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Court of Criminal Appeal 15 July 2003

R v Patison

[2003] NSWCCA 171

Also reported as (2003) 143 A Crim R 118
DrugsFraud & dishonestyPublic order & justice offences

Citation: R v Patison [2003] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 15 July 2003
Judge(s): Giles JA; Bell J; Carruthers AJ

Background

The respondent, a member of the NSW Police Service, pleaded guilty on 10 December 2002 to ten counts on indictment. The offences spanned the year 2000 and included soliciting and receiving bribes, failing to seize prohibited drugs during the execution of search warrants (with intent to pervert the course of justice), returning seized drugs and steroids to suspects, and participating in the supply of cannabis and heroin. A further twelve offences were taken into account on sentence pursuant to form 1 documents, including additional bribery counts and theft offences.

The sentencing judge, Dunford J in the Supreme Court, imposed a combination of fixed-term and head sentences with non-parole periods across the counts. The Director of Public Prosecutions brought a Crown appeal under s 5D of the Criminal Appeal Act 1912, arguing that the sentences imposed were manifestly inadequate.

  • Whether the sentences imposed by Dunford J were manifestly inadequate and therefore warranted appellate intervention.
  • Whether proper weight was given to the objective seriousness of the offending, including the sustained course of corrupt conduct by a serving police officer.
  • Whether mitigating factors, including the respondent's psychological state, potential post-traumatic stress disorder, guilty plea, and the hardship of serving a sentence in strict protection, were properly considered and could support the sentences imposed.

Decision

The Court of Criminal Appeal dismissed the Crown appeal, finding that the sentences imposed fell within the sentencing judge's proper discretionary range. Despite the Crown's submission that the offences were serious and numerous, the Court was not persuaded that the sentences were so inadequate as to constitute error warranting interference.

The Court acknowledged the significant mitigating features of the case. These included the respondent's guilty plea, the psychological evidence suggesting a history of trauma-related symptoms arising from his police work, and a psychologist's opinion that potential post-traumatic stress disorder may have made the respondent more vulnerable to corruption. The Court treated these matters as relevant to both moral culpability and the likely burden of imprisonment.

A further consideration was the conditions under which the respondent would serve his sentence. As a former police officer, the respondent was required to serve his sentence in strict protection, which imposes significantly more restrictive conditions and greater psychological stress than ordinary imprisonment. Consistent with established authority, the Court accepted that each year served in strict protection is the equivalent of a substantially longer period served in ordinary conditions.

Carruthers AJ, agreeing with the proposed orders, noted the persuasive arguments advanced by the Crown but ultimately concluded, taking into account all the relevant factors, that the sentencing judge's exercise of discretion was not attended by error.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that appellate interference with a sentence requires more than disagreement with the sentencing outcome; the sentence must fall outside the proper discretionary range.
  • A former police officer's need to serve a sentence in strict protection is a legitimate sentencing consideration, with established authority treating each year in strict protection as equivalent to a substantially longer period in ordinary custody.
  • Where psychological evidence suggests that trauma exposure during a person's working life may have contributed to criminal behaviour, this can be relevant to assessing moral culpability at sentence.
  • The combination of a guilty plea, psychological vulnerability, and the particular hardship of imprisonment for a former police officer can, taken together, support a sentence that might otherwise appear lenient given the objective gravity of sustained corrupt conduct.
  • No single mitigating factor was determinative; the Court's conclusion rested on the cumulative weight of several factors operating together to bring the sentence within the permissible range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 249B, 315, 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Police Service Act 1990 (NSW), s 200

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- King (1985) 82 Cr App R
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v AEM [2002] NSWCCA 58
- R v Barton (2001) 121 A Crim R 185
- R v Hammoud (2000) 118 A Crim R 66
- R v Hilder (CCA, 13 May 1993, unreported)
- R v Irwin [1999] NSWCA 361
- R v Kear (1978) 2 CLJ 42
- R v Nomchong (CCA, 10 April 1997, unreported)
- R v Pangallo (1991) 56 A Crim R 441
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Winchester v The Queen (1992) 58 A Crim R 345