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ROV v Commissioner of Police[2017] QDC 324

ROV v Commissioner of Police[2017] QDC 324

DISTRICT COURT OF QUEENSLAND

CITATION:

ROV v Commissioner of Police [2017] QDC 324

PARTIES:

ROV

(appellant)

v

Commissioner of Police

(respondent)

FILE NO/S:

1906/17

DIVISION:

District Court

PROCEEDING:

Appeal s 222 Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

7 December 2017 (delivered ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

7 December 2017

JUDGE:

Muir DCJ

ORDER:

  1. Appeal is allowed.
  2. The sentence imposed on 3 May 2017 is set aside and the defendant is resentenced to be released upon entering into a recognisance in the sum of $1500 conditioned that he be of good behaviour and appear for conviction and sentence if called on at any time within a period of two years.
  3. No conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – Where appellant was a police officer at all relevant times – where the appellant used the Queensland Police System QPRIME to access certain members of the public’s personal information without permission – where the appellant is charged with computer hacking and misuse under s 408E(1) of the Criminal Code 1899 (Qld) – where the appellant has a diagnosed psychiatric condition – where a successfully appealed case authority was relied upon by the Magistrate – whether the Magistrate erred in not having proper regard of the effect the appellant’s psychiatric condition had on the principle of general deterrence – whether the Magistrate erred by relying on an authority that had been successfully appealed – whether the appeal should be allowed.

Criminal Code 1899 (Qld) s 408E(1), (2), (3)

Justices Act 1886 (Qld), s 222

Penalties and Sentences Act 1992 (Qld), s 9(1)

David O'Neill v T.S. Frilingos (unreported, Botting DCJ, Brisbane, 13 March 2015), cited

House v R (1936) 55 CLR 499, followed

Police v Ben McAnany (unreported, Magistrate Shephard, Beaudesert,24 July 2017), cited

Police v Christopher Carey (unreported, Magistrate Hall, Brisbane, 21 November 2017), cited

Police v Clayton Binney (unreported, Magistrate Sturgess, Ipswich, 22 November 2017), cited

Police v Daniel Banks (unreported, Magistrate MacCallum, Ipswich, 7 November 2017), cited

Police v David Francis O'Neill (unreported, Magistrate Cull, Brisbane, 26 May 2014), cited

Police v Michael Guida (unreported, Magistrate Previtera, Brisbane, 23 November 2017), cited

Police v Michael Higgins (unreported, Magistrate MacCallum, Ipswich, 24 April 2017), cited

Police v Miranda O'Neill (unreported, Magistrate Cull, Brisbane, 26 May 2014), cited

Police v Peter Ashleigh Betts (unreported, Magistrate Shearer, Brisbane, 14 March 2016), cited

R v Goodger [2009] QCA 377, cited

R v Tsiaras [1996] 1 VR 398, followed

R v Verdins (2007) 16 VR 269, followed

R v Yarwood [2011] QCA 367, followed

COUNSEL:

C.R Gnech (sol) for the appellant

D Darwen for the respondent

SOLICITORS:

Queensland Police Union Legal Group for the appellant

Queensland Police Service for the respondent

Introduction

  1. [1]
    This is an appeal under s 222 of the Justices Act 1886 (Qld) against the sentence imposed on the appellant by an Acting Magistrate at the Southport Magistrates Court on the 3 May 2017. On that date, the appellant was convicted on his own plea of guilty of one charge of computer hacking and misuse pursuant to s 408E(1) of the Criminal Code 1899 (Qld). He was fined $4000 with no conviction recorded.
  1. [2]
    By his notice of appeal against sentence filed in the Southport District Court on 31 May 2017, the appellant appeals against his sentence on two grounds: first, that the Learned Magistrate erred in not having proper regard to the appellant’s psychiatric condition, and, second, the magistrate erred in having regard to the matter of Police v David Francis O'Neil which is the Queensland Magistrates Court decision 134165 of 2013 in circumstances where, unbeknown to the parties, that matter had been successfully appealed on 13 March 2015.

