New South Wales Supreme Court CITATION : R v Patison [2002] NSWSC 1248 CURRENT JURISDICTION: Common Law Division Criminal FILE NUMBER(S) : SC 70086/02 HEARING DATE(S) : 10 December 2002 JUDGMENT DATE : 20 December 2002 PARTIES : David Phillip Patison JUDGMENT OF : Dunford J COUNSEL : PE Barrett (Crown) RW Hood (Patison) SOLICITORS : SE O'Connor (Solicitor for Public Prosecutions) Oates & Smith Solicitors (Patison) CATCHWORDS : SENTENCING - police corruption - bribery - pervert course of justice, etc Crimes (Sentencing Procedure) Act 1999, ss 21A, 32, 44 LEGISLATION CITED : Crimes Act 1900, ss 249B, 319 Police Service Act 1990, ss 7, 200 Drug Misuse & Trafficking Act 1985, ss 25 & 32 R v Pangallo (1991) 56 A Crim R 441 Pearce v The Queen [1998] HCA 57, 194 CLR 610 R v Gardiner [2002] NSWCCA 209 R v Dougan (NSWCCA - 2 July 1987) CASES CITED : R v Nomchong (NSWCCA - 13 May 1993) R v Hilder (NSWCCA - 13 May 1993) R v Taouk (1993) 65 A Crim R 387 R v Irwin [1999] NSWCA 361 R v Simpson (2001) NSWLR 704 R v Capar [2002] NSWCCA 517 DECISION : See para 23. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL DUNFORD J Friday, 20 DECEMBER 2002 70086/02 David Phillip PATISON SENTENCE 1 His Honour: The prisoner, David Phillip Patison, stands for sentence having pleaded guilty to three counts of act with intent to pervert the course of justice, two counts of solicit corrupt reward, three counts of solicit bribe and two counts of supply prohibited drug. He has also asked that a number of other matters be taken into account in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999, namely four counts of solicit bribe, three counts of give bribe to member of police force, two counts of solicit corrupt reward, and also steal from dwelling, larceny, hinder investigation of serious offence, receive corrupt reward and receive bribe. 2 The facts are set out in the Statement of Agreed Facts (Ex C) and there is no need to repeat them in detail. In summary they disclose a persistent and organised course of police corruption over almost a whole year, manifested in a number of different ways, including failing to seize or disclose all of the prohibited drugs or cash located during the execution of search warrants, soliciting and receiving bribes from offenders, sharing such bribes with other police officers, reducing the amount of drugs discovered so that offenders who had paid the bribes were charged with lesser offences, with the result that they were granted bail and were liable to lesser penalties, and not giving the full facts subsequently to the court, arranging contact between two drug dealers to facilitate their trafficking, arranging for a drug dealer to obtain bail despite a long criminal record in return for payment of $10,000, and allowing a known drug dealer to continue supplying heroin in return for weekly payments. These activities were based at Manly Police Station where the prisoner was serving as a Detective Senior Constable and were captured on video and legally authorised listening devices worn by an undercover police officer purporting to work with the prisoner and his accomplices. 3 The offences in the indictment carry the following maximum penalties: · Act with intent to pervert the course of justice (Counts 1, 3 & 4): 14 years imprisonment, Crimes Act 1900, s 319 · Solicit, receive or pay bribe (Counts 2, 5 & 10): 7 years imprisonment or fine of $22,000 or both, Police Service Act 1990, s 200 · Supply prohibited drugs (Count 6 & 9): 15 years imprisonment or fine of $220,000 or both: Drug Misuse & Trafficking Act 1985, ss 25 & 32 · Solicit or receive corrupt reward (Counts 7 & 8): 7 years imprisonment, Crimes Act 1900, s 249B. 4 Other offences listed in the Form 1's carry the following maximum penalties: · Steal from Dwelling: 7 years imprisonment, Crimes Act 1900, s 148 · Larceny: 5 years imprisonment, Crimes Act 1900, s 117 · Hinder Investigation of a Serious Offence: 7 years imprisonment, Crimes Act 1900, s 315. 5 The offences committed by the prisoner disclose a very serious degree of criminality. The Police Service exists for the prevention and detection of crime and s 7 of the Police Service Act 1990 requires each officer to act in a manner which, inter alia, places integrity above all, upholds the rule of law, preserves the rights and freedoms of individuals, and ensures that authority is exercised responsibly, and each police officer is required to swear by oath or affirmation to "well and truly serve … without favour or affection, malice or ill-will …" 6 To act in the manner in which the prisoner acted constitutes a complete abdication of his responsibilities and the requirements to which I have referred, and is a betrayal of the trust placed in him. It also tends to bring the whole Police Force into disrepute and makes it more difficult for honest officers to perform their functions. Bribery in particular is always to be regarded as an offence which strikes at the very heart of the justice system and must be severely punished whenever it is detected: R v Pangallo (1991) 56 A Crim R 441 at 443, and likewise any other act done with intent to pervert the course of justice. 