Commissioner of Police v Punchard
[2021] QCA 166
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- Unreported Judgment
- Commissioner of Police v Punchard[2021] QCA 166
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Commissioner of Police v Punchard[2021] QCA 166
Commissioner of Police v Punchard[2021] QCA 166
SUPREME COURT OF QUEENSLAND
CITATION: | Commissioner of Police v Punchard [2021] QCA 166 |
PARTIES: | COMMISSIONER OF POLICE (applicant) v PUNCHARD, Neil (respondent) |
FILE NO: | CA No 200 of 2020 DC No 4007 of 2019 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2020] QDC 211 (Chowdhury DCJ) |
DELIVERED ON: | 13 August 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 July 2021 |
JUDGES: | Sofronoff P and Fraser and Mullins JJA |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty and was sentenced for nine counts of use restricted computer without consent and cause or intend to cause detriment, damage or gain – where the sentencing magistrate sentenced the respondent to imprisonment for a wholly suspended period of two months – where the operational period for the suspended term of imprisonment was 18 months – where the respondent appealed to the District Court pursuant to s 222(2)(c) of the Justices Act 1886 (Qld) on the basis that the punishment was excessive – where the District Court judge on appeal re-sentenced the respondent to 140 hours of community service with no conviction recorded – where the District Court judge on appeal could not re-sentence the respondent unless the sentencing magistrate erred in exercising the sentencing discretion – whether the District Court judge on appeal erred in re-sentencing the respondent CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the sentencing magistrate sentenced the respondent to imprisonment for a wholly suspended period of two months – where the District Court judge on appeal re-sentenced the respondent to 140 hours of community service – where the District Court judge on appeal erred in re-sentencing the respondent – where the respondent completed 140 hours of community service – whether the reinstatement of the magistrate’s sentence would cause an injustice to the respondent – whether the court should exercise its residual discretion and decline to interfere with the sentences imposed in the District Court Criminal Code (Qld), s 408E Justices Act 1886 (Qld), s 222 Commissioner of Police v Broederlow (2020) 5 QR 296; [2020] QCA 161, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited |
COUNSEL: | A J Edwards for the applicant J R Hunter QC for the respondent |
SOLICITORS: | QPS Legal Unit for the applicant Gnech & Associates for the respondent |
- [1]THE COURT: The respondent pleaded guilty before her Honour Magistrate Previtera on 14 October 2019 to nine counts of use restricted computer without consent and cause or intend to cause detriment, damage or gain which were committed on various dates between 30 July 2013 and 17 July 2014. Although the short form of the charge refers to causing detriment or damage, the circumstance of aggravation particularised for each offence was that the respondent gained a benefit, namely knowledge. The maximum penalty for the offence with the circumstance of aggravation is five years’ imprisonment.
- [2]For each offence the respondent was sentenced to imprisonment for a period of two months that was wholly suspended and the operational period for the suspended term of imprisonment was 18 months. The respondent appealed successfully to the District Court on the ground the sentences were manifestly excessive. On 1 September 2020 Chowdhury DCJ set aside the sentences imposed by the learned Magistrate and re-sentenced the respondent by convicting the respondent on charges 1-4, 6, 8 and 9 in respect of which he was not further punished, imposing a community service order of 40 hours for charge 5 and a community service order of 100 hours for charges 7. Convictions were not recorded: Punchard v Commissioner of Police [2020] QDC 211 (the reasons).
- [3]By notice filed on 28 September 2020, the applicant applies for leave to appeal to this Court for the following reasons:
- (1)it is necessary to correct a substantial injustice to the applicant, as the sentences imposed by the Magistrate were within the sound exercise of the sentencing discretion;
- (2)this Court has not previously considered sentences under s 408E of the Criminal Code (Qld) and this case may set a precedent in cases, particularly in relation to police officers; and
- (3)the decision of the learned District Court Judge does not reflect general deterrence considerations and has the tendency to erode public confidence in the Queensland Police Service.
- [4]The first and third reasons for seeking leave to appeal are then reflected in the grounds of the appeal.
Relevant facts
- [5]The respondent had been a police officer since 25 September 2002 and was a Senior Constable when he offended. He was aged 47 to 48 years at the time of the offending and had no prior criminal history.
