New South Wales Court of Criminal Appeal CITATION : REGINA v IRWIN [1999] NSWCCA 361 FILE NUMBER(S) : CCA 60228/99 HEARING DATE(S) : Tuesday, 12 October 1999 JUDGMENT DATE : 12 October 1999 PARTIES : The Crown Robert James Irwin (Respondent) JUDGMENT OF : Newman J at 1; Studdert J at 57; Hulme J at 58 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0662 LOWER COURT JUDICIAL OFFICER : Woods QC DCJ COUNSEL : P G Berman (Crown) S J Odgers (Respondent) SOLICITORS : S E O'Connor (Crown) Trevor Nyman & Company (Respondent) CATCHWORDS : Crown appeal; inadequacy of sentence; act with intent to pervert the course of justice; give false evidence; bribery; police corruption. Criminal Appeal Act 1912 ACTS CITED : Crimes Act Police Integrity Commission Act Confiscation of Proceeds of Crime Act 1989 Griffith v The Queen (1977) 137 CLR 293 at 310 CASES CITED: R v Pangallo (1991) 56 A Crim R 441 at 443 Ibbs v The Queen (1991) 163 CLR 447 R v Nomchong, Court of Criminal Appeal, unreported, 10 April 1997 DECISION : Crown appeal upheld IN THE COURT OF CRIMINAL APPEAL 60228/99 NEWMAN J STUDDERT J HULME J TUESDAY, 12 OCTOBER 1999 REGINA v Robert James IRWIN JUDGMENT 1 NEWMAN J: This is an appeal by the Crown brought pursuant to s 5D of the Criminal Appeal Act 1912. The respondent to the appeal was sentenced by his Honour, Judge Woods QC at the District Court in Sydney on 27 April 1999. 2 Before his Honour the respondent was initially arraigned on two charges and an alternative charge. In fact, the respondent pleaded guilty to the alternative charge and the second charge. 3 The alternative charge to which he pleaded guilty was that between 2 July and 6 December 1997 he did an act, namely, incite a person to tamper with items seized by the New South Wales police at 1 Jacques Street, Kingsford, on 2 July 1997, with an intent thereby to pervert the course of justice. The Crown accepted the plea of guilty to that alternative charge in satisfaction of the first count on the indictment. 4 The maximum penalty imposed by s 319 of the Crimes Act for the crime of doing an act with intent to pervert the course of justice is 14 years penal servitude. The second count on the indictment, to which the respondent pleaded guilty, was that he did knowingly give false evidence on 9 December 1997 at Sydney, to the Police Integrity Commission. Section 107 of the Police Integrity Commission Act imposes a maximum penalty of five years imprisonment or a fine of 200 penalty units or both. 5 In any event, his Honour sentenced the respondent on the first count to a minimum term of twelve months penal servitude dating from 27 April 1999 and expiring on 26 April 2000. He didn't find special circumstances and imposed what I would describe as an orthodox additional term of four months commencing April 2000 and expiring on 26 August 2000. 6 In relation to the second count, his Honour imposed a fixed term of twelve months imprisonment to be served concurrently with the sentence imposed on the first count. In addition, pursuant to s 24 of the Confiscation of Proceeds of Crime Act 1989, his Honour made an order that the respondent pay the sum of $8,220 to the state of New South Wales. 7 The Crown's basic submission is that the sentence imposed by his Honour is so manifestly inadequate that this Court should interfere. 8 I turn then to the facts of the matter as found by his Honour. At the time of the commission of the offence the respondent was a Det Sgt in the New South Wales police service. He had known one Leslie Kalache for some years, having once lived in the same street at Maroubra as Kalache. They had been friends for a number of years, having both social and sporting associations. Indeed, at a time when the respondent's wife was dying of cancer - she died in 1993 - Kalache had provided him with both solace and assistance during that sad time. 9 Kalache had, prior to 1997, a criminal record in relation to drug dealing. In May 1997 an investigation of Kalache's drug dealing was commenced by the police and the Crime Commission. The name given to that investigation was Operation Gymea. One of the police involved in that operation was a Det Sen Const G. I might add, in the proceedings before his Honour, both in relation to this respondent and also one McDonald, his Honour, quite properly, made an order suppressing the publication of G's name, and I propose a similar order be made here. 10 On 2 July 1997 a search warrant was executed by police on the premises at 1 Jacques Street, Kingsford. As a consequence of that search the police found a large commercial quantity of amphetamines, namely 3.054 kg, packed in plastic bags, as well as equipment involved in the drug trade, including electronic scales. 11 A listening device had been lawfully installed at the respondent's home at 14 Royal Street, Maroubra. 12 At 7.10am on Thursday 3 July a conversation was recorded at those premises between Kalache and the respondent, in which Kalache was regarded as giving the respondent $500 and referred to the police having located amphetamines and finding out the name of "Les". Kalache was recorded as saying, "I couldn't handle it if me prints were on it, on the bag, OK?". Kalache referred, during the course of that conversation, to the seizure of "two bags of lou" - criminal patois, as I understand it, for amphetamines. 