Relevant Legal Principles

  1. [3]
    The sentence imposed by the learned Magistrate involved the exercise of a discretion which this court may not interfere with unless an error of the kind identified in the House v R (1936) 55 CLR 499 at 504 to 505 has occurred.
  1. [4]
    It is not a sufficient basis that this court considers it might have taken a different course. It must appear that some error has been made in exercising the discretion. If the Magistrate acted upon a wrong principle; if he allowed extraneous, or irrelevant matters to guide, or affect him; if he made a mistake about the facts; if he did not take into account some material consideration, then his determination may be reviewed, and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

Relevant Facts

  1. [5]
    It is necessary, then, to consider this appeal upon a review of the transcript of the hearing below and the exhibits that were before the Magistrate together with his reasons. In summary, the case against the appellant was that at all relevant times, he was a serving member of the Queensland Police Service holding the rank of sergeant. In holding such a position, he had access to the Queensland Police Service computer system which is administered by the Commissioner of Police. The computer system contains confidential information about members of the public.
  1. [6]
    During the relevant period of some four months between 3 April 2016 and 10 April 2016, the appellant, on 80 separate occasions, used the Queensland Police Service computer system to access personal information about a number of persons including police officers, a sports personality and members of the public. The information was not obtained for the purpose of official police business on these occasions. An audit was conducted of the appellant’s computer use, and a spreadsheet was produced identifying the access of the police computer system.
  1. [7]
    There were no allegations that the appellant used this information adversely in any way. There was no suggestion that he gained, or attempted to gain any benefit, or caused, or attempted to cause any detriment. At the time, the appellant came to the court as a mature man of 40 years. A folder of materials was tendered to the court in the sentencing proceedings and was marked as an exhibit. A number of materials and cases were indexed and tabbed in this material.
  1. [8]
    In this material was a report from Dr James Dodds dated 24 April 2017. He saw the appellant on a number of occasions in March and April 2017. In his report, Dr Dodds’ opined that the appellant met the criteria for a diagnosis of post-traumatic stress disorder with symptoms of severe chronic major depressive disorder, chronic severe panic disorder, agoraphobia and dissociative amnesia. It seems that the appellant had been experiencing mental unwellness for at least five years. Although, he was, initially, unaware of it.
  1. [9]
    In Dr Dodds’ opinion, by early 2015, the appellant’s mental state had deteriorated to the point that he was severely suicidal, so he consulted his GP. The report sets out that the appellant was diagnosed with post-traumatic stress disorder as a result of a number of traumatic events substantially due to his employment as a police officer. These events, I will not repeat in detail except that they included having to attend harrowing suicide attempts, some of which resulted in deaths, and horrific accidents.
  1. [10]
    Relevantly and crucially in this case, on pages 2 and 3 of the report, an explanation is provided by Dr Dodds for the appellant’s conduct relating to this offence:

In March 2002 his wife, who is a personal trainer, was allegedly sexually assaulted while running with a client. This further exacerbated his post-traumatic stress disorder, but also meant that she became reluctant to leave their house.

One of the people who the appellant searched for on QPRIME was her alleged attacker. He wanted to find out where he lived, as he was concerned for his wife’s safety. The other people he searched for on QPRIME were friends from 15 years previously, and he reports that seeing that they were still alive helped lessen the intensity of his depression and suicidality. He reported that searching their names brought back better memories. A compounding factor behind this was that he had become very isolated and so embarrassed about how he was feeling that he did not want anyone to see him. So by contacting them via QPRIME, he felt less alone and desperate.

There are some people he searched that he had no clear recall of why he did so. This included a high-profile netball athlete. He reports definite dissociative episodes with respect to having amnesia elements for some of the traumatic events that he had witnessed and also considerable feelings of depersonalisation and detachment from some activities.

  1. [11]
    Ultimately, in Dr Dodds’ view, the appellant’s state of mind between 3 April and 10 August 2016 was impacted by severe post-traumatic stress disorder with dissociative features and very severe depressive symptoms and suicidality. He had frequent flashbacks, some so vivid he felt he was back immersed in the traumatic experiences. He had severe insomnia, and when he did briefly sleep, he would wake from nightmares. So vivid were they that his wife would have to orientate him to the fact he was not at work.
  1. [12]
    The appellant was in a ‘survivor mode’ and became totally emotionally detached and isolated from his friends and colleagues. He was aware of his diagnosis, but not fully aware of all the manifestations. He was afraid he would lose his job if the extent of his mental ill health became known. He was receiving treatment at the time, including seeing two clinical psychologists and taking appropriate prescribed medication, none of which, however, was helping him in a substantial way.
  1. [13]
    Ultimately, Dr Dodds concluded that that the appellant’s diagnosis was the significant causal factor for the offending conduct being committed. He also was of the opinion that the appellant would never re-offend in the future. He also noted that the appellant’s career in the police force had been the substantial cause of the psychological impact on his actions and diagnosis. Ultimately, the appellant’s diagnosis led to his medical retirement from the Queensland Police Service, and he will never work again as a police officer, or, perhaps, it seems, otherwise.