- [6]The respondent was a very close and long-term friend of X who was married to Y and there were children of that relationship. Around June 2013 there was a breakdown in the relationship of X and Y that led to Y moving out of the marital home. Y later commenced a relationship with Z with whom she began to cohabit.
- [7]Even before X and Y had separated, X had on 28 August 2012 asked the respondent to check someone’s address from their licence plate and the respondent refused to do so. The nine offences arose out of the nine occasions on which the respondent accessed the police systems QPRIME and MINDA after the breakdown in the relationship between X and Y. The respondent was authorised to access those computer systems only in connection with his official duties.
- [8]Charge 1 was committed on 30 July 2013 when the respondent used a police computer to access QPRIME to conduct a search about X and looked at current information concerning a shop stealing matter and a be on the lookout (BOLO) warning that had been placed on the system about X. There were no notations or indications in the respondent’s daily activity log to account for this search.
- [9]Charge 2 was committed on 24 September 2013, when the respondent used a police computer to access QPRIME to conduct a search about X on the Department of Transport and Main Roads (DTMR) system for licence details and the traffic history of X, when the respondent was reportedly on speed camera deployment.
- [10]Charge 3 involved the respondent using a police computer in a police vehicle to do a MINDA search of the DTMR system on Y’s licence on 15 October 2013, when the respondent was reportedly delivering briefs of evidence to Holland Park, Wynnum and Cleveland prosecutions.
- [11]On 23 October 2013 the respondent committed charge 4 when he used a police computer to access QPRIME to conduct a search about Y and opened a victim report concerning her and then accessed DTMR information about her. According to the respondent’s activity log, he was undertaking training at the time.
- [12]Charge 5 was committed on 20 November 2013 when the respondent accessed QPRIME to conduct a search about X, X’s sister and Y and also accessed information within the DTMR systems, including licence details and traffic histories. He also revisited the BOLO previously accessed on 30 July 2013 and gained information about X’s suspended driver’s licence which he passed onto X. Later that same day X contacted SPER and had the suspension lifted. According to the respondent’s activity log, he was undertaking a speed detection device requalification at the time of the searches.
- [13]The respondent committed charge 6 on 9 December 2013 when he used a police computer in a police vehicle to conduct a MIMDA search of the DTMR system on the registration number plate of X’s car and was informed that the vehicle was not a vehicle of interest. In March 2014 the respondent bought that car from X.
- [14]Charge 7 was committed on 3 February 2014 when the respondent used a police computer in a police vehicle to conduct a MIMDA search of the DTMR system in relation to Z’s driver’s licence including his residential address and that address was passed by the respondent onto X. By this time Y was cohabiting with Z and this information revealed to X the full address of Y.
- [15]Charge 8 involved the respondent using a police computer on 24 March 2014 to access QPRIME to conduct a search about X and to look at information about X contained within the DTMR systems. According to the respondent’s activity log, he was attending to administration duties at the time.
- [16]Charge 9 was committed on 17 July 2014 when the respondent used a police computer to access QPRIME to conduct a search about X and to look at information about X within the DTMR systems. According to the activity log of the respondent, he was attending to administration duties at the time.
- [17]Charges 3, 4, 5 and 7 involved accessing information concerning Y and/or Z. The passing of the information onto X arose in respect of charges 5 and 7 and was confirmed by an analysis of X’s phone.
- [18]On 21 November 2013 final Family Court parenting orders were made requiring X and Y to keep each other informed at all times of their residential addresses and contact telephone numbers. Y had not, in fact, provided her address to X, as she maintains she was the victim of domestic violence inflicted by X. The sentencing proceeded on the basis there was no evidence the respondent was aware of Y’s abuse at the hands of X, as it was not until 7 and 8 July 2014 that Y applied for and obtained a domestic violence order against X that named Y as the aggrieved. This lack of knowledge was relied on by the respondent as particularly relevant to charge 7.
