The Crown appeal
41The Crown has pleaded four grounds of appeal, as follows:
"Ground 1: His Honour was in error in finding that hardship to third parties justified the suspension of the sentence.
Ground 2: It was not reasonably open to his Honour to find that Farrell did not pass on any information from COPS entries to the respondent.
Ground 3: His Honour was in error in suspending the sentence.
Ground 4: The sentence is manifestly inadequate."
Ground 1:] suspension of sentence
Ground 3:]
42It is clear from the extracts from the Remarks on Sentence above that his Honour (correctly) considered that the respondent's offence called for a sentence of imprisonment. It is equally clear that the sole reason for ordering that execution of the sentence be suspended was the hardship to others, particularly employees of the businesses operated by the respondent.
43The Crown referred to a long line of authority to the effect that it is only in exceptional circumstances that hardship to third parties can be taken into account in order to reduce an otherwise appropriate sentence: R v Edwards (1996) 90 A Crim R 510. The Crown also illustrated that proposition by reference to a series of cases following Edwards in which hardship has been rejected as a basis for reduction in sentence: see Hay v R [2013] NSWCCA 22; Ihemeje v R [2012] NSWCCA 269; Bangaru v R [2012] NSWCCA 204; FP v R [2012] NSWCCA 182; Flick v R [2012] NSWCCA 170; McCraw v R [2011] NSWCCA 162; Sinkovich v R [2011] NSWCCA 90; R v Kertebani [2010] NSWCCA 221; King v R [2010] NSWCCA 202; Dipangkear v R [2010] NSWCCA 156; Waugh v R [2010] NSWCCA 3; Elmir v R [2009] NSWCCA 22; Hopley v R [2008] NSWCCA 105.
44It is to be noted that virtually every case (Edwards excepted) in which the subject of exceptional hardship to third parties has been considered as a possible basis for reduction in sentence has involved hardship to family members. That is not this case. Although his Honour recognised and accepted that the hardship that would follow the incarceration of the respondent would affect his wife and children, he properly recognised that that is a common consequence of the incarceration of an offender. It was, as I have said above, the impact on employees and the businesses that motivated his Honour to make the order that he did.
45Although this Court was referred to no other case in which it has been suggested that the effect on employees could be allowed to affect the sentence to be imposed, such a prospect was recognised by Gleeson CJ in Edwards. His Honour said:
"There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed ... it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment." (italics added)
46Tellingly, the Crown submitted, the sentencing judge not only made no reference to these authorities, but he gave no indication that he had the principle in mind.
47The Crown in the sentencing proceedings left no doubt that its position was that anything less than the imposition of a full-time custodial sentence would constitute appellable error. Unfortunately, the Crown did not explicitly state the principle, nor did she refer to any authority. The nearest she came to stating the principle was in her reference to "the absence of exceptional subjective circumstances" in her response to the sentencing judge.
48That she did not make any such express reference is perhaps understandable, given that the principle is well established and well known and that it might not have been apparent in advance of the hearing (and even in the very late stages of the hearing), that such an order (for suspension) would be proposed on behalf of the respondent.
49Counsel for the respondent referred to a passage in the judgment of Whealy J in Dipangkear, in which his Honour summarised the principles relevant to the question here under consideration. His Honour said:
"The present situation of the law, relevant to the present appeal, may be briefly stated as follows:-
(a) Where all the features of the particular case point to the need to impose a custodial sentence but there is evidence of extreme hardship, a court may take into account the extraordinary features of the case in any one of three ways. It may suspend the sentence of imprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased.
(b) Each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person." (italics added)
50It is to be observed that the summary in Dipangkear of what steps are open to a court proceeds on the premise that "extreme" hardship, or "extraordinary features of the case" have been found. That is not this case.
51Counsel for the respondent pointed only to the reference to "very significant hardship" in the remarks at the point where the sentencing judge was dealing with the possibility of suspending the sentence as indicating that he had the principle in mind.
52I am satisfied that that does not amount to an adequate consideration of the principle stated in Edwards and subsequent cases, and does not amount to a finding that circumstances were exceptional within the principle stated. It could not have done so; the evidence was far from adequate to establish exceptional circumstances.
53At the time the Crown appeal was heard, although the sentencing outcome in respect of Farrell was known, the judge's Remarks on Sentence were not available. They have since been released, and counsel for the respondent provided them with additional submissions in writing. The import of the additional submissions was that the judge was at some pains in those Remarks (post dating the sentencing of the respondent) to recognise the exceptional nature of the suspension of a sentence where the offending calls for full-time imprisonment. He also emphasised, as he had when sentencing the respondent, that the only reason for suspending the sentence was the potential effect on the employees of the respondent's businesses.
