Citation: R v Michael Jason Cox; R v Sharon Patricia Lucas [2011] NSWDC 58
Court: District Court of New South Wales
Date: 20 May 2011
Judge(s): Judge P Lakatos SC
Background
In the early hours of 27 October 2008, two senior constables, Cox and Lucas, along with two colleagues (Brookes and Fletcher), unlawfully entered the premises of a man suspected of involvement in a break, enter and steal offence. Cox used a key taken from the suspect's wallet to access the property. Before entering, he made a false radio call claiming noises had been heard inside to justify the entry.
After the search, all four officers agreed to concoct a false account of events. Cox prepared a fabricated notebook entry claiming the front door had been found open and noises had been heard, which all four officers signed. They subsequently repeated this false account in official notebooks and statements, in anticipation of proceedings against the suspect in the Local Court.
Cox and Lucas appeared for sentence before Judge Lakatos. Their co-offenders, Brookes and Fletcher, had previously been sentenced by Judge Norrish to 18-month suspended sentences in 2010.
Legal Issues
- The appropriate sentence for each offender convicted under s 317(b) of the Crimes Act 1900 (fabricating false evidence with intent to mislead a judicial tribunal), carrying a maximum penalty of 10 years imprisonment.
- Whether the utilitarian discount for the guilty pleas (agreed at 25%) was appropriate given the matter originally proceeded toward trial on more serious charges.
- Whether the sentences for Cox and Lucas should be consistent with those imposed on their co-offenders, Brookes and Fletcher.
- Whether the personal circumstances of each offender, including the loss of employment and absence of prior criminal history, warranted a suspended sentence.
Decision
Judge Lakatos placed the offences in context by reference to the Wood Royal Commission's findings on "process corruption" in the NSW Police Service. His Honour made clear that the fabrication of evidence to cover unlawful police conduct strikes at the integrity of the justice system, and that the offending fell within a provision specifically directed at interference with the administration of justice.
On the question of parity, the court accepted that Cox and Lucas should be treated consistently with Brookes and Fletcher, who had received suspended sentences. To impose materially harsher sentences on Cox and Lucas in the same circumstances would give them a justifiable sense of grievance.
His Honour noted the agreed 25% utilitarian discount for the guilty pleas, observing that the pleas were entered at the earliest opportunity once the Crown accepted them on the lesser charge. The court found that both offenders had already suffered substantially through loss of employment and reputational damage, and were most unlikely to reoffend. In imposing suspended sentences, the court applied the remarks of Spigelman CJ in R v Nguyen, which acknowledged the "high sense of tragedy" associated with offending by individuals who would ordinarily be punctilious about their obligations.
Cox's sentence was slightly higher than Lucas's, reflecting the additional Form 1 matter and his greater role in orchestrating the cover-up, including preparing the false notebook entry and making the false radio call.
Orders Made
- Cox: convicted and sentenced to 2 years imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act on condition of entering a 2-year good behaviour bond (conditions: good behaviour throughout the period; appearance before the court if called upon). The Form 1 offence of neglect of duty under s 201 of the Police Act 1990 was taken into account.
- Lucas: convicted and sentenced to 18 months imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act on condition of entering an 18-month good behaviour bond (conditions: good behaviour throughout the period; appearance before the court if called upon).
Key Takeaways
- Fabricating evidence to cover an unlawful police entry, contrary to s 317(b) of the Crimes Act 1900, is treated as a serious offence within the public justice provisions of that Act, carrying a maximum of 10 years imprisonment.
- The District Court applied the parity principle to ensure Cox and Lucas were not sentenced more harshly than their co-offenders Brookes and Fletcher, who had received 18-month suspended sentences before a different judge.
- A 25% utilitarian discount was applied where guilty pleas were entered at the earliest opportunity after the Crown accepted a plea to a lesser charge, having initially proceeded toward trial on more serious matters.
- Under s 12 of the Crimes (Sentencing Procedure) Act, the court retained discretion to suspend sentences of imprisonment for offenders with no criminal history who were unlikely to reoffend, even in cases involving serious breaches of public trust.
- Substantial personal consequences already suffered by offenders, including loss of employment and reputational damage, were relevant mitigating factors in sentencing, consistent with principles affirmed in R v Nguyen and endorsed by Judge Lakatos in this decision.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 317(b)
- Police Act 1990 (NSW), s 201
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Cases:
- R v Hilder NSWCCA, unreported, 13 May 1992
- R v Bulliman NSWCCA, 25 February 1993
- R v Nomchong NSWCCA, 10 April 1997
- R v Chapman NSWCCA, unreported, 21 May 1998
- R v Pangallo (1993) 56 A Crim R 441
- R v Irwin [1999] NSWCCA 361
- R v Nguyen (2004) 149 A Crim R
- DPP v Aydogan and Gosper [2006] NSWSC 558
- Kenny v R [2010] NSWCCA
- Einfeld v R [2010] NSWCCA