- [19]By 3 February 2014, when the respondent passed on Z’s address where it was believed that Y was living with Z, there was significant acrimony between X and Y of which the respondent was aware and he had become involved in giving quasi-legal advice to X. The respondent had checked that no domestic violence order had been applied for on behalf of Y before he released the information to X which completed the details of the address where Y was residing. The respondent advised X what to write in text messages and emails to Y, he gave advice relating to custody in connection with the family law proceeding and referred to Y in derogatory terms. After sending the details of the address where the respondent believed Y was living with Z, he sent a series of messages on the same date, including a message to the effect that X should tell Y that he knew where she lives and leave it at that, suggesting:
“Don’t tell her how … Just send her an email saying, I won’t ask for your address anymore as I know where you are now. If you won’t comply with court orders I will have to take matters into my own hands, so since I know I won’t bug you anymore …”
- [20]The sentencing before the Magistrate proceeded on the basis that it was not part of the prosecution’s case that X turned up at the disclosed address, after the respondent had informed him of the unit number for Z.
- [21]A complaint was made on 23 June 2016 by Y to the Crime and Corruption Commission (CCC) which was referred to the Ethical Standards Command (ESC) of the Queensland Police Service (QPS) between June 2016 and April 2017. An investigation was undertaken by the police Internal Investigations Group which concluded that there was insufficient evidence to prosecute the respondent for a criminal offence, he was sanctioned internally for improper accessing of a police computer system and his rank was reduced by one pay point (from 2.10 to 2.9) for 12 months. Y then raised concerns with the Commissioner of Police about the objectivity of the investigation and a further internal review again concluded on 13 August 2018 that there was insufficient evidence to prosecute. The CCC oversaw that review and on 25 September 2018 indicated there was sufficient evidence to prosecute the matter criminally. The respondent was charged with the nine offences on 14 December 2018 and stood down as a police officer, although he was allowed to continue to perform some supervised duties. On 2 September 2019 the respondent applied unsuccessfully for a stay of the criminal proceeding. The respondent then indicated on 11 September 2019 that he would plead guilty.
- [22]The respondent attended on psychologist Mr Worthington on 24 and 25 March 2017 for the purpose of providing background and an opinion for consideration in relation to the matters involving the respondent which were then being dealt with by QPS. Mr Worthington’s report was dated 29 March 2017. The respondent disclosed to Mr Worthington several incidents that had occurred over the previous 17 years involving his family members that had traumatised him. He also disclosed an event that occurred during April 2013 when he spoke to a 17 year old driver for speeding and thereafter provided the driver with education on driving safety, but within three months after he had first spoken to the driver, he died in a traffic accident.
- [23]The respondent reported to Mr Worthington that his actions in accessing information on the police computer system about X, Y and Z were motivated by a deep sense of compassion for X and his children and that his traumatic experiences within his family meant he related to X’s suffering and what he believed was the need for X to protect his children. Mr Worthington noted that the scores from the tests administered by Mr Worthington did not indicate the presence of post-traumatic stress, but did indicate that the respondent was prone to distress, if he were reminded of the traumatic events that had occurred within his family. Mr Worthington was of the opinion that the respondent demonstrated remorse for his actions and that it was not unreasonable to suggest that the severity of the traumatic events which had occurred within the respondent’s family influenced his judgment in accessing the information which he should not have accessed.
- [24]Psychiatrist Dr Dodds is the respondent’s treatment psychiatrist. The respondent consulted him after being charged with the offences and saw him on eight occasions between 19 December 2018 and 24 September 2019. His report is dated 4 October 2019. Dr Dodds expects to continue as the respondent’s treating psychiatrist, but is of the opinion that his mental state at the time the report was prepared was very much improved compared to the period of time when the offending occurred. Dr Dodds noted that the respondent has had some anxiety related to the disciplinary and criminal proceedings. Dr Dodds also had the benefit of Mr Worthington’s report. Dr Dodds is of the opinion that the respondent’s experience of a number of psychologically traumatic experiences in his private life, as well as in the course of his employ with the QPS, significantly explained the offending conduct. Dr Dodds diagnosed the respondent as suffering from PTSD at various levels of severity since 2000, but that disorder had now resolved, but it was a significant causal factor for the offending conduct.
- [25]The respondent tendered numerous references that showed how highly he was regarded by other police officers who provided references in their personal capacity and members of the community. He was involved for many years in administering a police sponsored program on road safety that reached out to the community called the Attitudinal Drivers Workshop for which he received community awards.