54These additional remarks do nothing to change the view I had already formed, and have expressed above. First, a subsequently stated explanation for a sentence ought not ordinarily be taken into account. Second, a finding of exceptional circumstances was necessary in order to justify the suspension of what would otherwise be a sentence of imprisonment to be served in custody. There is no recognition of the need for a finding of exceptional circumstances on the Edwards principle. Third, the circumstances he took into account were not capable of amounting to exceptional circumstances within the Edwards principle.
55In my opinion Grounds 1 and 3 must succeed. The evidence of hardship to third parties was not such as to entitle the judge to convert what he recognised ought to have been a sentence of full-time custody into one which was suspended.
Ground 2: information passed by Farrell to respondent
56The precise terms in which Ground 2 are pleaded are set out above. It is predicated upon the factual premise that his Honour found (as a fact) that Farrell did not pass on any information from COPS entries to the respondent.
57In my opinion, the ground as pleaded is misconceived. His Honour made no such finding. As is plain from the extracts I have set out above, his Honour was urged by the Crown to find that Farrell had indeed disclosed to the respondent relevant information. In making those submissions, the Crown relied upon significant items of evidence, most of which, being recordings of intercepted telephone conversations, were not (and could not have been) the subject of challenge. These included the exchange between Farrell and the respondent on 24 May, in which Farrell asked the respondent to provide his driver's licence number (which the respondent did) following which Farrell accessed the COPS system, and a number of intelligence reports. Another was the telephone conversation between the respondent and Cheyne Rogan, in which the respondent warned Rogan not to associate with a third party, and referred to his "very good hunch".
58It is true that from these an inference, and a strong one, was available that the respondent was in possession of information provided to him by Farrell. Indeed, it would be very difficult to sustain an affirmative finding of fact that Farrell had not disclosed information to the respondent. However, his Honour did not make that finding of fact; he referred to the proposition of the Crown as "conjecture". Although he did not say so in terms, the only reasonable interpretation of his findings in this respect is that he was not satisfied beyond reasonable doubt that Farrell had made the disclosures to the respondent.
59That makes the ground very difficult to sustain. In effect, the Crown would have to establish that it was not open to the sentencing judge not to be satisfied beyond reasonable doubt that the disclosures had been made; put another way, that the evidence of disclosure was so overwhelming that no conclusion other than that disclosure had been made was open.
60While I find the judge's failure to be so satisfied a little puzzling, I do not think it can be categorised as an error in the necessary sense.
61I would reject Ground 2.
Ground 4: manifest inadequacy
62As argued, this ground depends entirely upon the suspension of the sentence. Senior counsel who appeared for the Crown accepted that he could not realistically seek an increase in the term of the 9 month sentence imposed. That concession has much to do with the sentence subsequently imposed upon Farrell, and principles of parity. In my opinion, that concession is overly generous.
63For my part, I could easily be persuaded that a sentence of 9 months imprisonment is manifestly inadequate to meet the criminality involved in this offence. However, since the Crown has not sought an increase in that sentence, and the respondent has accordingly not been heard in that respect, I would not propose an increase in the sentence. In addition, as this offence is one which is (fortunately) not frequently seen in the courts, there is a dearth of judicial authority on appropriate sentencing. For those reasons, I would accept the Crown concession, to the effect that this Court should re-sentence the respondent by re-imposing the sentence of 9 months' imprisonment, but deleting the order for suspension. Moreover, senior counsel for the Crown fairly accepted that it would be appropriate to specify a non-parole period applicable to the 9 months sentence.
64I wish to make it perfectly plain that the sentence I propose ought not to be taken as a benchmark for sentencing in respect of offences against s 200 of the Police Act. Such offences are serious, and threaten the integrity of the administration of justice. They potentially may pose danger to police sources of information, and jeopardise important investigations. My acceptance of the sentence of 9 months is based solely on the position adopted by the Crown, and that, to increase that sentence at this stage, would involve this Court in a denial of procedural fairness.
65I therefore propose the following orders:
(i) Crown appeal allowed;
(ii) The sentence imposed on the respondent be quashed;
(iii) In lieu thereof the respondent be sentenced to imprisonment for 9 months, commencing on 13 May 2013 and expiring on 12 February 2014, with a non-parole period of 6 months and 3 weeks expiring on 3 December 2013.
(iv) Direct that the respondent be released at the expiration of the non-parole period.
66HARRISON J: I agree with Simpson J.
67BELLEW J: I agree with Simpson J.