one minute to midnight. In the exercise of my discretion I am prepared to mitigate the eventual penalty by providing a discount for the utilitarian value. I identify the value of the discount at 10%.
15. Before proceeding further in relation to the subjective factors before the Court it is pertinent to note some matters of principle relevant to an offence such as this. I note the comments made by James J in R v Einfeld [2009] NSWSC 119 at [183]. Although those comments were made in relation to the offences of perjury and perverting the course of justice the nature of the offence before this Court is not so removed by analogy as to not attract the wisdom and applicability of his honour's statement of principle in relation to the particular importance of general deterrence and denunciation. In Einfeld His Honour said:

"As has often been said, each of the offences of perjury and perverting the course of justice strikes at the heart of the administration of justice. These offences are often referred to as offences against public justice. In sentencing for these offences there is a special need to give effect to the purposes of sentencing of general deterrence and denunciation, as well as the other purposes stated in s 3A of the Crimes (Sentencing Procedure) Act. …….. In the case of perjury a full time custodial sentence should be imposed, unless there are very special circumstances…. as in the case of sentencing for offences generally, persuasive subjective considerations should not be permitted to cause inadequate weight to be given to the objective facts of the offending".

16. Although the objective seriousness of the offences before the Supreme Court in those proceedings is greater than that of the offence before this Court the observations of the court are helpful. They are also consistent with the statements of principle contained within R v Aristodemou (Unreported) NSWCCA 60804 OF 1993. In this regard I adopt the reference made by the Director to the observations made by Badgery-Parker J when his Honour said

"It was submitted that the sentence was not reasonably proportional to the objective seriousness of the offences and exceeded what was required to accord with the general moral sense of the community. In particular in that regard it was submitted that the motive for which the crime was committed was relevant to the degree of culpability of the offender, and that his Honour failed to give any consideration to the appellant's motive, as to which he gave sworn evidence which was not challenged, namely a desire to avoid informing on others and to avoid involvement in the exposure of the corruption of others. It was submitted that the community would and it was appropriate that the Courts should regard an offence committed for those reasons as less serious than an offence of false swearing committed to conceal the offender's wrong-doing. I would reject that submission entirely. The will of the community that led to and is manifested by the enactment of the ICAC Act is that corruption should be eradicated from the community and that the means to produce that result should include the coercive and inquisitory powers conferred on ICAC by statute. Where a person acts so as to frustrate an ICAC investigation into corruption, it would appear to me that the community would approve that he should be severely punished. In particular, I do not accept the proposition that the community would regard as in any way a mitigating circumstance that the motive for the applicant's false swearing was not to conceal corruption on his own part but was to conceal the corrupt conduct of others. No doubt there is an acceptance on the part of those who commit crime that it is dishonourable to inform on others and that there is some nobility in declining to do so. It by no means follows that the same view is taken by right-thinking members of the community and for my part; I refuse to proceed on the assumption that this is so. It is no doubt true that in some circumstances the seriousness of a crime may be seen to be mitigated if it was committed for an honourable, albeit mistaken motive. It is in my view an attempt to press that submission too far if the conduct is such to defeat the purpose of legislation enacted in the public interest."

17. Counsel for the offender suggested that the conduct of the offender was less serious because the conduct of his fellow police officer was not of itself unlawful or corrupt. The prosecution acknowledges that this is a fact. This does not necessarily mean that the conduct in committing the offence is correspondingly mitigated. In Aristodemou the Court cited with approval the observations made in R v Bulliman (CCA unreported 25 February 1993) wherein the Court per Abadee J said:

"False evidence strikes at the whole basis of the administration of justice and indeed it undermines the whole basis of it. Justice inevitably suffers, whatever be the motive for making of false statements on oath [my emphasis] in which the offence or offences are committed."