The Magistrate’s decision
- [26]The Magistrate accepted that the respondent pleaded guilty in a timely way and that the pleas of guilty indicated his remorse which was also confirmed by the reports of Mr Worthington and Dr Dodds. The Magistrate took into account the delay in the prosecution between 5 October 2016 and 13 August 2018 in the respondent’s favour for sentencing purposes. The Magistrate noted that the respondent had received awards for various activities he had undertaken within the police service, the offending was out of character and there was a low risk of the respondent’s reoffending.
- [27]The Magistrate noted that charges 5 and 7 involved information actually being released by the respondent to X and the most serious of those (charge 7) committed on 3 February 2014 involved the release of the unit number where Y lived with her new partner and the children of the marriage with X which was information that X did not otherwise have, even though X knew the unit block, the street and the suburb. The Magistrate characterised as serious the fact that the respondent knew what he was doing was wrong, as he had refused on the earlier occasion in 2012 to provide information to X on his request, and the respondent also knew that X could go to the Family Court to obtain the information he needed and had advised X that he could do so.
- [28]Emails sent by the respondent to X over the period between 8 September 2013 and 9 July 2014 confirmed that the respondent had become involved in the family law proceedings between X and Y and appeared to accept entirely X’s version of events. The Magistrate referred to the victim impact statement from Y that was before the court and noted the prosecution correctly accepted that the full extent of the psychological impact upon Y was not entirely due to the respondent’s offending and some of the effects must be the result of the acrimonious nature of the relationship between X and Y. The Magistrate did accept that there has been a psychological impact upon Y by reason of her knowledge that X knew where she lived.
- [29]The Magistrate noted the psychologist’s report dated March 2017 where there was an indication that the respondent suffered from mild anxiety and was prone to distress if reminded of certain traumatic events that were referred to in the report. The psychologist considered it was not unreasonable that the severity of those traumatic events influenced the respondent’s judgment in accessing information to reduce the suffering to X and his children. The Magistrate noted, however, that there was no mention in any of the emails sent by the respondent to any suffering by the children or any allegations being made concerning suffering or harm to the children. The Magistrate accepted that the flavour of the messages was that the respondent’s focus was that Y was deserving of the treatment that was being meted out to her. The Magistrate noted the psychiatrist diagnosed post-traumatic stress disorder (PTSD) as the significant causal factor of the respondent’s offending, but that was “at odds” with the character references that the respondent set, and worked to, a high standard on a daily basis in his employment over a considerable number of years and evidence that the respondent knew what he was doing was wrong, because he had refused X’s first request of him for information in 2012.
- [30]The Magistrate had been referred to the authorities, such as R v Yarwood (2011) 220 A Crim R 497, for the submission that PTSD as a mitigating factor reduced a defendant’s moral culpability or reduced the extent to which principles of general and specific deterrence were relevant and that a sentence of actual imprisonment may weigh more heavily on a defendant with a psychiatric illness than it would on a person in normal health. The Magistrate took into account the sentencing principle (set out in s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld)) that applied to sentencing for offences of this nature that imprisonment was a sentence of last resort.
