Ms Newman has been charged under s 308H(1) of the Crimes Act 1900 (NSW). An offence against this section is a summary offence which carries a maximum penalty of 2 years imprisonment.
Ms Newman pleaded guilty.
[2]
The Facts
The following account is taken from the NSW Police Fact Sheet supplemented by the outline of written submissions provided by the defence counsel. I understand that there is no challenge to those facts that are supplementary to the facts in the Police Fact sheet.
At the time of the offence Ms Newman was a 20 year old full-time university student working casually at a private tertiary college, the Whitehouse Institute ("the Institute"). She was working in the library. She had heard more senior staff members allege that a private scholarship had been granted by the Institute to the daughter of the Prime Minister. She understood that the Institute had also recently applied for and received Federal Government accreditation and funding for a Masters program.
A more senior staff member of the Institute had informed the members of the media of the private scholarship but had been advised that the story would not be run without evidence.
Ms Newman, a junior part-time staff member, was told by more senior staff where the evidence of the private scholarship could be located in the Institute computer system and how to obtain it. Those staff members encouraged Ms Newman to use another staff member's login details, without her permission, to access information confirming that the student had been awarded a private scholarship by the Institute.
Ms Newman made no attempt to conceal her actions and resigned from the Institute the following day.
[3]
The Plea
Ms Newman pleaded guilty at the earliest opportunity. In accordance with s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act"), the guideline judgement in R v Thomson; R v Houlten [2000] NSWCCA 309; 49 NSWLR 383 and the principles set out in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1, she is entitled to the maximum sentence discount of 25% for the utilitarian value of that early plea. The discount has affected the type of sentence I will impose but the resulting sentence will not again be reduced by reason of the discount: R v Lo [2003] NSWCCA 313.
[4]
Section 21A Considerations
Section 21A of the Act is set out as follows:
"21A Aggravating, mitigating and other factors in sentencing
(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law."
[5]
Objective Factors
It has been submitted to me by both the prosecution and the defence that the objective seriousness of the offence is at the lower end.
In support of this submission, the defence's submissions can be summarised as follows:
Ms Newman accepts that her access to details of the private scholarship on the Whitehouse computer was unauthorised and in breach of her employer's trust, however:
(a) She did not violate a highly secure data;
(b) She did not access highly sensitive data;
(c) Although the data was not in the public domain, it was not of a commercially sensitive nature or relating to the security of persons (such as a residential address or bank account details);
(d) The breach of trust is towards the lower end of the scale and can be contrasted with police officers who misuse the COPS system, bank or civil servants who authorise payments to their own accounts, or airline staff assisting in narcotics importation;
(e) No significant harm was caused; and
(f) No other aggravating factors are present.
I am of the view that the only aggravating factor that would apply in this case is under s 21A(2)(k) of the Act in relation to Ms Newman abusing her position of trust as an employee in the Institute. There are a number of mitigating factors under s 21A(3) that apply in this case, and I will deal with those factors in some detail when I turn to her subjective factors.
[6]
Subjective Factors
The defence rely on the following subjective factors:
a. Motivation;
b. Remorse;
c. Immaturity;
d. Mental health;
e. Good character; and
f. Extra-curial punishment.
1. Motivation. I accept that Ms Newman was motivated by a sense of injustice rather than a desire for personal notoriety, greed or any desire to embarrass the student. Whilst this may explain what lead up to her offending behaviour, it does not excuse her conduct.
2. Remorse. I accept that Ms Newman is remorseful and has shown this by writing a letter of apology to the student, resigning from the Institute and her early plea of guilty.
3. Immaturity. Ms Newman was only 20 years old at the time of this offence. She was still living at home with her parents. There is a long line of authorities that support the notion that emotional maturity, impulse control and the ability to weigh consequences is not fully developed until a person reaches their mid-twenties: BP v R [2010] NSWCCA 159 at [5] (Hodgson JA); MB v R [2013] NSWCCA 254 at [25] (Hoeben CJ at CL). I accept that Ms Newman's age was a mitigating factor.
4. Mental Health. I have been provided with a report by psychologist, Associate Professor Ross Menzies. I have made an order prohibiting the publication of the information contained in pghs 4 - 8, 17, 19, the third sentence of pghs 20 and 21. I have taken those matters into consideration and accept the opinion of A/Professor Menzies that Ms Newman's judgment and ability to weigh the consequences of her actions were to some extent impaired.
5. Good Character. Ms Newman has no previous convictions. I have been provided with testimonials from numerous referees attesting to her good character, her community involvement and charitable works. Ms Newman has very good prospects of rehabilitation.
6. Extra-curial Punishment. This case has attracted significant media attention. It is submitted by the defence that this attention has been very difficult for Ms Newman and that she has not been part of any of the campaigns that have sprung up around her other than to ask that they not conduct demonstrations in her name. I accept that the media attention has had a significant impact on Ms Newman's well-being as set out in the psychological report. It has been submitted by the defence that the level of media attention amounts to extra-curial punishment. I accept that the actions of the media can, in extreme cases, particularly if it amounts to harassment, be taken into account as extra-curial punishment: Church v R [2012] NSWCCA 149 at [34]. I do not consider that this is such a case. I do, however, take this factor into account insofar as the media attention has affected Ms Newman's mental health.
[7]
Sentencing
The purposes of sentencing are set out in s 3A of the Act, as follows:
"3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
The prosecution has submitted that although this offence is at the lower end, a conviction is required in this case to ensure that the sentencing purpose in subs (b) is met, that is, to prevent others from committing similar offences. This is also known as general deterrence.
