Citation: R v Purcell [2010] NSWDC 98
Court: District Court of New South Wales
Date: 2 June 2010
Judge(s): Berman SC DCJ
Background
The offender was a Superintendent of Police and Commander of the Hurstville Local Area Command in late 2006. He was considered a highly regarded officer with prospects of promotion to Assistant Commissioner. By the time of sentencing, he had left the police force and was working as a hotel manager, suffering from a chronic adjustment disorder.
The sentencing proceedings addressed two separate criminal matters. First, following a sexual assault on two children in a public park in October 2006, the offender deliberately and repeatedly disclosed information to journalists and others in direct contravention of a direction from his Regional Commander. Second, in April 2007, while giving evidence at a Police Integrity Commission (PIC) hearing into unrelated matters in the Eastern Suburbs Command, the offender gave evidence that was, in his own concession, misleading.
The offender pleaded guilty to both offences: a common law offence of misconduct in a public office, and the statutory offence of giving misleading evidence at a PIC hearing.
Legal Issues
- What was the appropriate sentence for the common law misdemeanour of misconduct in a public office, given that the offender's motivation appeared to be to warn the public rather than to benefit himself?
- What was the appropriate sentence for misleading the Police Integrity Commission, given that the offender's evidence was literally true but concededly misleading, and that he later took steps to correct the record?
- Whether either offence warranted a term of imprisonment, given the offender's personal circumstances, the nature of his conduct, and his efforts toward rehabilitation.
Decision
On the misconduct in a public office charge, the court found that the offender had flagrantly disobeyed a clear direction from his superior officer by repeatedly disclosing to media and others that police believed they were dealing with a serial child offender. The court accepted, however, that the offender had no corrupt or financial motive; his stated intention was to warn the community. The court noted that the conduct most closely resembled a breach of section 201 of the Police Act 1990, an offence carrying only a fine as its maximum penalty, and that imprisonment was therefore not appropriate.
On the PIC misleading evidence charge, the court drew a distinction between giving outright false evidence and giving evidence that was technically truthful but deliberately framed to mislead. The court accepted that the offender had taken steps, through his solicitor, to bring the true position to PIC's attention shortly after the hearing, though those efforts were ultimately unsuccessful through no fault of the offender. These factors weighed against full-time custody, which Berman SC DCJ acknowledged would ordinarily be considered for an offence of this kind involving a police officer.
The court gave weight to the offender's guilty pleas, his prior unblemished record, the significant personal consequences he had already suffered including the loss of his career and the development of a chronic mental health condition, and the considerable period of uncertainty he had endured between commission of the offences and being charged. A community service order was imposed for the PIC offence, and a fine for the public office misconduct.
Orders Made
- For the common law offence of misconduct in a public office: fined $2,000.
- For the offence of giving misleading evidence at a PIC hearing: 200 hours of community service.
- The offender was directed to report to the Hurstville office of NSW Probation and Parole Service within seven days.
Key Takeaways
- The District Court confirmed that misconduct in a public office, as a common law misdemeanour, does not always attract imprisonment, particularly where the offender's motivation was not personal gain and the conduct's closest statutory equivalent carries only a fine.
- Misleading a statutory integrity body such as the Police Integrity Commission is treated seriously, and the court acknowledged that full-time custody would ordinarily follow for a police officer who does so. However, the fact that the evidence given was technically true (though framed to mislead), combined with steps taken to correct the record, placed this case outside the ordinary range.
- A distinction exists, relevant to sentencing, between giving outright false evidence to an integrity commission and giving evidence that is literally accurate but deliberately misleading in its overall effect.
- Significant collateral consequences, including career loss, reputational damage, and diagnosed mental illness arising from prolonged uncertainty, formed part of the sentencing calculus and contributed to the court's decision to impose non-custodial penalties.
- Where a common law offence and a related statutory offence are charged together, the jurisdiction of the court may be determined by the common law charge alone, even where the statutory offence could have been dealt with summarily in a lower court.
Legislation and Cases Referenced
Legislation
- Police Act 1990 (NSW), s 201
Cases
- Ryan v The Queen (2001) 206 CLR 267