- [31]The respondent’s lawyer had referred the Magistrate to other Magistrates’ decisions on s 408E of the Code of which the Magistrate considered the most relevant to be Police v Philippi, unreported, Magistrate Gett, MC No 166529 of 2018, 22 October 2018. Mr Philippi entered an early guilty plea to one count of computer hacking with a circumstance of aggravation, in that he gained a benefit. He committed the offence over a period between 16 October 2017 and 10 April 2018 when a serving member of the Queensland Police Service since 2008 with the rank of Detective Senior Constable. The complainant was a woman with whom Mr Philippi had a brief relationship. Mr Philippi used his portable QLiTE device to access the QPRIME computer system to look up information on request on behalf of friends and acquaintances and admitted to the complainant that he had looked up her personal details on the device. At the request of the complainant, Mr Philippi also looked up her ex-partner’s information and friends and acquaintances of the complainant. An investigation revealed that over a five month period Mr Philippi unlawfully accessed details of 62 persons from the QPRIME system and sent screen shots via social media to others, but primarily to the complainant. After the relationship with the complainant ended, Mr Philippi accessed photographs of two persons with the name of the complainant’s new partner, in order to confirm which of them was the complainant’s new partner and Mr Philippi then revealed to the complainant that he had certain information about him. The benefit that Mr Philippi obtained from his conduct was to ingratiate himself to others and impress others, particularly the complainant. Mr Philippi was 30 years old at the date of sentence and had no prior criminal history. He had worked for five years in a Child Protection Investigation Unit which was “emotionally taxing and demanding”. He separated from his wife in the months preceding this offence and there was a young son of that relationship who had significant and substantial medical needs. Mr Philippi’s use of alcohol as a coping mechanism contributed to the marriage breakdown. A psychiatrist diagnosed Mr Philippi as suffering a major depressive disorder, “probable” post-traumatic disorder and an exacerbation of a previously less severe alcohol use disorder. The psychiatrist also expressed the opinion that the relationship of Mr Philippi started with the complainant after his marriage broke down was one where he lost his sense of boundaries.
- [32]Magistrate Gett described that Mr Philippi had “grossly and repugnantly betrayed the trust placed in [him] by the Queensland community” and noted that it was an aggravating aspect of the conduct that it involved a number of other persons, was protracted and was selfish when he accessed the information to ascertain the identity of the complainant’s new partner. Magistrate Gett found that Mr Philippi’s moral culpability, as far as general deterrence was concerned, was significantly reduced by his mental disorders. But for the mental disorders, Magistrate Gett was of the view that the only appropriate sentence would have been one of imprisonment. Mr Philippi was convicted and fined the sum of $8,500, but a conviction was not recorded because of the psychiatric material, the references, his strong antecedents and the consequences of the potential loss of his job from the police service should a conviction be recorded.
- [33]In dealing with the respondent, the Magistrate referred to the breach of trust by the respondent as a police officer which loomed large in the circumstances relating to the respondent and authorities that emphasise the importance of maintaining public confidence in police officers. Her Honour referred to R v Smith; ex parte Attorney-General (Qld) (2000) 116 A Crim R 447 in which Pincus JA said at 451 that “[t]he cohesion of our society depends in substantial part on public confidence in the honesty of those who administer justice” and to R v Price; ex parte Attorney-General (Qld) [2011] QCA 87 at [52] where Muir JA quoted with approval the statement made by Pincus JA and also stated:
“I readily accept the submission that the abuse by a police officer of his or her powers and responsibilities to the material harm of a member of the community calls for condign punishment which denounces the offending conduct and provides a general deterrent against the perpetration of such conduct by others.” (footnote omitted)
- [34]The Magistrate accepted by reason of the psychiatrist’s report “that there is a reduced degree, in terms of consideration of principles of moral culpability, general deterrence, and specific deterrence, but it is not a significant degree, for the reasons that this offending involved [the respondent] taking a significant risk in relation to the safety of a member of the public”. The Magistrate then observed:
“With all members of the public, and particularly persons in these sorts of arrangements, where you knew there was a high level of acrimony – have an expectation that the police will protect them and certainly not take any action to place them at any degree of risk, regardless of whether there are domestic violence proceedings on foot.”
- [35]The Magistrate concluded that a wholly suspended sentence of two months for an operational period of 18 months for each offence was an appropriate sentence given that general deterrence remained relevant.
The reasons
- [36]The respondent’s appeal to the District Court was pursuant to s 222 of the Justices Act 1886 (Qld). The sole ground for appeal under s 222(2)(c) where a defendant has pleaded guilty is that the punishment was excessive. Chowdhury DCJ considered a number of authorities on the approach that should be taken in the District Court to an appeal pursuant to s 222 of the Justices Act against sentence and, even though the ground of appeal is expressed in terms that the punishment was excessive (in conformity with the wording of s 222(2)(c)), concluded (at [48] of the reasons) that the appeal was against a discretion exercised by the sentencing Magistrate, so the principles in House v The King (1936) 55 CLR 499, 504-505 applied. The question therefore was whether the sentence was manifestly excessive. No issue was taken, or could be taken, on the application to this court to his Honour’s conclusion that the approach to be taken on the appeal to the District Court was to discern whether there was error in the exercise of the sentencing discretion by the Magistrate.
