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Court of Criminal Appeal 3 December 2013

Jansen v Regina

[2013] NSWCCA 301

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL FURTHER OFFENCES ON FORM 1 RELATED OFFENCES ON S166 CERTIFICATE OFFENDER WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Jansen v Regina [2013] NSWCCA 301
Court: NSW Court of Criminal Appeal
Date: 3 December 2013
Judge(s): Basten JA, Price J, Campbell J

Background

The appellant was a serving NSW Police officer who pleaded guilty to one count of misconduct in public office. His offending involved two main strands: accessing and disseminating highly sensitive police intelligence to an acquaintance over a period spanning late February to early March 2011, and falsifying computerised timesheets on six occasions to conceal unauthorised absences from duty for personal activities including attending the gym and inspecting a motorcycle.

The dissemination of intelligence was solicited by a co-offender, who passed the printed documents to a third party for further distribution. On one occasion alone, 189 pages of police intelligence were handed over, naming offenders, persons of interest, police officers, and sources. Six additional offences were taken into account on a Form 1, including forged medical certificates to cover further absences.

The District Court sentenced the appellant to a non-parole period of two years with an additional term of two and a half years. The six related offences dealt with by way of a section 166 Certificate attracted a conviction recorded under section 10A of the Crimes (Sentencing Procedure) Act 1999 without further penalty, given the overlap with matters on the Form 1.

  • Whether the appellant had a justifiable sense of grievance arising from a marked sentencing disparity between himself and his co-offender
  • Whether the sentencing judge erred by failing to treat the maximum penalties for relevant statutory offences as a reference point or guide when imposing sentence
  • Whether the sentence was manifestly excessive

Decision

Disparity: Campbell J rejected the disparity argument. The co-offender was dealt with as a civilian, not as a police officer, and was sentenced for different conduct arising from the same events. The Court found that the two sentences were not truly comparable, and any difference in outcome reflected the fundamentally different roles, culpability, and subjective circumstances of each offender rather than any inconsistency of approach.

Maximum penalties: The appellant argued that the sentencing judge should have explicitly used the maximum penalties for related statutory offences as a calibrating reference point. Campbell J, applying the principles from Markarian v The Queen and Lowndes v The Queen, held that the common law offence of misconduct in public office carries no prescribed statutory maximum. In the circumstances, the absence of a direct statutory maximum did not constitute error. The sentencing judge's approach was consistent with accepted sentencing methodology.

Manifest excess: The Court considered two other sentencing decisions involving police officers convicted of similar conduct but declined to treat them as establishing a sentencing range. Campbell J noted that misconduct in public office is a protean offence covering a very wide field, and that only two comparison cases cannot establish a useful pattern. Differences in outcome between cases reflect differences in individual facts and circumstances, not sentencing error. The Court was not satisfied that a different sentence was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing disparity argument requires genuine comparability between offenders; differences in role, civilian versus police status, and individual circumstances will ordinarily explain divergent outcomes without giving rise to a justifiable sense of grievance.
  • Misconduct in public office is a common law offence carrying no prescribed statutory maximum, and a sentencing judge is not required to use the maximum penalties of related statutory offences as a reference point when imposing sentence for that common law offence.
  • Where an offence is "protean" in nature and covers a very wide range of conduct, two comparison cases are insufficient data to establish a sentencing range, and marked differences from sentences in other cases do not of themselves justify appellate intervention: Wong v R (2001) 207 CLR 584 at [58].
  • Consistency in sentencing requires consistency of approach, not numerical equivalence across cases.
  • In dismissing the appeal, the Court reinforced that the gravity of police misconduct involving the dissemination of sensitive intelligence is properly assessed by reference to the specific nature of the information, the breadth of the course of conduct, and the officer's exploitation of a position of trust, rather than by analogy with civilian offenders or other police cases involving superficially similar facts.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A, 33
- Criminal Procedure Act 1986 (NSW), s 166
- Police Act 1990 (NSW)

Cases:
- Blackstock v Regina [2013] NSWCCA 172
- Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v The King [1936] HCA 40; 55 CLR 499
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Jaturawong [2011] NSWCCA 168
- R v Windle [2012] NSWCCA 222
- Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381
- Thompson-Davis v R [2013] NSWCCA 75
- Wong v R [2001] HCA 64; 207 CLR 584