R v MacLeod

The respondent's personal circumstances 19The respondent did not give evidence either in the trial, or on sentence. A considerable amount of personal information was put before the sentencing judge by way of a pre-sentence report prepared by an officer of the Probation and Parole Service, a psychological report, and a considerable volume of references and testimonials. 20The respondent was born in March 1971, and was therefore 40 years of age at the time of the offence. He had no prior criminal history. He was in a stable marriage, with two children aged (at sentencing) 6 years and 3 years. As mentioned above, he successfully operated furniture businesses, which produced adequate income. The authors of many of the testimonials spoke highly of his work ethic and commitment. 21To the author of the pre-sentence report, the respondent claimed that the restricted substances located at his home on 1 June came into his possession by a variety of means - some had been left at his residence by visiting friends and relatives, some belonged to his wife, others were prescription medicines which he had tended to hoard. His wife gave a similar account. 22The author of the report expressed considerable scepticism, noting: "Mr MacLeod's explanations for the substances was found wanting. Important questions remained unanswered regarding the provenance and purpose of the items." 23The author of the report also recorded that the respondent had explained the conversation of 5 May as "just a joke". 24The psychological report to which I have referred was prepared by Dr Jacqui Yoxall. She recorded a similar personal history, including information provided to her by the respondent that Farrell was "one of his closest friends". She recorded that the respondent had explained to her also that the conversation of 5 May was nothing more than a joke between friends. She recorded that the respondent was aware of the potential of a sentence of full-time custody, and that he told her that that would have a devastating financial impact on his businesses, his staff and his family, and that his wife would be unable to manage the businesses in his absence; she said that he asked rhetorically, even if his wife took on the responsibility for the businesses: "Who would look after our children?" She recorded that the respondent told her that, if the businesses were lost, the costs of restarting would be prohibitive. 25At this point it can be noted that following receipt of Dr Yoxall's report, the respondent emailed her with some corrections to factual matters in the report. Of present interest is the following: "Substances taken from home was more than just Viagra. A total of 13 items were seized, of which 10 were eliminated by either doctors script, physician dispensed (not requiring a script) or expired medication (most expired over 6 years ago). There are only 3 items of which I may be called upon to answer to. Literally nothing in quantity." 26Among the testimonials and references tendered was one from the respondent's wife, attesting to the history of their relationship and the businesses. She described the respondent as "the heart and soul and the driving force" of the businesses. Also included in that bundle was a letter from Ms M Jenkins, the accountant to the business. After describing in very positive terms the respondent's attention to and involvement in the businesses, Ms Jenkins referred to a recent period in which the respondent had become involved in another business on the Gold Coast which deflected his attention from the Coffs Harbour stores with the result that the Coffs Harbour stores suffered. She said that since he had removed himself from the Gold Coast business the Coffs Harbour stores had been performing better and were "getting back on track". 27She said: "It does concern me that should Andrew be unable to manage the business on a daily basis that its financial performance will suffer. Those relying on their jobs and the financial support of this business will suffer. The local Coffs Harbour business community will also suffer if there is another struggling business. Additionally, the value and reputation of the business will also suffer."

The proceedings on sentence 28The sentencing hearing took place on 13 November 2012. As mentioned, the respondent did not give evidence, and no oral evidence was called on his behalf. Counsel who appeared for him both at sentence and on appeal relied upon the documentary material placed before the sentencing judge. He pointed out that the origin of the collusive agreement lay in the offer by Farrell, unprovoked and unsolicited by the respondent. 29He made other detailed submissions, of which the following ought be noted. He made particular reference to Dr Yoxall's report, concerning the respondent's involvement in the businesses, and their viability being dependent upon his involvement. He also referred to the statement by Ms Jenkins, particularly the paragraph extracted above. 30His Honour then said: "Just so that I don't have any doubt about the adverse impact on both personal and if I can use a broad term, commercial that a sentence of imprisonment would have on a large number of people, that is convincingly argued in a number of the documents. The difficulty is for me is how heavily that consideration weighs in the overall determination of the sentence because generally that's not a matter of central importance in all of the issues that have to be weighed, I don't know whether the Crown would choose to say anything about that particular issue or not but it is well it's not for example a matter that is listed as a consideration under the relevant legislation, it is under the Commonwealth Act I should note, but not under the State Act and that tends to have led the court to - courts in this State to take the view that it's not a matter of central importance, but Ms Crown you're looking --" 31The Crown replied: "No I accept that it's a matter of mitigation and your Honour could well take that into account but eventually the Crown would say the serious nature of the offence and the absence of exceptional subjective circumstances the only appropriate sentence would be imprisonment." 32There was then further discussion with counsel for the respondent, who submitted, inter alia, that there was no evidence that the respondent was making use of any information provided by Farrell. Ultimately, counsel submitted that a non-custodial sentence would be open, and that if his Honour considered that the offence warranted something more serious than that, then a period of imprisonment wholly suspended would "suffice to cover all of the matters" before the sentencing judge. His Honour invited the Crown representative to comment upon that, to which she replied succinctly: "Your Honour would be falling into appellable error."