- [37]Apart from Philippi, Chowdhury DCJ analysed two other decisions on s 408E of the Code: O'Neill v Frilingos, unreported Botting DCJ, DC No 2294 of 2014, 13 March 2015 and Commissioner of Police v Betts, unreported, Magistrate Shearer, MC No 182739 of 2015, 14 March 2016.
- [38]In O'Neill, Mr O'Neill pleaded guilty and was convicted of seven counts of computer hacking under s 408E(1) and (2) of the Code. His wife pleaded guilty at the same time to 14 counts of the same offence and Mr Robinson who was her brother-in-law pleaded guilty to 21 counts on the basis he was a party to the offences committed by Mr and Mrs O'Neill. The offences were committed when Mr and Mrs O'Neill were Senior Constables in the Queensland Police Service and Mr Robinson was a private investigator. The circumstances of the commission of the offences were that Mr O'Neill would access data on a computer system operated by the Queensland Police Service and would provide that information to Mr Robinson who would use that information in his occupation. Mr Robinson was sentenced to perform 240 hours community service, placed on probation for 18 months, and no conviction was recorded. Mrs O'Neill was placed on probation for two and one-half years with no conviction recorded. Mr O'Neill was ordered to be imprisoned for six months to be wholly suspended for an operational period of 15 months and therefore a conviction was recorded. There was no appeal against the sentences imposed on Mrs O'Neill and Mr Robinson. Chowdhury DCJ summarised (at [50] of the reasons) the decision on Mr O'Neill’s appeal:
“Botting DCJ expressed the view that he thought Robinson and the appellant’s wife had been fortunate in the orders that they obtained. He considered that it was a serious offence for a serving police officer to provide information known to police to people who are not authorised to receive it. He observed it was a significant breach of trust. However he considered that there was a significant difference in the severity of the sentence imposed on the appellant and that imposed on his co-offenders. Consequently, his Honour set aside the sentences of suspended imprisonment, and imposed a fine of $2,000, with six months to pay. Convictions were not recorded.”
- [39]In Betts, Mr Betts pleaded guilty to 51 charges contrary to s 408E(1) and (2) of the Code committed between 21 July and 28 October 2014. At the time of the offending, he was a serving police officer and had accessed QPRIME to gain mobile phone numbers for other persons and also used QPRIME to look further at the relevant persons’ details and addresses. According to the summary of the decision provided to Magistrate Previtera that was before Chowdhury DCJ, Mr Betts sourced “drug dealers and prostitutes for himself” and on one occasion “accessed a crime report for a suspect”. Mr Betts had served in both the Tasmanian Police Service and the Queensland Police Service over a period of 22 years. He had received a bravery award in Tasmania. Psychiatric material established that Mr Betts suffered from PTSD as a result of being in the police station at the time of the Palm Island riots in 2004. He resorted to using drugs to deal with the PTSD. Mr Betts was convicted and fined the sum of $8,000 and convictions were recorded.
- [40]Chowdhury DCJ had been referred to other comparable sentencing decisions from Magistrates and noted (at [57] of the reasons) that he had regard to all of them and there was a wide variety of circumstances, both aggravating and mitigating. His Honour emphasised (at [58]) that the respondent was charged with the circumstance of aggravation that he “gained benefit” which was “knowledge” and was not charged with the circumstance of aggravation that he accessed the computer with the intention to cause detriment or damage or caused detriment or damage. After referring to the observation by Hall J in Hughes v R [2014] NSWCCA 15 at [129] to the effect that police officers are subject to important responsibilities due to the position of trust they occupy and “the importance of maintaining confidentiality of police information is paramount in the effective pursuit of investigative activity and thus the restrictions upon unauthorised persons having access to information including the database information relevant to the present case”, concluded (at [60]) that a sentence of imprisonment for the offences committed by the respondent, even allowing for the sentence being wholly suspended, was excessive “having regard to the precise circumstances of the offending, the mitigating factors, and sentences imposed by Magistrates for this specific offence in other cases”.