As an additional statement of principle I note again the comments made in Einfeld regarding the need for general deterrence and again turn to Aristodemou for a succinct statement of the approach to be taken in sentencing for these types of offences. The Court said:

"The purpose of an appropriate sentence in this class of case is not only to punish the offender but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this type of case….Any person who commits an offence of perjury or false swearing in the course of judicial proceedings or in proceedings such as a Royal Commission or an ICAC Inquiry should do so in the clear understanding that if this offence is detected he will go to gaol except in very particular circumstances."

18. The prosecution makes no submission to the Court in relation to whether the conduct of the offender attracts considerations relevant to aggravation. For the record there are no aggravating features in the commission of the offence such that might be identified as falling within the statutory purview of Section 21A(2) of the Act. However these provisions within the Act do not cover the field or constrain the Court.
19. The fact that the offence has been committed by a police officer is a relevant matter to take into account. As a police officer the offender was in a position of trust, perhaps not in the prima facie restricted sense set out in Section 21A(2)(k) but certainly in a wider sense. This represents a circumstance of aggravation. As Spigelman CJ stated in R v Nguyen (2004) 149 A Crim R 343 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."

In R v Chapman (unreported 21/5/98) Simpson J said:

"Those concerned with the administration of the law must be taken to appreciate the supreme importance of truthful evidence being given in judicial proceedings. The respondent did not cease being a police officer or carrying out the duties of a police officer and having the privileges of that office because these events arose out of recreational and not professional activities. He must be taken to have known, better than most, how important the curial procedure is and with what respect it must be treated."

20. Although both those observations relate to different offences the views expressed are nonetheless pertinent and in my view appropriate to be made in relation to the giving of false evidence before the Police Integrity Commission.
21. In his submissions on sentence counsel for the offender conceded on the relevant authorities that it was difficult to argue against a sentence of condign punishment. He argued that if imprisonment was to be the outcome then it should be suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 or be served by way of Periodic Detention. In support of both propositions counsel addressed a number of subjective circumstances. Such submissions were framed against the statutory considerations set out in Section 21A(3) of the Act. The provisions considered relevant by Counsel are set out at paragraph 14 of his written submissions. I agree that other than in relation to Section 21A(3)(a) counsel has identified issues relevant to be taken into account in mitigation of penalty.
22. I am not persuaded that Section 21A(3)(a) has application to an offence of this nature. It appears to the Court that "injury, emotional harm, loss or damage caused by the offence" is limited to the impact of the offence on an identifiable victim or victims. Although every offence may be said to create a victim in the form of society in general I do not believe the legislative intent was to extend the field within this provision to cover a philosophical construct.
23. Without expressing the need to unduly particularise any of the remaining mitigating factors I accept the offender's conduct was not part of a planned criminal activity. I accept that he has no record of previous convictions and is a person of otherwise good character.
24. The law requires good character to be taken into account in mitigation of penalty. The general proposition however can be affected by the nature of the offence. In R v Kennedy [2000] NSWCCA 527 AT [21]-[22] the court said, inter alia:

"…a court may legitimately give less weight to prior good character as a mitigating factor. Generally speaking, such a situation might arise where general deterrence is important, the particular offence before the Court is serious and is one frequently committed by persons of good character."