7 It is of particular concern that notwithstanding the Royal Commission into the Police Service (the Wood Royal Commission), in 1994-95, the police corruption and misconduct disclosed in such Royal Commission, and the publicity given to efforts to "clean up" the Police Service as a consequence of such Royal Commission, such corruption and misconduct has continued as before and the prisoner has been part of it. 8 The prisoner was born on 27 October 1959, is now aged 43, and married with a 15-year-old son from a previous marriage who spends time with him each day after school. He was sworn in as a Constable on 5 September 1979 and initially was stationed at Mosman and then at North Sydney doing general duties. In 1983 he served 12 months in the drug unit at Kings Cross after which he returned to Mosman. From 1985 to 1988 he did detective work at Manly and Dee Why and he was then transferred to the Regional Crime Squad at Chatswood. There he served about three years in the Sexual Assault Unit followed by three years in the Armed Hold-Up Squad and three years in the Drug Unit. In 1996 he was transferred to Manly as a detective doing general detective work and he continued there until December 2000 when he was suspended. 9 He said that whilst at Chatswood he observed corruption in different forms and was involved in it, but after his return to Manly he was not initially involved. However, following the failure of an application by him for promotion whilst he was at Chatswood, and an application for a transfer to the fraud squad whilst at Manly, he became more cynical concerning the Police Force. 10 Following a couple of stressful situations in which he found himself, he was off work for about six weeks on stress leave. Having returned to work, possibly prematurely, he was subsequently involved in another incident which caused him to breakdown, which he thought would be perceived by his fellow officers as a weakness. 11 He said that when he was first stationed at Manly he was involved in what is sometimes referred to as "noble cause" corruption, particularly the loading of defendants and fabrication of evidence and that this continued for some time whilst he was at Chatswood. Two years after his return to Manly in 1996 he became involved in the corruption which gives rise to the charges that are before the Court. 12 He claimed he became involved because it was part of the culture in the Police Service and particularly when drinking with colleagues there was talk of others doing it, and if you showed a propensity against such conduct you would find yourself out of the unit. 13 He told Wendy Lee Buchanan, psychologist, (Ex 3) that he had been present when others were dishonest and had not objected when money had been handed to him, and that it was difficult not to accept it, as the other officers would not associate with people who were not "with them". He said that the attitude of the group was that it was not so serious as it was only criminals who were suffering. 14 He admitted that his conduct brought much shame on the Police Service and that he let down his fellow officers and the community as a whole. He wrote a letter apologising to the Commissioner of Police for his conduct and also one to the President of the Police Association and has given assistance to the authorities. Details of his assistance are contained in Ex D and its disclosures are regarded as truthful and reliable by investigators and include matters not previously known to them. 15 I am satisfied that he is sincere in his remorse and contrition, and is unlikely to offend again (although of course he will never have the opportunity to offend in a similar manner), but I have no doubt that if he had not been caught, his corrupt conduct would have continued indefinitely. 16 As a result of his conduct he has been dismissed from the Police Service and has lost his previous good reputation, his employment and all his superannuation benefits, except for his own contributions, and he will need to find some other form of employment on his release. He has repaid to the authorities approximately $48,000 which was assessed as moneys he obtained by his illegal activities and also the sum of $8,000 part of the proceeds of such activity which he had concealed at home. He also gave evidence before the Police Integrity Commission and this attracted a considerable amount of unfavourable publicity for him. 17 He has been active in the community as a member, and for a time President, of the South Curl Curl Surf Lifesaving Club, and with his wife has been engaged in fundraising activities for charitable purposes. He has the continued support of his wife, but realises that he has let his 15-year-old son down at an important stage in the son's development. 