Analysis

  1. [14]
    It is submitted by the appellant, and I accept, that on the uncontroversial psychiatric evidence, the severity of the symptoms of the condition at the time of the appellant’s offending and sentence was significant and of the highest order. It is necessary, then, to look at how the Magistrate dealt with this medical evidence as it is relevant to the first ground of the appeal.
  1. [15]
    During the hearing of the proceeding, the following exchange took place between the appellant’s solicitor and the Magistrate:

The final submission I make, your Honour, is – if I could take your Honour to the case of Yarwood which is at tab 8, your Honour, at page 10 and 11 of that decision, just for the court record.

The Magistrate responded:

That was a fraud, from memory. I’m aware of it, though.

Solicitor for the appellant said:

Yes, your Honour. Just for the record, it’s R v Yarwood [2011] QCA 367. Your Honour, it sets out the considerations in sentence when a person is suffering a mental illness. It’s my submission that on page 11, points 3 and 4, in regards to general deterrence and specific deterrence are at the forefront of your considerations today. It’s my submission that there has been a significant causal factor, and there would be no need for your Honour to consider to place heavy reliance on general deterrence, or specific deterrence.

The Magistrate responded:

Well, I’m not quite sure that I’m with there. There certainly needs to be an element, in my view, of public deterrence, general deterrence, especially other members of the police force in this circumstance. And, certainly, there’s some features I – factors I need to take into account regarding the causal factors which may, or may not reduce the culpability of the defendant in relation to his accessing the information. But there certainly need to be some sort of general deterrence with – there’s certainly, I think – what you've told me now, there’s certainly no greater need, or, certainly, it can’t be an emphasis on personal deterrence. Having regard to the fact he’s not going to be a police officer any more especially, but I think there still needs to be an element of general deterrence.

To which the solicitor for the appellant said:

Your Honours – your Honour, in regard to that matter, I simply point your Honour to point 3 on page 11 where the Court of Appeal –

And the Magistrate said:

That quotes R v Tsiaras and Verdins.

The solicitor for the appellants then said:

Where it states general deterrence should be moderated, or eliminated as a sentencing consideration depending upon the nature and the severity of the symptoms exhibited by the offender, and my submission is you can’t get too much more severe.

To which the Magistrate responded:

Well, specific deterrence – I think you’re probably – but not on general deterrence, yes.

To which the solicitor responded:

Thank you, your Honour. All I can take your Honour to is the Court of Appeal saying it applies to general deterrence and specific deterrence.

In sentencing the appellant, the Magistrate then said:

I certainly need to take into account a number of things that have been discussed in some detail with Mr Gnech, and it’s certainly, in my view, of general deterrence to people while such as police officers, or people working in the public service who have access to limited databases that certainly accessed by anyone for other than work purposes will not be tolerated by the community, will not be tolerated by the State. There certainly needs to be a message sent in that regard, in my view.

His Honour then said:

I think that there have certainly been some mitigating factors for you with respect to your mental condition primarily. Certainly, that can be regarded as a mitigating factor.

And then later:

However, I am certainly of the view that there needs to be an element of general deterrence. Even if I take into account what has been referred to me by Mr Gnech regarding someone with a mental condition, certainly, I can accede that the element of personal deterrence in your case should – is certainly moderated, or ameliorated by your mental condition, but, certainly, the elements of general deterrence for other people committing these offences, or desirous of committing these offences, ought to be a large part of my sentence.

  1. [16]
    The appellant submits that the Magistrate erred in applying excessive weight to general deterrence in circumstances where the principles stated in R v Yarwood should have eliminated, or significantly reduced the appellant’s moral culpability and the factor of general deterrence and that incorrectly, general deterrence formed a large part of the sentence imposed.
  1. [17]
    In R v Yarwood [2011] QCA 367 at paragraph 24, her Honour White J restated the principles concerning mental illness in this sentencing process which had been initially stated in R v Tsiaras [1996] 1 VR 398 and again in R v Verdins (2007) 16 VR 269, as follows:

Impaired mental functioning, whether temporary or permanent the condition, is relevant to sentencing in, at least, the following six ways:

  1. (1)
    The condition may reduce moral culpability of the offending conduct as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances, and denunciation is less likely to be a relevant sentencing objective.
  2. (2)
    The condition may have been a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
  3. (3)
    Whether general deterrence should be moderated, or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender whether at the time of the offending, or at the date of sentence, or both.
  4. (4)
    Whether specific deterrence should be moderated, or eliminated as a sentencing consideration likewise depends on the nature and severity of the symptoms as exhibited by the offender, and the effect of the condition on the mental capacity of the offender whether at the time of the offending, or at the date of sentence, or both.
  5. (5)
    The existence of the condition at the date of sentencing or its foreseeable recurrence may mean that a given sentence will weigh more heavily on the offender than it would on a person of normal health.
  1. [18]
    Reference was also made to paragraph 25 of the decision in Yarwood where her Honour said:

The court explained the sentencing considerations identified in R v Tsiaras are not and were not intended to be only applicable to cases of serious psychiatric illnesses.

And at paragraph 26:

In this court, R v Goodger [2009] QCA 377, after setting out the relevant propositions of Justice of Appeal Keane, as he then was, said, “This court has accepted the proposition that generally speaking, a mental disorder short of insanity may lessen the moral culpability of an offender and so reduce the claims of general, or personal deterrence upon the sentencing discretion.

  1. [19]
    In my view, in light of this authority which the Magistrate was taken to at the time and considering his sentencing remarks, an obvious error has been made in the exercise of the Magistrate’s discretion in this case.
  1. [20]
    For completeness, I want to now say something about the second ground of appeal, and that was the Magistrate erred in having regard to the sentences imposed in the case of Police v David Francis O'Neill and Police v Peter Ashleigh Betts which relied on the Police v O'Neill case in circumstances where, unknown to his Honour and the parties, the decision of Police v David Francis O'Neill had been successfully appealed in the District Court and which had resulted in a significantly reduced sentence.
  1. [21]
    I accept that Botting J’s judgment of Police v David Francis O'Neill was not published, and it seems through no fault of the parties the Magistrate was led into error. Ultimately, though, the appeal judgment must be seen in the context that it was given; that it was based on parity of the sentences imposed on two co-accused, although I accept it is of some limited assistance given the few cases available that deal with sentences for these sort of matters.
  1. [22]
    Ultimately though, on appeal, the sentence of six months imprisonment wholly suspended for 15 months was set aside and, in lieu, Mr O'Neill was fined $2000, and no conviction was recorded. In that case, in 2014, two police officers were sentenced in the Brisbane Magistrates Court for computer hacking. Both were serving police detectives at the time, and both were accessing the police computer system and obtaining information and passing that information to Ms O'Neill’s brother who was operating a private investigation business.
  1. [23]
    Mr Robinson was also charged, that is, Ms O'Neill’s brother was charged in relation to those offences. Ms O'Neill pleaded guilty to 14 offences pursuant to s 408E(2) with the circumstances of aggravation. She was ordered to undertake two years’ probation. Mr O'Neill was charged and pleaded guilty to seven charges under s 408E(2) with the sentence of circumstances of aggravation, and he was originally sentenced to a period of six months imprisonment wholly suspended for 15 months.
  1. [24]
    In the decision of Betts, the Magistrate imposed a fine of $8000 and recorded a conviction. Mr Betts was a serving police detective at the time, and he was accessing the police computer system to identify drug dealers sourcing drugs for his own personal use and conducting checks upon women he identified on internet dating sites. The only precedent the learned Magistrate in that case was referred to was the decision of O'Neill, and the court in that case was not informed of the subsequent appeal in relation to O'Neill.
  1. [25]
    In the circumstances of this case, I consider that the Magistrate’s discretion has miscarried, as he did not consider as he was, in my view, bound to do, that general deterrence was of little relevance in his sentence of the appellant.
  1. [26]
    The respondent submits that the penalty was not so outside the appropriate range that it demonstrates inconsistency and unfairness. I do not accept this submission. In my view, the errors identified have resulted in a sentence that was manifestly excessive. It is, therefore, appropriate for this court to resentence the appellant.