13 In his reasons on sentence his Honour, in my view, correctly inferred that Kalache was thus seeking the respondent's help to suppress evidence which had been gleaned against him. Kalache was subsequently recorded on a listening device, which had been installed in his place of residence, as having discussions with associates saying that the respondent would in turn speak to a Det Sgt Craig McDonald who would then approach Det Sen Con G. 14 On the afternoon on 3 July Det Sgt McDonald rang the respondent's office. The respondent was then working in another police operation code named Bax and later was observed meeting with him. Following that meeting the respondent and Kalache, having spoken on the telephone, dined together at a restaurant. 15 In the meantime McDonald had contacted G seeking to meet him. G advised his superiors of the contact and received their approval to ascertain what McDonald was about. I should say that Det G at all times operated in the best traditions of policing and at all times with honour. 16 Between 4 and 8 July McDonald, Kalache and the respondent maintained contact. On 8 July McDonald met G at the Maroubra police station. There McDonald referred to the search of premises at Jacques Street, Kingsford, mentioning that Kalache's fingerprints might have been found on certain items. He asked G to ring him with the fingerprints results. 17 That evening G and McDonald met again at a motor boat club at Sans Souci. There McDonald requested G to wipe any fingerprints found in the Jacques Street search telling G he would be paid $5,000 plus other amounts should he do so. 18 On Friday 11 July 1997 at 10.30am G rang McDonald and told him that this had been done. I should have it noted that it had not been done. 19 At 4.52pm McDonald met G at the back of Maroubra police station where G told McDonald that he had eliminated any fingerprints from the items taken from Jacques Street, Kingsford, before those items were taken to the fingerprint section. 20 McDonald and the respondent were observed later that evening to be conversing in and about the Doncaster Hotel at Randwick. 21 A meeting was held on the morning of Wednesday 16 July 1997 between the respondent, G and McDonald, when McDonald handed G $500. The respondent was observed meeting with Kalache that evening at a street corner in Maroubra. 22 Another meting was held between G and McDonald again at the Doncaster Hotel. At 6pm on Wednesday 23 July 1997 G told McDonald that he had been advised by the fingerprint section that no fingerprints had been located on the relevant objects seized at Jacques Street, Kingsford. Discussion was then held as to payments to be made to G. 23 At 10.42pm that evening a listening device installed at the respondent's home recorded the arrival of McDonald and the respondent stepping outside the house to speak to him. 24 On 24 July the respondent rang Kalache telling him the good news and met with Kalache at a restaurant at Coogee that evening. They were observed to talk outside the restaurant at one stage. 25 On Saturday 26 July at 9.52am Kalache was recorded at his flat telling associates, "Our bloke got the prints...he wiped them all". 26 On Friday 1 August 1997 Kalache was recorded at his flat speaking to the respondent. Kalache was recorded as saying, "There's seven in there and there's one in that, so make that, make that seven out of the way". This apparently, as indeed his Honour found, adverted to a payment of $7,000. The respondent indicated to Kalache that he owed rates to Randwick Council in the sum of $210. Kalache said that he would give the respondent that sum. 27 At 4.14pm the Randwick Council records show a payment of $207 in cash in respect of rates owed by the respondent were paid. 28 On that afternoon and on 8 August 1997, at the Doncaster Hotel, McDonald handed G two payments of $1,000. 29 On 1 October 1997 G telephoned McDonald telling him that Kalache had been arrested for serious drug offences. 30 On 2 October McDonald met with G at the Novotel hotel at Brighton-le-Sands, paid him $100 in cash and said he was not going to go near Kalache at the moment, but promised further payments to G. 31 At one meeting between the pair at Concord, McDonald told G that he had learned of an investigation being conducted into the respondent's relationship with Kalache. 32 Having met at the Doncaster Hotel on the morning of Saturday 1 November 1997, G and McDonald then went to a carpark at Randwick racecourse to discuss, inter alia, the respondent's association with Kalache and presence of listening devices at Kalache's residence. During the course of the conversation McDonald gave G specific instructions about what he should say if he was interviewed. 33 A similar conversation took place on 21 November 1997 after summonses had been issued for police from Task Force Bax, for which the respondent, as I have said, had been working, to attend the Police Integrity Commission. 