Whilst the prosecution made no submissions in relation to subs (g), I also consider it relevant to give some weight to the recognition of the harm done to the victim of the crime and the community.
The victim of the offence is the owner of the "restricted data", the Institute. However, as was seen in this case, the access to restricted data impacts on those beyond the owner of the data, as data can include the personal information of others.
There is significant community concern about the use of personal information and unauthorised access. People can be harmed by such access.
The prosecution's submission in support of general deterrence was made in response to the defence submission that I should deal with this matter under s 10 of the Act.
This section allows a court to dismiss a charge without recording a conviction or to impose a good behaviour bond without recording a conviction. The decision to record or not to record a conviction is not a reflection on whether a person is guilty or not. This section is only applied when someone has been found guilty of an offence or pleaded guilty to an offence, as Ms Newman has done. It is part of the sentencing regime in NSW which provides a court with a wide discretion. The court notes that such wide discretion is appropriate given the range of behaviour that can be dealt with under s 308H(1) of the Crimes Act.
I have been referred to other sentencing cases under s 308H of the Crimes Act. There are 10 matters that are recorded in the Judicial Information Research System (JIRS). The sentences range from a dismissal pursuant to s 10(1)(a) of the Act, up to the imposition of community service orders in the most serious case involving a police officer accessing the COPS system.
I have also had regard to the JIRS statistics for s 478.1(1) of the Criminal Code (Cth) which is the Commonwealth equivalent to s 308H of the Crimes Act. Of the 11 cases where the offender had no priors and pleaded guilty, 6 (55%) were dealt with by way of a recognizance under s 19B of the Crimes Act 1914 (Cth), which is the Commonwealth equivalent to s 10(1)(b) of the Crimes Act. The most serious disposition was for one case which was dealt with by way of a community service order.
It has often been observed by the appellate courts that there is a limited utility in sentencing statistics, however what is clear is the significant range of penalties which have been applied. I must consider the appropriate penalty in the particular case before me.
For all the reasons I have set out above, I find that this case is towards the lowest end of the scale for offences under this section.
Having said that, I do, however, consider that there is a need for denunciation of the conduct of Ms Newman and the need to deter others from committing similar offences. I also consider there is a significant need to recognise the harm done to the community and individuals in the community that can be caused by this offence.
In addition there are many mitigating factors including the obvious remorse and acceptance of responsibility for the offence, the offender's young age and significant prospects of rehabilitation, and the other matters previously detailed.
I must consider, in this case, whether the purposes of sentencing and, in particular, the need to deter others, denounce the offence and recognise the harm done to the community, can be adequately met by dealing with this matter without recording a conviction.
It was recognised in R v Nguyen [2002] NSWCCA 183 at [50] that the capacity to dismiss charges under the predecessor to s 10 of the Act (being, s 556A of the Crimes Act) reflected the willingness of the legislature, and thus the community, to provide first offenders, in certain circumstances, a second chance to maintain a reputation of good character. In R v Ingrassia (1997) 41 NSWLR 447 at 449, the Court acknowledged that the "legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court" and the fact that a person is subject to these additional adverse consequences is a relevant consideration in the exercise of the statutory discretion.
An offender may be placed on a good behaviour bond with or without a conviction. A conviction is recorded against an offender under s 9 of the Act but it is not under s 10(1)(b). I am guided by the Court of Criminal Appeal's decision in R v Mauger [2012] NSWCCA 51. In that case, the accused pleaded guilty to the supply of 20 ecstasy tablets contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence was 15 years imprisonment. The case was a Crown appeal against the imposition of a s 10 bond pursuant to the Act for a period of two years.
The accused had no previous convictions and was a man of good character. As in this case, the Crown was not against the imposition of a good behaviour bond but submitted that there was a need for a conviction. As a "general proposition" the fact that a conviction is recorded is a matter of special significance. Harrison J at [38] stated, "[w]hilst that contention is understandable as a general proposition, it is important that it not be permitted to dilute or downgrade the significance of the imposition of a [s 10] bond". He went on to say, "[i]f the seriousness of the present offence and the need for denunciation and general deterrence are important considerations, they are to my mind more than adequately contemplated in this case by both the terms and the duration of the bond that has been imposed. The respondent has been made subject to a judicially sanctioned requirement that he be of good behaviour for a period of two years". He goes on to say that there are onerous consequences if an offender fails to comply with a s 10(1)(b) bond and it should not be assumed that because the court has decided not to record a conviction that the sentence is automatically inadequate or lenient.
As for whether I have the scope to exercise my discretion to dispose of the matter under s 10 of the Act, having regard to subs (3), I refer to the comments made by Basten JA in Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 at [10]:
"Properly understood, the court is not to 'have regard to' those factors, but to determine whether those factors exist. Finally, it seems that these are not in truth mandatory considerations, because par (d) includes 'any other matter that the court thinks proper to consider'. It is not meaningful to make that a mandatory consideration. Again the purpose is to ensure that the court considers the full range of factors it considers relevant."
I consider, having regard to the matters I have previously detailed, that in this case, the purposes of sentencing, as set out in s 3A of the Act, are properly and adequately achieved by the imposition of a conditional bond under s 10(1)(b).
[8]
Order
The offence is proved and the defendant is discharged on condition that she enter into a good behaviour bond for a period of two years pursuant to s 10(1)(b) of the Act.
Magistrate T O'Sullivan
Downing Centre Local Court
25 November 2014
********
[9]
Amendments
01 April 2015 - "The accused is convicted and discharged", replaced with "The offence is proved and the defendant is discharged" (Decision in Coversheet)
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: 01 April 2015