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Local Court 19 June 2009

R v Gregory John BROWN

[2009] NSWLC 9

Public order & justice offences
CRIMINAL LAW SENTENCE DISCOUNT FOR GUILTY PLEA IMPORTANCE OF GENERAL DETERRENCE LESS WEIGHT GIVEN TO GOOD CHARACTER WHETHER SUSPENDED SENTENCE APPROPRIATE

Citation: R v Gregory John Brown [2009] NSWLC 9
Court: Local Court of New South Wales
Date: 19 June 2009
Judge(s): Chief Magistrate G L Henson

Background

The offender was a police officer charged with knowingly giving false evidence to the Police Integrity Commission (PIC) on 4 December 2006, during a private hearing as part of an investigation called Operation Salzburg. He was asked about his knowledge of a fellow officer's interest in acquiring a brothel. Despite the Commission already having intercepted communications that demonstrated his awareness, the offender repeatedly denied any knowledge under oath.

The Director of Public Prosecutions initially filed five charges under the Police Integrity Commission Act 1996. On 16 September 2008, the offender pleaded not guilty to all five. The matter was listed for a 2.5-day special fixture commencing 11 March 2009.

On the first day of the hearing, the prosecution amended the indictment to consolidate the conduct into a single charge, reflecting the view that the false answers constituted a continuous course of conduct rather than five discrete offences. The offender then pleaded guilty to that single charge, and the remaining four counts were withdrawn.

  • Whether the guilty plea was entered at the "first reasonable opportunity" for the purposes of the sentencing discount under section 22 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the offender's status as a police officer constituted an aggravating circumstance
  • What weight should be given to the offender's good character in light of his professional role
  • Whether a suspended sentence was appropriate in the circumstances
  • Whether extra-curial punishment (consequences suffered outside the formal legal process) and family hardship were relevant to sentence
  • Whether the hardship arising from likely protective custody in prison warranted a finding of special circumstances, justifying an alteration to the relationship between the head sentence and the non-parole period

Decision

Guilty plea discount: Chief Magistrate Henson rejected the submission that the plea was entered at the first reasonable opportunity. The offender had pleaded not guilty at the outset, confirmed that plea on multiple occasions, and maintained it through to the first day of the hearing. The court found no substantive change in the nature of the charge that could explain or excuse the delay. Consistent with the principles in R v Dib, R v Harmouche, and R v Stamboulis, only a reduced discount was applied to reflect the limited utilitarian value of a late plea.

Aggravation and general deterrence: The offender's position as a police officer was treated as a circumstance of aggravation. The court emphasised that police officers are entrusted with powers that depend on the public's confidence in their integrity. Giving false evidence to an anti-corruption body strikes directly at that confidence. General deterrence was therefore accorded significant weight in the sentencing exercise.

Good character, extra-curial punishment, and family hardship: Reduced weight was given to the offender's otherwise good character, on the basis that good character is an implicit expectation of a police officer rather than a factor that substantially diminishes culpability in this context. The court acknowledged extra-curial consequences, including loss of employment and reputational damage, and accepted that family hardship was a real consideration. However, neither was treated as a basis for reducing the sentence below a level commensurate with the seriousness of the offence. A suspended sentence was not regarded as appropriate.

Protective custody and special circumstances: The court accepted that the offender, as a former police officer, would in all likelihood be held in protective custody during any period of imprisonment. Drawing on the observations of Kirby J in AB v The Queen (1999) 198 CLR 111, and findings in R v Patison (2006) 143 A Crim R 118, the court found that protective custody represents a significantly harsher form of imprisonment than ordinary conditions. This constituted special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, warranting a reduction of the statutory non-parole period from 6 months and 1 day to 4 months. The court was careful to note that this adjustment did not reduce the overall head sentence and did not involve a mechanical formula.

Orders Made

  • The offender is sentenced to imprisonment for a period of 8 months and 2 days.
  • A non-parole period of 4 months commences forthwith, expiring on 18 October 2009.
  • The balance of 4 months and 2 days is the parole period, commencing 19 October 2009 and expiring 20 February 2010.

Key Takeaways

  • A guilty plea entered on the first day of a scheduled hearing, following an unequivocal not guilty plea and no substantive change to the charge, does not qualify as a plea entered at the "first reasonable opportunity" and attracts only a reduced sentencing discount.
  • A police officer who gives false evidence to an anti-corruption body occupies an aggravated position at sentence: the breach of public trust inherent in that role justifies heightened weight on general deterrence.
  • Good character carries diminished mitigating force where professional integrity is an intrinsic requirement of the offender's role, particularly in cases involving dishonesty in an official capacity.
  • Where a sentencing court finds that a former police officer will, in all likelihood, serve time in protective custody, that hardship may constitute special circumstances justifying a departure from the standard non-parole period ratio, without necessarily reducing the head sentence.
  • Extra-curial consequences and family hardship are relevant considerations in the sentencing exercise, but they do not, of themselves, displace the requirement that a sentence reflect the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 60(1), 154A(1)(a), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 12, 21, 21A, 22, 44(2)
- Criminal Procedure Act 1986 (NSW), s 268
- Police Integrity Commission Act 1996 (NSW), s 107

Cases:
- AB v The Queen (1999) 198 CLR 111
- R v Ahmad [2006] NSWCCA 117
- R v Aristodemou (Unreported) NSWCCA
- R v Bulliman (Unreported) CCA, 25 February 1993
- R v Chapman (Unreported) 21 June 1998
- R v Dib [2003] NSWCCA 117
- R v Doan (2000) 50 NSWLR 115
- R v Douar (2005) 159 A Crim R 154
- R v Einfeld [2009] NSWSC 119
- R v Hallicoglu (1992) 29 NSWLR 67
- R v Harmouche [2005] NSWCCA 398
- R v Jones and Kelly (1985) 20 A Crim R 142
- R v Kennedy [2000] NSWCCA 527
- R v Mostyn [2004] NSWCCA 97
- R v Nguyen (2004) 149 A Crim R 343
- R v Patison (2006) 143 A Crim R 118
- R v Stamboulis [2006] NSWCCA 56
- R v Zamagias [2002] NSWCCA 17