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Court of Criminal Appeal 28 April 2005

Regina v O'Mally

[2005] NSWCCA 166

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE POLICE OFFICER SOLICITING BRIBE SIMILAR OFFENCE ON FORM 1 PLEA OF GUILTY SENTENCE NO SENTENCING ERROR OTHERWISE

Citation: Regina v O'Mally [2005] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 28 April 2005
Judge(s): Stein AJA, Grove J, Howie J

Background

The applicant was a senior constable of police who pleaded guilty to soliciting a bribe under s 200(1) of the Police Act 1990. The charge arose from an incident in January 2004 in which he stopped a 17-year-old provisional licence holder on the F3 freeway, then leveraged the traffic stop to solicit a quad bike in exchange for issuing a minor infringement notice rather than a speeding penalty that would have affected the young driver's licence.

A second, similar incident from late 2003 was taken into account on a Form 1. In that matter, the applicant had stopped a disqualified truck driver who gave a false name. The situation ultimately led to the applicant receiving excavation work worth over $1,100 from an earthmoving company whose trucks were connected to the disqualified driver, with the work effectively obtained under the implied threat that the company's vehicles might otherwise attract police attention.

The District Court sentenced the applicant to two years' imprisonment with a non-parole period of 16 months. He applied for leave to appeal against severity of sentence, contending that the sentence was manifestly excessive and affected by legal error.

  • Whether the sentence of two years' imprisonment was manifestly excessive for the primary offence, taking into account the Form 1 matter
  • Whether the sentencing judge failed to give proper weight to unchallenged psychological and medical evidence tendered on behalf of the applicant
  • Whether the sentencing judge erred by relying on earlier authorities involving a different and more serious offence carrying a higher maximum penalty
  • Whether the sentencing judge erred by not expressly rejecting the submission that the term of imprisonment should be suspended

Decision

The Court granted leave to appeal but dismissed the appeal, finding no error in the sentence imposed.

On the psychological and medical evidence, Grove J found that the sentencing judge had clearly considered the material from the general practitioner and psychologist, and gave it appropriate weight. The judge's conclusion that the applicant's conditions did not meaningfully explain or excuse the offences was open to him, given that each offence involved deliberate and sustained conduct over several weeks rather than a spontaneous act.

On the reliance on sentencing authorities involving s 319 of the Crimes Act 1900 (which carries a maximum of 14 years), Grove J accepted that those cases involved a more serious offence than the one before the court. However, he was not persuaded that the sentencing judge had misapplied those authorities in a way that produced error in the actual sentence.

On the suspension point, the Court held that the judge's remark that the only way to ensure adequate punishment was a term of imprisonment clearly implied a rejection of any submission for a suspended sentence. No express refutation was required. The sentence overall fell well within the range of the sound exercise of sentencing discretion.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's obligation regarding tendered psychological or medical evidence is to take it into account and give it appropriate weight; there is no error simply because the judge declines to treat such material as fully explaining or excusing deliberate, premeditated conduct.
  • Reliance on sentencing authorities involving a different statutory offence is not necessarily an error, provided the actual sentence imposed falls within the proper range for the offence charged.
  • Under the Form 1 procedure, an offence taken into account is not treated as a second charge; it is considered in the sentencing exercise in accordance with established principles from cases such as R v Thomson & Houlton.
  • No error arises from a sentencing judge's failure to expressly articulate the rejection of a submission for a suspended sentence, where the remarks on sentence make the rejection plain by necessary implication.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a two-year term with a 16-month non-parole period was within the proper range for a serving police officer who engaged in sustained bribery and extortion of members of the public during the exercise of his duties.

Legislation and Cases Referenced

Legislation:
- Police Act 1990 (NSW), s 200(1)
- Crimes Act 1900 (NSW), s 319

Cases:
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146
- R v Nomchong (unreported, NSWCCA, 10 April 1997)
- R v Pangallo (1991) 56 A Crim R 441
- R v Thomson & Houlton (2000) 49 NSWLR 383