25. The statement of principle referred to in Aristdemou (supra) regarding the importance of general deterrence in matters such as this support the conclusion that the court must give less weight to the offender's good character than it might otherwise have done.
26. Following on the observation regarding the approach to be taken in relation to good character for an offence such as this I accept the offender is a person who is unlikely to re-offend. It follows that there are good prospects of rehabilitation. This is made more likely by reason of the disclosure to the Court that his employment within the Police Force will shortly conclude by reason either of dismissal or resignation. I also accept that despite the lateness of the plea he is remorseful. It is clear from the references tendered to the Court and the circumstances relating to his wife that the offender is by now fully aware of the ramifications of his conduct. It is disappointing such an understanding did not forestall the commission of the offence for it is also clear from documentation tendered on his behalf that he has been a very good police officer and an asset to the community during the period of his service. I have no doubt he is disappointed in himself for letting others down.
27. Both the prosecution and counsel for the offender made submissions to the Court on the issues of extra curial punishment, hardship and the impact of a sentence on third parties. Hardship in custody is a matter for consideration only if the court concludes that a sentence of imprisonment should be imposed. The other two submissions are relevant on the issue of mitigation of the penalty. I will deal with the issues of extra curial punishment and the impact of a sentence on third parties at this point in the sentencing process.
28. The Prosecution at paragraphs 23 and 24 of its written submissions concedes the offender, by reason of his acceptance of prospective dismissal from the Police Force, will suffer a form of extra curial punishment but that the weight to be given to possible extra curial punishment must be balanced against the need for general deterrence. In my view in relation to this type of offence such an approach is appropriate. This is an offence where general deterrence is paramount. It is an offence that largely results by reason of the offender's employment and the creation of an institution in the form of the Police Integrity Commission intended to reduce if not remove corruption and other inappropriate behaviour from the Police Force so that the community may ultimately benefit and public confidence in law enforcement be enhanced. Although I am mindful of the consequences of conviction to the offender in terms of his employment I do not believe that likelihood should operate to mitigate the penalty.
29. So far as hardship in the form of impact on third parties is concerned counsel for the offender drew the court's attention to the offender's personal circumstances, in particular those that involve the care and treatment of his aged parents and the considerations that apply to the health of his wife. This Court is ever mindful of the impact of its decisions on persons other than an offender. As well as an overriding concern for a victim of crime a court should never lose its sense of compassion for the innocent third parties who suffer as a consequence of an offender's criminal offending behaviour. Such a feeling however does not override the duty required of a judicial officer.
30. As the Sentencing Bench Book [at 10-490] states: "The general principle is that hardship to family and dependants is an unavoidable consequence of a custodial sentence and is not a mitigating consideration unless such hardship is "wholly", "highly" or "truly" exceptional." Sympathetic as one might be to the consequences for members of the offender's family I cannot conclude that the potential impact of imprisonment is so far outside the ordinary as to enter the realms of exceptional.
31. Having identified the relevant subjective considerations I turn to the objective seriousness of the offence and the objective seriousness of the conduct within the commission of the offence.
32. The maximum penalty for an offence against the provisions of Section 107 of the Police Integrity Commission Act 1996 is 200 penalty units or 5 years imprisonment or both. Where an offence is dealt with summarily the maximum penalty is 50 penalty units or 2 years imprisonment. The latter jurisdictional limit on sentence does not define the objective seriousness of the offence. So much is clear from the now well-settled principles set out in R v Doan [2000] 50 NSWLR 113.
33. In my view the objective seriousness of the conduct within the commission of the offence is towards middle range. I do not believe it warrants a penalty that would otherwise exceed the jurisdictional limit of the court. Much has been made by counsel for the offender of the fact that the false evidence did not mislead the Police Integrity Commission and was not in relation to corrupt conduct. That may be, as the Prosecution concedes, a fact but it can hardly be suggested that at the time the offender was knowingly giving false evidence he was calmly concluding as part of his decision making processes that he could lie to the Commission because it was a lesser sin than if he was covering up actual corruption. It is highly unlikely the offender would know where the Commission was heading in terms of its investigation codenamed Operation Salzburg. For all the offender knew his false evidence, had it been accepted may well have been protecting another police officer from detection in relation to corrupt conduct.
34. It is the fact of the false evidence that is the operative consideration. Why that is so can be derived from a reconsideration of the extracts from Aristodemou and Bulliman at paragraph 17 above.
35. In line with settled principle and addressing the provisions of Section 5 of the Act I form the view that there is no other alternative in this matter than to impose a sentence of imprisonment. Taking into account the subjective matters set out above the appropriate sentence is one of imprisonment for 9 months. Applying the discount of 10% the appropriate sentence is one of imprisonment for 8 months and 2 days. In line with the principles set out in R v Zamagias [2002] NSWCCA17 at [25] it is at this point that I turn my mind to the alternative submissions made by counsel for the offender, firstly that any sentence of imprisonment be suspended and secondly that if this is considered inappropriate, that it be served by way of periodic detention.
36. Both approaches have an element of inbuilt leniency. This is recognized in Zamagias in relation to both outcomes and in R v Hallicoglu (1992) 29 NSWLR 67 regarding periodic detention. Having considered both alternatives I accept they would meet some of the purposes of sentencing set out in Section 3A of the Act but not to the full satisfaction of the law. Against the background of the observations of the Court in Aristodemou regarding the importance of general deterrence in dealing with offences of this nature I turn to the comments made by Johnson J in R v Douar (2005) 159 A Crim R 154 at [69]-[72] when discussing the approach in relation to considering the imposition of periodic detention:

"…Each step requires requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt"

"The appropriateness of an alternative to full time custody will depend upon a number of factors; one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment. The Court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all of the purposes of punishment."

37. General deterrence is clearly the paramount consideration in dealing with offences such as this. I have considered whether a suspended sentence would achieve that purpose. I do not believe that it can. The clear emphasis in decisions such as Aristodemou, Bulliman and Einfeld that full time imprisonment is the most appropriate way in which to foster respect for truth in the relation to what may be generally described as public justice offences. I decline to deal with this offence by way of a suspended sentence or an order for periodic detention.
38. The offender is sentenced to imprisonment for a period of 8 months and 2 days. I turn finally to the issue of hardship and consideration of special circumstances.
39. I accept the submission by the offender's counsel that the nature of the offender's profession is such that he is likely to serve any term of imprisonment by way of protective custody. Whilst I acknowledge the general proposition raised by the solicitor for the Prosecution that the court must be satisfied that hardship will occur in fact rather than as a speculative conclusion I think it difficult to argue against the realities of life and the observations of other superior courts at other times regarding the consequence of a police officer being imprisoned. Although it is a matter for the Department of Corrective Services it is difficult to envisage this offender being placed within the general prison population.
40. Counsel referred the Court to the observations made by Street C.J. in R v Jones and Kelly (1985) 20 A Crim R 142 at 153. The observations made at that time are as pertinent today as if they were uttered anew. Having come to the view that there will be a degree of hardship suffered by the offender as a result of the inherent likelihood of being held in protective custody I adopt the observations of Kirby J. in AB v The Queen (1999) 198 CLR 111 wherein His Honour said:

"… it is well recognized in England and in Australia that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison.

41. I accept that a contrary view was expressed in R v Mostyn [2004] NSWCCA 97 however on balance I prefer the views expressed by Kirby J as the persuasive determinant in this matter. In accordance with Section 44(2) of the Act I find special circumstances are established such as to warrant an alteration of the non-parole period.
42. Having come to the view that the offender will endure a measure of hardship it does not follow that this represents a basis for reducing the sentence. Inevitably the sentence must be commensurate with the crime and meet the purposes of Section 3A of the Act. It does mean however that in the exercise of the Court's discretion active consideration is to be given to the relationship between the head sentence and the non-parole period. Left unaltered the non-parole period would be 6 months and 1 day.
43. In R v Patison (2006) 143 A Crim R 118 at 136-137 the court accepted that every year served in strict protection is the equivalent of 18 months or 2 years in normal conditions of imprisonment. The observations of the Court in that case do not mean that a finding of hardship and thus special circumstances results in a mathematical approach to the calculation of the non-parole period resulting in a reduction of the non-parole period by half. Ultimately the sentence must be capable of reflecting the objective seriousness of the conduct.
44. Weighing the competing considerations in the balance I come to the view that varying the statutory non-parole period of 6 months and 1 day to 4 months is an appropriate adjustment. The offender is to serve a non-parole period of 4 months commencing forthwith and expiring on18th October 2009 and a balance of 4 months 2 days during which he may be released on parole commencing on 19th October 2009 and expiring on 20th February 2010. Graeme Henson Chief Magistrate Downing Centre Local Court 19 June 2009

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