Citation: R v Phillip William Smith [2011] NSWDC 38
Court: District Court of New South Wales
Date: 14 April 2011
Judge: Judge Walmsley SC
Background
In September 2007, a Corrective Services employee was stopped at a roadside breath test in Moree and recorded a reading of .095. He was arrested and taken to the Moree Police Station for a formal breath analysis on the BAS instrument. After a series of phone calls from senior figures in both the police service and the Department of Corrective Services, the duty supervisor at the station that night, a Senior Constable acting as Sergeant, took matters into his own hands.
Rather than testing the arrested man on the BAS, the offending officer blew into the instrument himself, producing a nil reading. A receipt was then issued falsely recording that the Corrective Services employee had returned no alcohol reading. A junior constable at the scene, who had felt pressured throughout, also entered a false home address into the COPS system.
When investigators from the Police Integrity Commission became involved, the offender initially lied to them, denied blowing into the machine, and made approaches to colleagues in apparent attempts to discourage them from cooperating. He eventually made admissions in an induced interview in April 2008 and gave truthful evidence before the Police Integrity Commission in May 2008. He pleaded guilty to one count of attempting to pervert the course of justice under s 319 of the Crimes Act 1900.
Legal Issues
- What sentence was appropriate for a police officer who substituted his own breath sample to generate a false nil reading on an official breath analysis instrument?
- How should the court treat the offender's subjective circumstances, including the pressure he faced from senior figures and his eventual cooperation?
- What effect, if any, should a lengthy and unexplained delay of approximately three years between the offender's admissions and sentencing have on the sentence imposed?
- Should the sentence of imprisonment be suspended?
Decision
Judge Walmsley SC identified the offence as serious on its face. A police officer in a supervisory role had deliberately corrupted an official record and caused the release of a person who should have been charged with a mid-range drink-driving offence. The offence struck at the integrity of breath testing procedures and the police service itself. The maximum penalty under s 319 of the Crimes Act is fourteen years imprisonment.
The court accepted a number of mitigating factors. The offender had no prior criminal history, had served in the police force for approximately twenty years, and had committed the offence in response to pressure from people senior to him in both the police service and corrections. He had no personal interest in the outcome and had not initiated the scheme. His cooperation with the Police Integrity Commission and his eventual guilty plea were also weighed in his favour. The court was not, however, fully satisfied as to his contrition, given that he had initially lied to investigators.
The court identified the delay in prosecution as a significant sentencing consideration. More than three years had passed between the offender's admissions in April and May 2008 and his appearance for sentencing in April 2011. The delay was lengthy and unexplained, and the court found that the offender had suffered as a result of it. Under the principles discussed in cases such as R v Way, undue delay in prosecution can warrant a reduction in the sentence ultimately imposed.
Having weighed objective criminality against subjective factors and the delay, Judge Walmsley SC imposed a term of fifteen months imprisonment. The judge then suspended that sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, specifically by reason of the prosecution delay. The court noted that the fact of suspension, understood in its context, would itself operate as a sufficient deterrent to both the offender and the public.
Orders Made
- The offender was convicted of one count of attempting to pervert the course of justice.
- Sentenced to fifteen months imprisonment.
- Execution of the sentence suspended for the term of the sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999.
- Released on a good behaviour bond for the term of the sentence, subject to the following conditions:
- To appear before the court if called upon to do so.
- To be of good behaviour.
- To notify the registrar of the Criminal Listing Directorate at Moree of any change of residential address.
- To accept supervision and guidance from the NSW Probation and Parole Service at Tamworth and obey all directions of that service.
- To report to the Probation and Parole Service at Tamworth within seven days (by 20 April 2011).
Key Takeaways
- A conviction for attempting to pervert the course of justice under s 319 of the Crimes Act 1900 carries a maximum penalty of fourteen years imprisonment, reflecting the serious public interest in the integrity of official processes, including breath testing.
- Where a police officer commits the offence in response to pressure from senior figures and without personal gain, those circumstances can be treated as mitigating, though they do not excuse the conduct.
- Unjustified and prolonged delay by prosecuting authorities in bringing a matter to sentence is a recognised basis for reducing or modifying a sentence. Here, a delay of approximately three years between the offender's admissions and sentencing justified suspension of an otherwise appropriate custodial term.
- The District Court treated the suspension itself as a meaningful and communicable outcome, observing that the public understanding of why the sentence was suspended would fulfil a general deterrence function.
- Where a co-offender is sentenced in a different court at a lower level of jurisdiction for a related offence, parity issues may arise but are not automatically engaged. In this case, neither the Crown nor defence pressed a parity argument arising from the junior constable's bond and fine.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 319 (attempt to pervert the course of justice)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12
Cases
- Marinellis v The Queen [2006] NSWCCA 307
- Taylor v The Queen [2007] NSWCCA 99
- R v Blanco (1999) 106 A Crim R 303
- R v Christie (Unreported, District Court of New South Wales, Conlon J, 6 August 2010)
- R v Nguyen (2004) 149 A Crim R 343
- R v Nomchong (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Hunt CJ, McInerney, Sully JJ, 10 April 1997)
- R v Way (2004) 60 NSWLR 168