34 Subsequent discussions between G and McDonald relating to the Police Integrity Commission hearing resulted in McDonald assuring G that the respondent would not disclose what had gone on over Kalache. Similar discussions were held between that pair on 3 and 5 December 1997. 35 In all, McDonald paid G some $3,300. 36 On 1, 9 and 10 December 1997 the respondent gave evidence at the Police Integrity Commission. There he denied that Kalache had ever spoken to him about fingerprints on drug exhibits. This, of course, was a lie. 37 In his findings of fact his Honour concluded, and there is no real challenge to this finding made by the Crown, that Kalache in fact paid the respondent the sum of $8,220, the amount which his Honour declared should be forfeited to the Crown. 38 This plainly involves a very serious breach of the criminal law when viewed in objective terms. It not only involved the crime of intent to pervert the course of justice, but it involved a situation where a quantity of drugs had been seized from a drug dealer and the object of the attempt to pervert the course of justice was to ensure that a drug dealer evaded the course of the law. 39 While, as Mr Odgers correctly submitted this morning, there is no firm evidence that the respondent was aware that it was a large commercial quantity of amphetamines, as it was, which could have given rise to a penalty of life imprisonment, the fact is that the respondent had been told by Kalache at the meeting at 7.10am on 3 July that there were "two bags of lou". So the respondent was, at all times, clearly aware that there was a quantity of amphetamines involved and was aware of Kalache's desire to evade detection. 40 Another matter of importance is the fact that as a consequence of the respondent's activities, one other policeman was certainly corrupted, namely, Det Sgt McDonald, and an attempt was made to corrupt another policeman, Det Sen Const G who, to his credit, declined to be so corrupted: A very serious breach of the criminal law involving two crimes, one which carries, as I have said, a maximum penalty of fourteen years penal servitude and the other a maximum penalty of five years imprisonment. 41 His Honour, in finding as he did, was heavily influenced by mitigating circumstances raised on behalf of the respondent. Those mitigating circumstances related to the manner in which the relationship between the respondent and Kalache had been formed, particularly during the period when the respondent's wife was ill and eventually dying. He relied upon the fact that following the death of his wife the respondent had been drinking excessively and had entered into a marriage with a woman of much younger years than himself, which ended after some eight months disastrously. His wife died in 1993, which gave rise to an emotional crisis. 42 His Honour's remarks on sentence found that somehow Kalache had manipulated himself into a close relationship with the respondent. Certainly it was open to conclude that the respondent and Kalache were friends. However, I need not dwell any further on that. 43 While the respondent was aware that Kalache had a previous criminal history, he had, as his Honour found, believed that prior to these events he, Kalache, had changed his ways. 44 His Honour relied upon the fact that Kalache was a manipulative person. He took into account also the fact that the respondent had pleaded guilty. He stated that the respondent had a high level of shame and contrition. That finding seems to have been based on evidence given by a lady with whom the respondent had formed an association, one Jennifer May Graham. He also adverted to the respondent's prior good character, service in the police force in the past, the fact that the applicant had lost not only his police career as a consequence of his actions, but loss of financial entitlements as well and then the fact that being a police officer in incarceration, he would suffer much more hardship than an ordinary prisoner. 45 It is trite law that Crown appeals should only be brought in extraordinary cases. As Barwick CJ put it in Griffith v The Queen (1977) 137 CLR 293 at 310 such appeals should be a rarity. They should be brought only to establish some matter of principle and to allow this Court to lay down principles for the governance and guidance of courts exercising criminal jurisdiction. 46 Here, the question is whether the sentence passed by his Honour is inadequate as to be indicative of error or departure from principle. In my view it is. The maximum penalty imposed by the Crimes Act is 14 years for the first count. As has been said in many cases, this is an offence which strikes at the heart of justice. Lee CJ at CL observed in R v Pangallo (1991) 56 A Crim R 441 at 443: "In my view, the crime of bribery is always to be regarded as one which strikes at the very heart of the justice system and it must be severely punished whenever it is detected." 