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Court of Criminal Appeal 23 July 2013

Blackstock v Regina

[2013] NSWCCA 172

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW APPEAL SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Blackstock v Regina [2013] NSWCCA 172
Court: Court of Criminal Appeal, NSW
Date: 23 July 2013
Judge(s): Macfarlan JA, Campbell J, Barr AJ

Background

The appellant was a public officer who pleaded guilty in the Local Court, at the first available opportunity, to the common law offence of misconduct in public office. He also pleaded guilty to three counts of making a false statement to obtain money under the Crimes Act 1900 (NSW), one count of giving false evidence at an ICAC inquiry, and had further related offences taken into account on Form 1 documents.

In the District Court, Judge Woods QC sentenced the appellant to a total effective term of three years and six months imprisonment, with a non-parole period expiring in August 2015. The misconduct in public office sentence carried a non-parole period of three years, running entirely cumulative on the false evidence sentence.

The appellant sought leave to appeal against the misconduct in public office sentence only, on the single ground that it was manifestly excessive. All other grounds were abandoned.

  • Whether the sentence for the common law offence of misconduct in public office was manifestly excessive.
  • Whether the maximum penalty for a statutory analogue offence operates as a legal cap on sentences for the common law offence, or merely as a reference point.
  • Whether the sentencing judge overstated the objective seriousness of the offending, or impermissibly treated an element of the offence as a separate aggravating factor.

Decision

The statutory analogue as a reference point only. Campbell J confirmed that misconduct in public office is a common law offence carrying no fixed maximum penalty. Following the approach in Jaturawong v Regina, the appropriate reference point is the penalty structure under Part 4A of the Crimes Act, which sets a maximum of seven years for corruption-related offences. However, Campbell J held that this reference point does not fetter the sentencing discretion. The decision in R v Hokin, Burton and Peisley (1922) was examined at length and found to support the proposition that the statutory analogue operates as a guide only, not as a legal ceiling. In that earlier case, the Court itself had re-sentenced the principal offender to a term exceeding the statutory analogue by 50 per cent.

No error in assessing objective seriousness. Campbell J found no error in the sentencing judge's assessment of the seriousness of the offending. The misconduct involved an abuse of a trusted public position, was deliberate and premeditated, and extended over a significant period. The court noted that general deterrence carries particular weight in offences involving breach of public trust, given the difficulty in detecting such misconduct and the real likelihood that much similar offending is never discovered.

Mitigating factors acknowledged but limited. The court acknowledged the appellant's early guilty plea and the substantial reparation made. However, it held that reparation carries limited mitigating weight in cases of this kind, noting that the absence of reparation would have been an aggravating feature. The court also found that the appellant's previous good character was of reduced mitigating value, as the offending was only possible because of the trust that good character had generated. The sentence was held to fall within the available range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • For common law offences with no fixed maximum, the penalty for a statutory analogue offence provides a reference point for sentencing but does not impose a legal cap on the term that may be imposed.
  • The Court of Criminal Appeal confirmed, drawing on R v Hokin, Burton and Peisley, that a court may in appropriate circumstances sentence above the maximum for the statutory analogue, and that the discretion remains truly "at large."
  • In offences involving serious breach of public trust, general deterrence is a weighty sentencing consideration, particularly where such misconduct is difficult to detect and may often go undiscovered.
  • Reparation is of limited mitigating value in trust-abuse offences: as the court noted, the absence of reparation would itself constitute an aggravating factor, meaning its presence carries reduced positive weight.
  • Previous good character carries diminished mitigating weight where the offending was only made possible by the position of trust that the offender's good character had earned them.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 178BB and Part 4A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Jaturawong v Regina [2011] NSWCCA 168
- R v Hokin, Burton and Peisley (1922) 22 SR (NSW) 280
- R v Mungomery [2004] NSWCCA 450; 151 A Crim R 376
- R v El-Rashid (NSWCCA, unreported, 7 April 1995)
- Phelan v R (1993) 66 A Crim R 446
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- R v Quach [2010] VSCA 106; 27 VR 310
- Attorney General's Reference (No 3 of 2003) [2004] EWCA Crim 868
- Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381
- Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63
- R v Hawkins (1989) 45 A Crim R 430
- R v Bembridge (1783) 3 Dougl 327