- [41]Chowdhury DCJ referred (at [63] of the reasons) to the facts relevant to charge 7 in a way that suggested those facts lessened the seriousness of charge 7. In summary, they were:
- There was a final court order by consent of the Federal Circuit Court that required Y to disclose the residential address to X.
- X already knew the street and apartment complex where Y lived.
- No domestic violence order was in place with Y as the aggrieved and X as the respondent.
- There was no evidence to indicate that the respondent was aware of any allegations of domestic violence by Y against X and the respondent specifically checked whether any protection order had been made before releasing the address.
- X did not attend the address of Y as a result of the disclosure of the precise unit number by the respondent.
- The respondent was not charged with causing or intending to cause detriment to Y.
- [42]Chowdhury DCJ observed (at [64] of the reasons) that a police officer of the experience and length of service of the respondent should have known better than to involve himself in an acrimonious family dispute and accepted (at [65]) that the respondent expressed “with some relish” the likelihood of Y being distressed and upset when she learned that X had her specific address and he encouraged X to lie about the source of the address.
- [43]Chowdhury DCJ noted (at [74] of the reasons) the observation of Muir DCJ in ROV v Commissioner of Police [2017] QDC 324 at [28], in considering an appeal by a police officer charged with one charge of computer hacking and misuse pursuant to s 408E(1) of the Code that did not include a circumstance of aggravation, that the Magistrates’ sentences for the offence under s 408E(1) and even where there was a circumstance of aggravation under (2) were fines that ranged between $1,200 and $8,000. His Honour then noted (at [75]) that “it is clear that a pattern has emerged of non-custodial sentences, usually fines for this offence; sometimes good behaviour bonds for less serious cases” and referred to the importance of consistency in sentencing.
- [44]His Honour expressed the view at [76] of the reasons) that the respondent’s case was not as serious as the case of Philippi. His Honour then concluded (at [77]) that the sentence of two months’ imprisonment wholly suspended was excessive in all the circumstances, noting that it was also imposed on each charge with no distinction for the different circumstances of each charge.
- [45]It was not until the section of the reasons in which Chowdhury DCJ dealt with the question of whether a conviction should be recorded that his Honour included as part of his Honour’s analysis the Magistrate’s reference to the risk of harm to Y that the respondent’s release to X of the unit number where Y was living created. His Honour accepted (at [86] of the reasons) that charge 7 did create a risk to Y, as the Magistrate found, but then stated “it was the same risk created by the terms of the Federal Circuit Court order”. (His Honour’s next statement to the effect that on the evidence X never went to the unit where Y was living suggests that his Honour considered the relevance of the risk identified by the Magistrate was reduced, because it did not come to fruition.)
Was there an error in the exercise of the Magistrate’s sentencing discretion?
- [46]Chowdhury DCJ could not proceed to re-sentence the respondent, unless there was an error in the exercise of the Magistrate’s sentencing discretion and the only error relied on was that the sentence was manifestly excessive. Mr Edwards of Counsel who appears for the applicant submits that the Magistrate’s sentences were within the sound exercise of the sentencing discretion and Chowdhury DCJ erred in considering that the Magistrate’s sentencing discretion was fettered by the results in past cases. The applicant submits that his Honour erred in considering that a pattern of sentences emerged from those imposed by Magistrates for this offence which could be used as a yardstick for the respondent’s sentence, but also erred in treating one of those decisions, Philippi, as the one case against which to test the respondent’s sentence.
- [47]Mr Hunter of Queen’s Counsel on behalf of the respondent relies on the exceptional character of a prosecution appeal against sentence and appeal caution in not eroding the principle of double jeopardy: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [16]-[17]. The respondent sought to support the finding of Chowdhury DCJ that the sentence imposed by the Magistrate involving suspended imprisonment was outside the bounds of proper sentencing discretion by emphasising the mitigating factors in favour of the respondent, the factual matters referred to at [63] of the reasons and submitting that:
“At its highest, the [respondent’s] breach of trust exposed the wife to the risk of domestic violence, in circumstances where he knew that there was acrimony between the parties.”
- [48]The respondent also relies on the yardsticks afforded by the other cases (which, apart from O'Neill, were decisions of Magistrates).