47 In the instant case, while there were matters raised in mitigation, the objective circumstances of the crime in the first count were such that, in my view, it places this matter squarely in the category of the worst type of case see Ibbs v The Queen (1991) 163 CLR 447. Not only was the intention of the respondent to obviate the risk of a drug dealer being brought to justice, but also his conduct involved the corruption of one other senior policeman and the attempted corruption of another. Furthermore, it was a crime committed by a person holding high rank within the police force, that of detective sergeant. A matter of rank, I might say, clearly absent in terms of reference by his Honour, either in his judgment in this case or in the reasons for sentence when he sentenced McDonald. In my view, these factors combine to put it within that category. 48 Even taking into account the not inconsiderable matters raised in mitigation, to suggest that a sentence which involves a minimum term of twelve months is anywhere near the range of sentence which should be passed is, in my view, incorrect. 49 Accordingly, I am of the view that on the first count his Honour fell significantly into error. When one compares the decision of this Court in R v Nomchong Court of Criminal Appeal, unreported, 10 April 1997 a crown appeal involving a traffic offence, where a sergeant of police attempted to bribe a constable, a sentence of one year and three months was thought to be, on appeal, an appropriate sentence. The disparity between the sentence passed here and that in Nomchong, having regard to the gulf between the crimes sought to be hidden by the conduct of the respective respondents, is such as to illustrate how much in error his Honour fell. 50 As far as the crime of giving false evidence before the Royal Commission is concerned, again it is a matter which strikes squarely at the heart of our system of justice. In my view his Honour should have, even having regard to principles of totality, imposed a cumulative sentence in respect of that other charge. If in sentencing a serious crime, such as giving false evidence in such a situation, is to be treated in the normal course of events as being one which should be dealt with by concurrent sentencing, the effect is that the person is not punished at all for such an offence. There must be a sanction, in my view, to bring home to people that when they are giving evidence, either before courts or before Royal Commissions, or before any other form of formal enquiry of this type, the truth must be paramount. 51 Having said that, the question still arises as to whether or not this Court should exercise its discretion to interfere. In my view, his Honour's sentence is so manifestly inadequate that this Court should. 52 The matter was raised in terms of parity relating to the sentence passed by his Honour on the co-offender McDonald. McDonald was sentenced to a total sentence of three years, constructed as to a minimum term of 18 months and an additional term of 18 months. McDonald, of course, was sentenced after the respondent here and his Honour, in determining the sentence for McDonald, relied upon the sentence he had passed upon the respondent. In fact, he drew a distinction between the matters of mitigation raised in McDonald's case as against the matters raised by the respondent, finding that the matters raised by the respondent were of greater significance than those raised by McDonald. He did observe, in McDonald's case, in the absence of mitigation, a minimum term of three to four years would have been appropriate for either McDonald or the respondent. 53 Let me say I do not agree that a minimum sentence of perhaps three to four years in a case as serious as this would represent an adequate sentence. I do not find that the respondent could have any sense of grievance in terms of Lowe's case (154 CLR 606), should the result of this appeal be that he serves a longer sentence than McDonald. It is true that no appeal has been lodged by the Crown in relation to McDonald's case. Having read the reasons for sentence by his Honour in McDonald's case, I have certainly formed a prima facie view that McDonald, like the respondent, has been set a very inadequate penalty for a very severe crime. I say no more than that. 54 The result is that I am of the view that the respondent can have no sense of grievance in the appropriate sense. Accordingly, I am of the view that this Court should in fact interfere in this case. While I am of the view that the proper sentencing discretion would have involved the passing of a cumulative sentence in relation to the false evidence the respondent gave at the Royal Commission, having regard, both, to concepts of double jeopardy and also of totality, I am of the view that this Court should, like his Honour, impose a concurrent sentence in relation to the second matter. 55 While it was urged upon the court by Mr Odgers of counsel that there were three reasons why special circumstances should be found, should this Court interfere, I am of the view that his Honour in fact correctly did not find special circumstances here and that, accordingly, any sentence imposed by this Court should reflect the normal orthodox ratio between the minimum and maximum terms as set by the Sentencing Act. Again I stress that the sentence I would now propose is not the sentence which I would have passed, had I been the trial judge. I would have passed a sentence which would have, in fact, resulted in the respondent being imprisoned for a much longer term than that which I propose. 