18 As I have said, the offences are of a most serious nature, and the sentences must reflect not only retribution and community condemnation of the prisoner's conduct but considerations of general deterrence are of major importance, to deter any other police officer minded to act in a similar manner. Having regard to his early pleas of guilty which were entered on first arraignment in this Court, his assistance to the authorities, and what I am satisfied is his genuine contrition, I consider that an overall discount in the order of 30% is appropriate, but in accordance with Pearce v The Queen [1998] HCA 57, 194 CLR 610, it is necessary to fix appropriate sentences for each of the counts in the indictment and then, in order to give effect to the principle of totality, to make some of these sentences wholly or partly concurrent with each other. 19 I was referred to a number of cases including R v Gardiner [2002] NSWCCA 209, R v Dougan (NSWCCA – 2 July 1987), R v Pangallo (1991) 56 A Crim R 441, R v Nomchong (NSWCCA – 13 May 1993), R v Hilder (NSWCCA – 13 May 1993), R v Taouk (1993) 65 A Crim R 387, R v Irwin [1999] NSWCA 361; but although helpful, they deal with isolated cases of police corruption, bribery and perverting the course of justice involving one or two instances and not with systematic corruption over a lengthy period of time involving a number of discrete offences such as the present case. 20 I have in fixing the head sentence taken account of the fact that because the prisoner is a former policeman and because of his assistance to the authorities, his incarceration will be more onerous as detailed in Ex D but having been taken into account in this way it cannot then amount to special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act 1999 for the reasons explained in R v Simpson (2001) 53 NSWLR 704 and R v Capar [2002] NSWCCA 517. However, I do find that there are special circumstances in the accumulation of sentences leading to a slight reduction in the total length of the non-parole periods below three quarters of the total length of the head sentences. In fixing the sentences I have taken into account the matters set out in s 21A of that Act. 21 In cases where I impose a fixed term with no non-parole period it is because of the concurrency of other sentences. In fixing the concurrency of sentences I have regard to the fact that counts 1, 5 and 6 all involve Luke Benbow, whilst counts 7, 8 and 9 all involve Vincent Caccamo. 22 The sentences will be backdated to 10 December 2002, the day on which the prisoner went into custody. 23 David Phillip Patison, for the offences to which you have pleaded guilty and in each case taking into account the offences on the relevant Form 1, I sentence you as follows: Count 2 – Imprisonment for a fixed term of 3 years to commence 10 December 2002 and expire 9 December 2005. Count 3 – Imprisonment for a fixed term of 3 years to commence 10 December 2002 and expire 9 December 2005. Count 4 – Imprisonment for 4 years to commence 10 December 2002 and expire 9 December 2006 and I fix a non-parole period of 3 years to expire 9 December 2005. Count 10 – Imprisonment for a fixed term of 3 years to commence 10 December 2002 and expire 9 December 2005. The sentences on counts 2, 3, 4 and 10 are to be concurrent with each other. Count 1 – Imprisonment for a fixed term of 4 years to commence 10 December 2003 and expire 9 December 2007. Count 5 – Imprisonment for a fixed term of 3 years to commence 10 December 2003 and expire 9 December 2006. Count 6 – Imprisonment for 5 years to commence 10 December 2003 and expire 9 December 2008 and I fix a non-parole period of 3 years to expire 9 December 2006. The sentences on counts 1, 5 and 6 are to be concurrent with each other and partly concurrent and partly accumulative with the sentences on counts 2, 3, 4 and 10. Count 7 – Imprisonment for a fixed term of 3 years to commence 10 December 2004 and expire 9 December 2007. Count 8 – Imprisonment for a fixed term of 3 years to commence 10 December 2004 and expire 9 December 2007. Count 9 – Imprisonment for 5 years to commence 10 December 2004 and expire 9 December 2009, and I fix a non-parole period of 3 years to expire 9 December 2007. The sentences on counts 7, 8 and 9 are to be concurrent with each other and partly concurrent and partly accumulative with the sentences on counts 2, 3, 4, 10, 1, 5 and 6. The aggregation of sentences therefore amounts to 7 years with non-parole periods totalling 5 years. The earliest date on which you will be eligible for release on parole will be 9 December 2007. ********** Last Modified: 02/06/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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