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8
Court of Criminal Appeal 12 October 1999

REGINA v IRWIN

[1999] NSWCCA 361

Fraud & dishonestyPublic order & justice offences
CROWN APPEAL INADEQUACY OF SENTENCE GIVE FALSE EVIDENCE BRIBERY POLICE CORRUPTION.

Citation: [1999] NSWCCA 361
Court: Court of Criminal Appeal, New South Wales
Date: 12 October 1999
Judge(s): Newman J, Studdert J, Hulme J

Background

The respondent was a Detective Sergeant in the NSW Police Service who had maintained a long-standing friendship with a known drug dealer. When police executed a search warrant in July 1997 and seized over three kilograms of amphetamines, the drug dealer sought the respondent's help to suppress fingerprint evidence linking him to the seized items.

The respondent facilitated a corrupt arrangement involving another detective sergeant, who in turn approached an undercover officer (whose identity was suppressed by court order) and offered $5,000 to have fingerprint evidence destroyed. The undercover officer, acting with the knowledge and approval of his superiors, played along without actually tampering with any evidence.

The respondent was subsequently called before the Police Integrity Commission, where he gave a sustained series of false answers. He pleaded guilty to inciting the tampering with seized items with intent to pervert the course of justice, and to knowingly giving false evidence before the Commission. The sentencing judge in the District Court imposed a minimum term of twelve months on the first count and a concurrent fixed term of twelve months on the second count. The Crown appealed on the ground that these sentences were manifestly inadequate.

  • Whether the sentences imposed by the District Court were so manifestly inadequate as to warrant appellate intervention under section 5D of the Criminal Appeal Act 1912.
  • Whether the sentencing judge erred by making unsupported factual findings that mitigated the respondent's culpability, specifically that the drug dealer had "seduced" the respondent and that the respondent had been rendered vulnerable by his wife's death.
  • What weight general deterrence should carry in sentencing for police corruption and for giving false evidence before the Police Integrity Commission.

Decision

The Court of Criminal Appeal unanimously upheld the Crown appeal, finding the original sentences manifestly inadequate. The majority (Newman J, with Studdert J agreeing) substituted a minimum term of three years on the first count, with an additional term of one year, and a concurrent fixed term of two years on the second count.

Hulme J agreed the appeal should be upheld but would have imposed even heavier sentences. In his view, the respondent's position as a senior detective, the gravity of his attempt to corrupt fellow officers, and his willingness to assist a drug dealer escape prosecution together demanded a minimum term of at least five years on the first count alone.

All members of the Court identified errors in the sentencing judge's reasoning. The sentencing judge had found, without evidentiary support, that the drug dealer had manipulatively exploited the respondent and that the respondent's grief over his wife's death had made him vulnerable to that influence. The respondent had not given evidence at the sentencing hearing, and no other evidence substantiated those conclusions. The Court held these factual findings were unjustified and had improperly reduced the sentence.

On the second count, the Court emphasised that giving false evidence before the Police Integrity Commission is a serious aggravation of underlying criminality. The Commission's ability to investigate misconduct depends on witnesses telling the truth, and Parliament's enactment of a maximum five-year penalty was intended to encourage candour, including from those who have already offended. General deterrence was identified as the paramount sentencing consideration for this class of offence.

Orders Made

  • Crown appeal upheld.
  • Sentence imposed by Judge Woods QC quashed.
  • First count (act with intent to pervert the course of justice): minimum term of three years, commencing 27 April 1999 and expiring 26 April 2002; additional term of one year, commencing 27 April 2002 and expiring 26 April 2003.
  • Second count (giving false evidence before the Police Integrity Commission): fixed term of two years, commencing 27 April 1999 and expiring 26 April 2001, to be served concurrently.
  • The confiscation order of $8,220 made at first instance was not disturbed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that general deterrence carries particular weight in sentencing police officers for corruption offences, noting that findings from the recent Royal Commission demonstrated insufficient deterrence had existed in New South Wales.
  • Unsupported mitigatory findings at sentencing constitute an error of principle. Where a respondent gives no evidence and no other compelling material supports a finding of personal vulnerability or manipulation, a sentencing judge cannot rely on those factors to reduce a sentence.
  • Giving false evidence before the Police Integrity Commission warrants separate and additional punishment, not merely a concurrent term, because Parliament specifically enacted that offence to encourage candour even from those who have already committed misconduct.
  • A sentence of twelve months minimum term for a senior police officer who orchestrated the corruption of colleagues to suppress drug evidence, against a statutory maximum of fourteen years, was characterised by Hulme J as "derisory."
  • On Crown appeals, the Court of Criminal Appeal applies the principle that the sentence substituted should reflect the bottom of the range that should have been imposed at first instance, rather than the midpoint or higher.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act (NSW), s 319 (act with intent to pervert the course of justice; maximum 14 years)
- Police Integrity Commission Act (NSW), s 107 (false evidence; maximum 5 years or 200 penalty units)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 24

Cases:
- Griffith v The Queen (1977) 137 CLR 293
- R v Pangallo (1991) 56 A Crim R 441
- Ibbs v The Queen (1991) 163 CLR 447
- R v Nomchong, Court of Criminal Appeal (unreported, 10 April 1997)
- R v Aristodemou, Court of Criminal Appeal (unreported, 30 June 1994)