Re-sentence

  1. [27]
    Turning now to resentence the appellant. I accept that there is little appellant case authority to assist with this appeal. I have read the material that was before the sentencing court, the report of Dr Dodds and the bundle of references, and I have considered all of the Magistrates Court decisions which deal with this type of offending that have been provided to me, that is, the Police v Miranda O'Neill, Magistrate Cull, 26 May 2014;  David O'Neill v Frilingos, a decision of the District Court of the 13th of March 2015;  the Police v Peter Betts, Magistrate Shearer, 14 March 2016;  the Police v Ben McAnany, Magistrate Shepherd, 24 July 2017;  Police v Michael Higgins, Magistrate McCallum, 24 April 2017;  the Police v Daniel Banks, Magistrate McCallum, 7 November 2017;  the Police v Christopher Cary, Magistrate Hall, 21 November 2017;  the Police v Clayton Binny, Magistrate Sturgess, 22 November 2017 and the Police v Michael Guida, Magistrate Previtera, 23 November 2017.
  1. [28]
    In these cases, the fines range from $1200 to $8000. Although, none of the cases are on all fours with the present case. Many are less serious, and some are more serious as the information was used, or disseminated. But most importantly, none of them had medical evidence linking the offending to a diagnosed condition, as is the case before me.
  1. [29]
    I accept that s 408E of the Criminal Code appears to be a unique provision within the Queensland criminal law, as it commences its existence as a simple offence and converts to a crime upon a circumstance of aggravation being proven.
  1. [30]
    Relevantly, s 408E provides:
  1. (1)
    A person who uses a restricted computer without the consent of the computer’s controller commits an offence.

The maximum penalty for this offence is two years’ imprisonment.

It is this provision under which the appellant has pleaded guilty to and not subparagraph (2), which states:

  1. (2)
    if the person causes, or intends to cause detriment, or damage, or gains, or intends to gain a benefit. In that case, the person commits a crime and is liable to imprisonment for five years.
  1. [31]
    Or subparagraph (3), which states:
  1. (3)
    If the person causes a detriment, or damage, or obtains a benefit for any person to the value of more than $5000, or intends to commit an indictable offence, the person commits a crime and is liable to imprisonment for 10 years.
  1. [32]
    As I have said, the offence for which I’m sentencing the appellant is one under s 408(E)(1), that is, a simple offence for which the maximum penalty is two years’ imprisonment.
  1. [33]
    The purpose for which a sentence may be imposed on an offender is set out in s 9(1) of the Penalties and Sentences Act 1992 and includes:
  1. (a)
    to punish the offender to an extent, or in a way that is just in all the circumstances;
  1. (b)
    to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; 
  1. (c)
    to deter the offender, or other persons from committing the same, or a similar offence;
  1. (d)
    to make it clear that the community acting through the court denounces the sort of conduct in which the offender was involved.
  1. [34]
    Section 9 (2) of the Penalties and Sentences Act sets out a number of matters the court must have regard to and includes under (d) the extent to which the offender is to blame for the offence. The culpability of the appellant in this case is a most relevant and important feature in light of the uncontested medical evidence.
  1. [35]
    The appellant submits, firstly, that in this case, a s 19 good behaviour bond, or alternatively, a fine of $1000 is appropriate.
  1. [36]
    The appellant is a material man of 40 years. He is married with three children and of good character without any prior criminal history. He pleaded guilty to these offences at an early stage. He is, on the material, in a terrible state; unable to work as a result of the post-traumatic stress diagnosis after a 12 or so year career in the police force, a career which is now over. He will never be a police officer again. What the appellant did was a serious breach of his position as a police officer over a four-month period on 80 occasions, but this conduct must be viewed in light of the medical report of Dr Dodds and also that there is no allegation of causing a detriment, or gaining a benefit. The appellant did not disseminate any information, and he did not use it in any way except, perhaps, to relive better memories of a time passed and to help him deal with the feelings of isolation and embarrassment at having and feeling mentally unwell.
  1. [37]
    In considering whether to make an order under s 19, the court must have, by s 18 of the Penalties and Sentences Act, regard to the offender’s character, age, health and mental condition and (b) the nature of the offence and (c) circumstances, if any, under which the offence was committed that makes the offence less serious than what it would be if it had been committed under other circumstances and (d) anything else to which the court considers it proper to have regard.

Orders

  1. [38]
    In balancing all the relevant considerations, I consider that an order under s 19 is appropriate. I therefore make the following orders:
  1. The appeal is allowed.
  1. The sentence imposed on 3 May 2017 is set aside, and in lieu, I order that the appellant be released upon entering into a recognisance in the sum of $1500 conditioned that he must be of good behaviour and appear for conviction and sentence if called on at any time within a period of two years.
  1. I order that there is no conviction recorded.
Close

Editorial Notes

  • Published Case Name:

    ROV v Commissioner of Police

  • Shortened Case Name:

    ROV v Commissioner of Police

  • MNC:

    [2017] QDC 324

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    07 Dec 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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