56 The orders which I propose are these: 1. Appeal upheld. 2. Sentence imposed by his Honour Judge Woods QC is quashed. In lieu thereof a sentence constructed of a minimum term of three years, commencing on 27 April 1999 and expiring on 26 April 2002 be imposed, with an additional of term of one year commencing on 27 April 2002 and expiring on 26 April 2003. 3. In relation to the second count, a fixed term of imprisonment of two years commencing on 27 April 1999 and expiring on 26 April 2001. 57 STUDDERT J: I agree. 58 HULME J: The presiding judge has stated the facts in this matter and referred to the relevant sections of the Crimes Act. I can, accordingly, be brief. 59 In my view, in light of those facts and those provisions, the effective sentence passed on the respondent was derisory. Against a statutory maximum of 14 years for the first offence, the respondent's position as a detective sergeant and his actions in attempting (1) to corrupt other police officers and (2) to enable a drug dealer, either with knowledge of the magnitude of that person's offence or not, or not caring about the quantity of drug involved, to escape punishment by removing fingerprints incriminating that person, required a sentence which, given the respondent's subjective circumstances, was one of at least five years minimum term. 60 It was said in Nomchong unreported, Court of Criminal Appeal, 10 April 1997) that it is important that sentences in these matters deter other police officers who may be inclined to similar conduct. The findings of the recent Royal Commission proved beyond any doubt that there has not been sufficient deterrence in this State to police officers with the inclinations of the respondent. 61 Furthermore, the sentencing judge's decision on the appropriate sentence on the first count was affected by a number of errors. He found that there was a likelihood that Kalache, in effect seduced the respondent into giving him the support and assistance which he did and that the sentence was one which should be significantly mitigated by the insidious manner in which Kalache played on Irwin. There was no evidence whatsoever which would justify those conclusions. It may be, as one witness deposed, that Kalache was manipulative in his manner. However, the respondent gave no evidence and the sentencing judge's conclusion that the respondent was influenced by that manner is one which is just unsupported. 62 His Honour said also that the breast cancer and death of the respondent's wife "must have rendered him vulnerable and I find did render him vulnerable to the attentions of Kalache." Undoubtedly Kalache provided friendly assistance to the respondent, but again, the respondent gave no evidence to justify these findings and in the absence of that evidence or any other compelling evidence to similar effect - and there was none - the findings were unjustified. 63 The second offence required an additional punishment. The object of enquiries before the Police Integrity Commission is to find out the truth. The function of that Commission is severely hampered if those before it do not tell the truth and of necessity one may anticipate that many who are asked to appear are asked because they have been guilty of offences. In providing the sanction which it has for not being truthful before the Commission, Parliament clearly intends to encourage persons, even those guilty of offences, to confess and not compound their criminality. It is essential, in my view, that sentencing imposed on persons committing offences, such as the second one with which the respondent was charged, be and be seen to be a deterrent on those who commit such offences. 64 As was said in Aristodemou unreported, Court of Criminal Appeal, 30 June 1994: "False evidence strikes at the whole bases of the administration of justice and indeed it undermines the whole bases of it. The purpose of an appropriate sentence in this class of case is not only to punish the offender, but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this class of case." 65 Before the Commission the respondent indulged in not merely one untruth, but in a long series of knowingly untruthful answers. Against the statutory maximum of five years for that offence, his conduct, in my view, merited an additional minimum term of the order of two years. Others must learn that they will be similarly punished if they aggravate their criminality by lying before the Commission. 66 Like my brethren, I do not regard the sentence which was imposed on McDonald in this case as one which should influence the decision of this Court. I acknowledge that the principle of totality requires that the terms I have mentioned be not simply accumulated, but recognising that and recognising the principle that in this Court the sentence which should be imposed on a crown appeal is at the bottom of the range which should have been imposed at first instance, in my view sentences including not less than a minimum term of five years should have been imposed. Being in the minority, it is unnecessary for me to say more. 67 NEWMAN J: The orders of the court will be of as I have said. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.