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District Court 16 April 2010

R v Fletcher R v Brookes

[2010] NSWDC 208

Public order & justice offences
CRIME SENTENCING POLICE OFFICERS

Citation: R v Fletcher; R v Brookes [2010] NSWDC 208
Court: District Court of New South Wales
Date: 16 April 2010
Judge(s): Norrish QC DCJ

Background

Two serving Senior Constables of Police, Fletcher and Brookes, were charged with fabricating false evidence with intent to mislead a judicial tribunal, contrary to s 317(b) of the Crimes Act 1900. The charges arose from events in Wagga Wagga between October 2008 and February 2009, in the context of criminal proceedings against a man named Matthew Prowse.

In the early hours of 27 October 2008, police attending a stolen vehicle investigation came to hold a mobile phone belonging to Prowse. Officers, including Brookes and Fletcher, observed on that phone a photograph of a flat-screen television. When police later attended the home of Prowse's father and saw what appeared to be the stolen television through the window, a group of four officers, including the two offenders, returned to the premises. According to the agreed facts, a decision was then made among the officers to use a key found in Prowse's wallet to enter the house, and a false radio call was fabricated to create the appearance that a lawful basis for entry existed.

The fabricated evidence was introduced into criminal proceedings against Prowse in the Local Court. Both officers pleaded guilty and came before Norrish QC DCJ for sentencing.

  • What sentence was appropriate for two police officers who fabricated false evidence with intent to mislead the Local Court, in breach of s 317(b) of the Crimes Act 1900?
  • Whether a suspended term of imprisonment was appropriate in the circumstances, having regard to the objective seriousness of the offence, the offenders' roles, and the relevant sentencing principles.
  • How the conduct of these offenders compared to that of co-offenders and to comparable decided cases involving police misconduct of this kind.

Decision

Norrish QC DCJ sentenced both Fletcher and Brookes to imprisonment for one year and six months, with execution of each sentence suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. Both offenders were released on good behaviour bonds for the term of the sentence, subject to supervision by the NSW Probation and Parole Service.

The offence carried a maximum penalty of ten years imprisonment, reflecting its seriousness. The court assessed the gravity of deliberately fabricating evidence to subvert the integrity of judicial proceedings, particularly where the offenders were sworn police officers who held a special obligation to uphold the law.

In comparing the sentences to other authorities, the court noted a prior District Court appeal decision involving a police officer who fabricated evidence to cover up an assault on a disabled woman. The court observed that the conduct in that case could be considered more serious than the conduct before it, yet the sentence imposed there was a suspended nine-month term. The court took that comparison into account, while recognising that the earlier matter had been dealt with summarily, which constrained the available penalty.

The court distinguished the roles and relative culpability of the various officers involved, noting that while seniority was formally relevant, in practical terms it was of little significance in comparing the conduct of Fletcher and Brookes to that of their co-offenders.

Orders Made

Both Fletcher and Brookes received identical orders:

  • Convicted of fabricating false evidence with intent to mislead a judicial tribunal, contrary to s 317(b) of the Crimes Act 1900
  • Sentenced to imprisonment for one year and six months
  • Execution of the sentence suspended for the full term under s 12 of the Crimes (Sentencing Procedure) Act 1999
  • Released from custody on a good behaviour bond for the term of the sentence, on the following conditions:
  • Appear before court if called upon at any time
  • Be of good behaviour
  • Notify the Registrar of the District Court at Wagga Wagga of any change of residential address
  • Accept supervision and guidance of the NSW Probation and Parole Service at Wagga Wagga (or such other place as approved) for such time as the service deems necessary
  • Report to the Probation and Parole Service office within seven days of the sentencing date

Key Takeaways

  • Fabricating false evidence with intent to mislead a judicial tribunal under s 317(b) of the Crimes Act 1900 carries a maximum penalty of ten years imprisonment, reflecting the legislature's view of the offence's seriousness.
  • Police officers who fabricate evidence occupy a position of particular culpability, given their sworn obligation to uphold the law and the damage such conduct causes to public confidence in the justice system.
  • A suspended term of imprisonment remained available to the sentencing court even for this category of offence by serving police officers, where the circumstances and the offenders' individual characteristics supported that outcome.
  • The District Court drew a meaningful comparison with DPP v Aydogan and Gosper, noting that fabricating evidence to conceal a direct assault on a civilian by police was assessed as more serious conduct than the fabrication of a false radio call to justify entry to premises, though the earlier matter's summary origins constrained its sentencing range.
  • Where multiple officers participated in the same offending, the court assessed each offender's role and relative culpability individually, treating seniority as a factor of limited practical weight on the particular facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 317(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases:
- DPP v Aydogan and Gosper [2006] NSWSC 558
- The Queen v Edwards (1996) 90 A Crim R 510
- R v Bednarz [2000] NSWCCA 53
- R v Pangallo (unreported, NSWCCA, 3 August 1999)
- R v Bulliman (unreported, NSWCCA, 25 February 1993)
- R v Nomchong (unreported, NSWCCA, 10 April 1997)
- R v Irwin [1999] NSWCCA 361
- R v Harrigan [2005] NSWCCA 449
- R v Nguyen (2004) 149 ACR 343
- R v Chapman (unreported, NSWCCA, 21 May 1998)
- Fahs v R [2007] NSWCCA 26
- Douar v The Queen (2005) 159 A Crim R 154
- Dinsdale v The Queen (2000) 202 CLR 321
- Kutchera v The Queen [2007] NSWCCA 121