- [49]It is critical to the disposition of this application, that there were two factors that informed the sentence that was imposed by the Magistrate: the significant risk of harm to which the respondent exposed a member of the public, namely Y, and the respondent’s breach of the public trust in him as a police officer not to abuse his position as a police officer.
- [50]The fact that X and Y were in a domestic relationship that had broken down and there was acrimony between the parties did not reduce the significance of the risk of harm to which Y was exposed by the respondent’s conduct.
- [51]Equating (at [86] of the reasons) the release of the unit number for Z’s address to the obligation of Y on the face of the order in the family law proceeding to disclose her address overlooked that Y may have had reasons at that stage for not complying with that order and that it was a matter for parties to the order (and not the respondent) to deal with any putative breach or variation of the order by an application to the court. The assistance the respondent gave to X was whole-hearted and enthusiastic and, in giving it, the respondent entirely assimilated himself with the position of X and abandoned any sense that he was a police officer. The respondent’s poor judgment in helping his friend X was tantamount to the respondent, in an extra-curial way, deciding to deal with Y’s failure to supply X with her full address, but without considering what Y’s explanation may, in fact, have been. The respondent’s conduct was exacerbated by the fact that he was a police officer. His search of the police computer system to see if there had been a domestic violence application on behalf of Y before he ascertained Y’s address was not sufficient to eliminate the risk of harm to Y to which Y was exposed by her full address being accessed and passed by the respondent onto X.
- [52]It was not a factor in any of the cases relied on by the respondent as yardsticks that the release of information by a police officer in breach of s 408E(1) and (2) exposed a member of the community to the risk of harm. As the Magistrate identified, despite the opinions of Mr Worthington and Dr Dodds, general deterrence (though reduced to some, but not a significant, degree) as a result of the respondent’s anxiety and PTSD at the time of the offending remained an important consideration in sentencing the respondent.
- [53]The Magistrate’s sentencing based on the two factors that informed the imposition of a wholly suspended sentence of imprisonment accorded with principle and authority. The material before the District Court on the appeal did not support a conclusion that there was an error in the exercise of the Magistrate’s sentencing discretion and there was no basis for his Honour to re-sentence the respondent on the ground the sentence was manifestly excessive.
The outcome of this appeal
- [54]For the purpose of the hearing of this application, the respondent was given leave to rely on his affidavit that deposed to the fact that as of 27 October 2020, he had completed the 140 hours of community service ordered in the District Court.
- [55]The respondent therefore submits that given the long history of this matter that commenced with the internal investigation by the ESC in 2016 and the fact that the respondent has completed the community service, the court should exercise its residual discretion and decline to interfere with the sentences imposed in the District Court. The respondent relies on the explanation of the residual discretion given by Morrison JA (with whom Sofronoff P and Mullins JA agreed) in Commissioner of Police v Broederlow (2020) 5 QR 296 at [35]-[39].
- [56]The respondent was on notice from 28 September 2020 or soon thereafter that the applicant was applying for leave to appeal against the orders made as a result of his success on the appeal to the District Court.
- [57]In the circumstances of this case, where the respondent succeeded in the District Court on the appeal from the Magistrate’s sentence, where there was no basis for setting aside the Magistrate’s sentences which appropriately reflected the need for general deterrence to prevent other police officers acting in breach of trust in a way that may put a member of the community at risk, the fact that the respondent completed the community service ordered by Chowdhury DCJ does not cause such an injustice to the respondent to be an impediment to orders being made in this Court that will have the effect of reinstating the Magistrate’s sentence.
- [58]The effective sentence imposed by the Magistrate was a wholly suspended term of imprisonment of two months for an operational period of 18 months. The fact that the same sentence was applied to each of the nine charges, despite the fact that the sentence was the appropriate penalty for the most serious of the charges, charge 7 and to reflect the totality of the offending for the other eight charges, was not a reason by itself to re-sentence the respondent. That the same sentence was imposed on each of the charges was not a matter relied on by the respondent to appeal to the District Court.
Orders
- [59]It follows that the orders should be:
- Leave to appeal granted.
- Appeal allowed.
- Set aside the orders made by Chowdhury DCJ on 1 September 2020.