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Court of Criminal Appeal 24 February 2014

HUGHES, Jenna Lee v R

[2014] NSWCCA 15

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL APPEAL DISMISSED

Citation: Hughes, Jenna Lee v R [2014] NSWCCA 15
Court: Court of Criminal Appeal, NSW
Date: 24 February 2014
Judges: Hoeben CJ at CL, Simpson J, Hall J

Background

The applicant was a police officer stationed at Surry Hills who pleaded guilty in the Local Court to four counts: two counts of misconduct in public office and two counts of giving false evidence to the Police Integrity Commission (PIC). The offences were committed between 2009 and 2011, during which the applicant used her authorised access to the NSW Police COPS database for entirely unauthorised purposes, passing intelligence to criminal associates.

The first misconduct count involved the applicant accessing the COPS database 47 times at the request of two associates who had admitted stealing a vehicle. She conveyed the search results to them and failed to report their admissions to police. The second misconduct count involved the applicant conducting database searches to locate the home address of an individual for a romantic partner who was connected to a well-known Kings Cross figure. She then fabricated a false intelligence report to disguise those searches as legitimate police work.

When the PIC investigated and questioned her in June 2011, the applicant gave false evidence on two points. In the District Court, Marien DCJ sentenced her to an aggregate term of 1 year and 9 months' imprisonment, with a non-parole period of 1 year. The applicant sought leave to appeal that sentence.

  • Whether the sentencing judge erred by imposing a custodial sentence rather than an Intensive Correction Order, despite the Crown not opposing the latter at the sentencing hearing
  • Whether the sentencing judge failed to take into account the likelihood that the applicant would serve her sentence in protective custody and the consequent hardship
  • Whether the sentencing judge failed to give proper weight to the applicant's mental health issues in the sentencing exercise

Decision

On the question of the Intensive Correction Order, the Court confirmed that a sentencing judge is not bound by any concession or position adopted by the Crown. The judge retains an overriding obligation to impose a sentence that properly reflects the overall criminality of the offending. Marien DCJ had carefully considered all objective and subjective circumstances before concluding that full-time custody was warranted, and that conclusion was open to him.

On the protective custody ground, the Court found no evidentiary foundation. No evidence about the conditions or hardship of protective custody had been led at the sentencing hearing. The applicant then sought leave to adduce fresh evidence on appeal about her custody conditions, but the Court found no proper basis for granting that leave.

On the mental health ground, the sentencing judge had expressly acknowledged the applicant's psychological and psychiatric history, including that her mental health issues contributed to the commission of the offences. However, his Honour also found that the applicant had acted with full appreciation of the gravity and illegality of her conduct throughout. That finding properly reduced the mitigatory weight available from the mental health evidence. The Court rejected the submission that the sentencing judge had understated the causal role of mental health or placed excessive weight on general deterrence. The judge had in fact applied the special circumstances finding to extend the applicant's supervision period precisely because of her mental health history.

The Court granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not bound by the Crown's concession that a non-custodial order would be appropriate; the court retains an independent obligation to impose a sentence that reflects the full criminality of the conduct.
  • Where an applicant seeks to rely on hardship arising from protective custody conditions as a mitigating factor, evidence of those conditions must be placed before the sentencing court; the absence of such evidence at first instance is a significant obstacle to raising the issue on appeal, including through fresh evidence.
  • Mental health issues that contributed to offending can carry reduced mitigatory weight where the offender acted with full knowledge of the seriousness and illegality of their conduct throughout the relevant period.
  • The Court of Criminal Appeal confirmed that police officers occupy positions of particular trust, and that unauthorised disclosure of confidential police database information to criminal associates falls within the upper range of objective seriousness for misconduct in public office.
  • No error was established in the sentencing judge's approach to general deterrence for offences involving abuse of a police officer's privileged access to law enforcement systems.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 7, 44(2), 50
- Police Integrity Commission Act 1996 (NSW), s 107(1)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- R v LP [2010] NSWCCA 154
- R v Paris [2001] NSWCCA 83
- R v Way (2004) 60 NSWLR 168
- R v Wright (1997) 93 A Crim R 48
- RWB v R (2010) 202 A Crim R 209
- Thewlis v R [2008] NSWCCA 176