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District Court 15 July 2016

Abubakar Braimah-Mahamah v R

[2016] NSWDC 138

Fraud & dishonesty
APPEAL COMPUTER OFFENCES SENTENCE APPEAL AGAINST SEVERITY OF SENTENCE PLEA IN MITIGATION PURPOSES OF SENTENCING

Citation: Abubakar Braimah-Mahamah v R [2016] NSWDC 138
Court: District Court of NSW
Date: 15 July 2016
Judge(s): Hatzistergos DCJ

Background

The offender was a solicitor employed as a Prosecution Officer at the Office of the Director of Public Prosecutions (ODPP). Between May 2012 and December 2013, he had a personal relationship with a man who was facing serious criminal charges being prosecuted by the ODPP, including supplying a large commercial quantity of methylamphetamine.

The offender used his ODPP login credentials to access the restricted "CASES" computer system and view documents relating to that man's criminal proceedings. He was never authorised to access those files as part of his official duties. An audit revealed he had accessed the file on 61 separate dates over that period, viewing 48 attachments a total of 127 times.

The eight charges before the court related to eight specific document accesses on 13 December 2013, the only occasions falling within the six-month limitation period for the Court Attendance Notices. The offender resigned from the ODPP two days after his arrest in June 2014. The Local Court sentenced him to 100 hours of community service (concurrent) on each charge. He appealed to the District Court on the ground that the sentence was too severe, arguing primarily that no conviction should be recorded.

  • Whether the severity of the community service sentence warranted appellate intervention
  • Whether the court should exercise its discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to deal with the matter without recording a conviction
  • What weight should be given to mitigating factors including the guilty plea, remorse, prior good character, absence of prior convictions, and extra-curial punishment already suffered
  • What role general deterrence and denunciation play in sentencing for this category of offending by a legal professional

Decision

Hatzistergos DCJ allowed the appeal and reduced the sentence, but declined to deal with the matter without recording a conviction. While the court acknowledged the offender's mitigating circumstances, including his guilty plea, good character, lack of prior convictions, remorse, and the significant extra-curial consequences he had already suffered (including loss of his career), those factors did not outweigh the sentencing objectives of general deterrence and denunciation.

The court found that the offending was not isolated. The audit evidence established a pattern of unauthorised access spanning nearly two years, and that context meant the offender could not advance a case in mitigation based on the offences being a one-off lapse. Although the prosecution did not assert that any accessed information was disclosed to the man whose file was viewed, some of the documents were clearly sensitive internal materials, including submissions to the Deputy Director recommending approval for an induced witness statement.

The court emphasised that the offender held a position of trust as a lawyer within the ODPP and had exploited his authorised system access for a personal purpose. General deterrence and denunciation weighed heavily given the nature of the office he held and the potential consequences that could flow from this type of conduct, even where actual harm was not proven.

On the question of an appropriate sentence, the court held that a good behaviour bond under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 for 16 months was the proper outcome, taking into account the timing of the plea and all mitigating circumstances. Applying s 10 to avoid a conviction entirely was not appropriate given the purposes of sentencing in this context.

Orders Made

  • The appeal was allowed
  • The convictions on each charge were confirmed
  • The Local Court orders of Wahlquist LCM dated 22 January 2016 were otherwise set aside
  • The offender was directed to enter into a good behaviour bond for a period of 16 months from 15 July 2016, pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Key Takeaways

  • A conviction for unauthorised access to restricted computer data under s 308H of the Crimes Act 1990 (NSW) by a legal professional in a position of trust will weigh general deterrence and denunciation heavily, even where no actual disclosure of the accessed information is established.
  • The District Court declined to apply s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to avoid recording a conviction, holding that the combination of a position of trust, repeated access over an extended period, and the sensitivity of some materials made a s 10 outcome inappropriate despite significant mitigating factors.
  • Audit evidence showing a broader pattern of offending, even where charges are limited to a subset of incidents by reason of the limitation period, can preclude an offender from arguing in mitigation that the offending was isolated or out of character.
  • Extra-curial consequences, including loss of employment and career damage, are relevant mitigating considerations but do not automatically displace the sentencing court's obligation to give effect to deterrence and denunciation for serious breaches of professional duty.
  • Reducing a sentence of 100 hours of community service to a 16-month good behaviour bond under s 9(1) reflected the court's view that the original sentence was excessive in light of all mitigating factors, while still maintaining a formal sentencing outcome that served the purposes of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1990 (NSW), s 308H (unauthorised access to restricted data held in a computer)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 8, 9(1), 10, 21A(3)
- Criminal Procedure Act 1986 (NSW), s 169

Cases
- Baines v R [2016] NSWCCA 132
- Einfeld v R [2010] NSWCCA 87
- JCW v R [2000] NSWCCA 209
- Lee v Regina [2011] NSWCCA 169
- Qing An v Regina [2007] NSWCCA 53
- R v Borkowski [2009] NSWCCA 102
- R v Gent [2005] NSWCA 370
- R v Kennedy [2000] NSWCCA 527
- R v Mauger [2012] NSWCCA 51
- R v McGaffin [2010] SASCFC 22
- R v Talia [2009] VSCA 260
- Salter v The Director of Public Prosecutions (NSW) [2011] NSWCA 190
- Wagih Hanna Awad Nakhla v R [2011] NSWCCA 143