The Remarks on Sentence 33I have already referred to some of the factual findings made by the sentencing judge. The respondent does not dispute that the collusive agreement was made in the telephone call of 5 May; nor that the collusive agreement involved Farrell agreeing to access confidential police records, and disclose that information to the respondent; nor that Farrell did in fact have that access. What was in dispute in the proceedings was whether, and if so, to what extent, Farrell disclosed the results of that access to the respondent. This was the disputed issue of fact which I mentioned in [5] above. The sentencing judge dealt with this in his Remarks on a number of occasions. At an early stage, he said: "It was part of the Crown case, and continues to be part of the Crown case on sentence, that it can be fairly assumed that the uninterrupted conversation was one in which Farrell, having access to COPS records - and I will come back to those in some more detail later - had passed on at least some of the information which was contained in those records. But that remains a matter of conjecture, I underline, but it certainly has been something which has been raised in both contexts by the Crown and which may take on some importance for reasons I will come back to later." Later he said: "There is no evidence in this case of any actual benefit from the supply of information. I say that with the necessary reservation, and I will have something more to say about this in due course, that a great deal of what I will call the peripheral evidence in this case is very inconclusive. Whether Farrell ever did pass on the information to the offender which he had belatedly obtained from the COPS entries remains a matter of conjecture. We know from the evidence, and this was one of a number of admitted facts, that Farrell accessed these entries, and he therefore had the entries available to him, and he could have passed them on, but there was no direct evidence of that ever happening." 34With reference to the conversation with Cheyne Rogan, in which the respondent had claimed to have had "a very good hunch", the sentencing judge said: "Again it is a matter of inference, and I make no further comment on that, but again can I say that that warning does not indicate that the offender was getting any benefit out of even that information that appears to have been passed on from Mr Farrell. It was intended, if anything, for the benefit of Mr Rogan rather than for anyone else." Finally, his Honour said: "The Crown's position was essentially this, that the offender, on the basis of all of the evidence available on sentence, was, at the time of the offence, and had been for some years, engaged in the possession and sale not only of restricted substances, including steroids, but probably illicit drugs. That the items found and seized during a search of his house and garage were symptomatic of a much more substantial involvement in the import, possession and sale of illicit substances. The offence in this case, the Crown therefore argued, should be assessed in that broader context." 35Later, his Honour dealt with the substances found at the respondent's home as a consequence of the execution of the search warrant. He expressed considerable scepticism about the explanation given by the respondent to Dr Yoxall concerning these substances. He noted that the respondent's assertion that only three items called for explanation was inconsistent with the nine charges on the Form 1. 36With respect to the respondent's personal circumstances, the sentencing judge quoted at some length from Dr Yoxall's report, and referred to the various letters and testimonials. He accepted the respondent as a person of prior good character. 37Nevertheless, in the light of what was contained in the pre-sentence report, he found that there was no remorse exhibited by the respondent, and held that that rendered a satisfactory conclusion with respect to potential re-offending impossible. 38He held that the offence fell at the lower end of the scale of objective seriousness, and that in those circumstances an appropriate sentence would be of imprisonment for 9 months. 39He then turned his attention to the matter that has been the focus of the Crown appeal - the suspension of the sentence, which he said caused him more difficulty than any other matter he had to consider. He referred again to the sentiments expressed in the testimonials, but observed that the person portrayed in those testimonials was nevertheless guilty of a serious criminal offence. He said: "That is, I have to say sadly, not unusual, a respectable member of the community engaged in criminal activity, and this is clearly an example. My concern, however, when it comes to a sentence of imprisonment, is not the offender. The offender in my judgment deserves to go to gaol and I have no reservations about that. However, sending him to prison will, on the testimonials which I accept, cause very significant hardship, not just to the immediate members of his family, to his wife and two children; that is inevitable, but he is a businessman, self employed, with a number of employees. His businesses, according to the testimonials, will suffer considerably and will be at risk if they are deprived of his involvement. I am therefore mindful of the impact on quite a large number of people if this man is imprisoned. It is that factor which causes me to consider very carefully whether the sentence should be suspended, and I have given this matter very careful consideration, particularly in view of the position which the Crown quite properly has taken. I have concluded only with very considerable difficulty because of the impact which imprisonment will have on a number of others, totally undeserving and with no involvement in the commission of this offence, that a suspension of the sentence is appropriate." (italics added) 40He accordingly made the order under s 12 of the Sentencing Procedure Act suspending execution of the sentence.

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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2013