R v Jasper [2003] NSWSC 287

New South Wales Supreme Court

CITATION : R v Jasper [2003] NSWSC 287 HEARING DATE(S) : 27 & 28 February 2003 JUDGMENT DATE : 11 April 2003

JURISDICTION: Common Law Criminal JUDGMENT OF : Dunford J DECISION : Prisoner sentenced.

CATCHWORDS : SENTENCING - police corruption - bribery - pervert course of justice, etc Crimes Act 1900, ss 112, 148, 188, 249B, 319, 346 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, ss 21A, 32 Police Service Act 1990, s 200 CASES CITED : R v Patison [2002] NSWSC 1248 PARTIES : Matthew John Jasper (Prisoner) FILE NUMBER(S) : SC 70088/02 COUNSEL : PE Barrett (Crown) J Dailly SC (Prisoner) SOLICITORS : SE O'Connor (Crown) Walter Madden Jenkins (Prisoner)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL

DUNFORD J

Friday, 11 APRIL 2003

70088/02 R v Matthew John JASPER

SENTENCE 1 His Honour: The prisoner Matthew John Jasper appears for sentence following pleas of guilty on two indictments. 2 On the indictment dated 13 December 2002, the prisoner pleaded guilty to all nine counts when arraigned before Barr J on 13 December 2002 and he was remanded for sentence before me. On the indictment dated 31 October 2002 containing six counts I heard submissions on 27 February 2003 and, having ruled that the facts relied on by the Crown did not constitute the offences charged in counts 3 and 4 of that indictment, the prisoner was then arraigned and pleaded guilty to counts 1, 2, 5 and 6 (the last two incorrectly referred to in the transcript (p 14) as charges (3) and (4)). In addition, I have been asked to take into account a number of additional offences pursuant to the Crimes (Sentencing Procedure) Act 1999, s 32. 3 Taking into account both indictments the prisoner has pleaded guilty to: · five counts of act with intent to pervert the course of justice (Crimes Act 1900, s 319, maximum penalty 14 years) · four counts of solicit or receive corrupt reward (Crimes Act 1900, s 249B, maximum penalty 7 years) · one count of accessory before the fact to break enter and steal (Crimes Act 1900, ss 112, 346, maximum penalty 14 years) · three counts of receive bribe (Police Service Act 1990, s 200, maximum penalty 7 years). 4 The seven Forms 1 which I was asked to take into account contained: · one count of steal from dwelling (Crimes Act 1900, s 148, maximum penalty 7 years) · eight counts of give or solicit bribe (Police Service Act 1990, s 200, maximum penalty 7 years) · three counts of receive or give corrupt reward (Crimes Act 1900, s 249B, maximum penalty 7 years) · one count of receiving (Crimes Act 1900, s 188, maximum penalty 10 years). 5 The facts relating to all matters are set out in the Statement of Agreed Facts (Ex. B) as to the indictment of 13 December 2002 and the document headed Chronology and Facts (Ex. C) as to the indictment of 31 October 2002. I do not intend to repeat them in detail but in summary, they show a lengthy course of systemic police corruption engaged in by the prisoner and other detectives of the Manly/Davidson Local Area Command. 6 His activities included failing to record or disclose the full amount of illegal drugs or money recovered during the execution of search warrants, and sharing the moneys not disclosed with other police officers. The non-disclosure of the full amount of the drugs discovered resulted in the occupiers being charged with possession of lesser amounts (non commercial quantities) or with possession instead of deemed supply, being allowed bail and receiving lesser penalties accordingly. 7 His activities also included seeking and receiving bribes, subsequently shared with other police officers, for not disclosing the indicia of cultivation similarly located. He also told one of the offenders that he could continue dealing in drugs but that it would cost him and there were three police officers he would have to pay. 8 The ninth count in the indictment of 13 December 2002 was quite different and did not involve corruption with other police, but related to supplying information to an active burglar as to suitable premises for a burglary and receipt of part of the proceeds thereof. 9 The indictment of 31 October 2002 was in relation to the prisoner's involvement with a heroin dealer, Vincent Caccamo, and involved the receipt of money in return for standing back whilst Caccamo continued his illegal drug trafficking with knowledge that the moneys being paid were the proceeds of his heroin dealings. 10 One of the other detectives at Manly/Davidson Local Command with whom the prisoner was engaged in these illegal activities was David Phillip Patison whom I sentenced for his part in these activities on 20 December 2002. A number of the offences to which Patison pleaded guilty were identical to those to which the prisoner has pleaded, and like the prisoner, he asked that a large number of similar related offences be taken into account on Forms 1. 11 Overall Patison 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. The other matters taken into account were seven counts of solicit or receive bribe, two counts of solicit corrupt reward and also steal from dwelling, larceny, hinder investigations of serious offence, receive corrupt reward and receive bribe. He received sentences totalling seven years with non-parole periods totalling five years. 12 Where the offences of the prisoner are the same as those for which Patison was sentenced, principles of parity make it incumbent on me when sentencing the prisoner to have regard to the sentences imposed on Patison; and this is so notwithstanding that the Director of Public Prosecutions has lodged an appeal against the sentences given to Patison on the ground of their alleged manifest inadequacy. 13 In respect of both indictments the prisoner has pleaded guilty at the first available opportunity. In relation to that of 31 October 2002 he did not do so until after his challenge to counts 3 and 4 had been dealt with, but he was entitled to raise that challenge, which was in fact successful, and so it was not reasonable to plead before that issue had been resolved. 14 He has also rendered assistance to the authorities as set out in Exhibit D which involved not only giving information but, as detailed in the exhibit, involved additional assistance and an undertaking to give evidence if requested. 15 As I said in sentencing Patison: [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." 16 The prisoner was born on 14 September 1970, so is now 32 years old. His parents separated when he was 13 and subsequently divorced, but it appears that he has remained in touch with both of them, and he lived at home with his mother and younger sister until he joined the Police Service about six months after completing school with his Higher School Certificate in 1988. 17 After completing his training he was first posted to general duties at Mosman before being seconded to the Transit Police at Hornsby in 1992-3, after which he returned to Mosman. In 1997 he began A List Detective Training work, as part of which he was transferred to the Warringah District Special Operations Group, and then at the beginning of 1999 he commenced full-time plain clothes work at Manly where he remained until he was suspended in December 2000. 18 I am satisfied that he was a dedicated, altruistic, enthusiastic officer, untainted by any form of corruption until he went to Manly and came into contact with other corrupt officers, including David Phillip Patison and Ray Peattie, a detective sergeant, and he described in evidence the circumstances in which he first heard a suggestion from Patison that he take some money located during execution of a search warrant (a matter in respect of which he has not been charged). He said when he got home that evening he felt guilty and kept the money for some time, but then he spent it. 19 It seems that after that he succumbed to what might be called "peer pressure". He said he liked to be liked by others, although he knew that a lot of his fellow officers were not involved in corruption; and although he acknowledged his conduct as being "dreadfully wrong" he said that at the time he justified it on the ground that they were only taking money from criminals, but he now sees that as a completely wrong attitude. 20 He does not seek to blame others and says he did what he did with his eyes open. He spent the money on an expensive life style. 21 By the exposure of his corrupt conduct, and his dismissal from the Police Service, he has brought shame on himself, his family and all the honest members of the Police Service, he has lost his reputation, standing in society and virtually all of his friends. 22 Financially he lost his employer's superannuation contributions and his own contributions have been used to pay back his ill gotten gains to the Crime Commission. 23 At one stage he fled to Spain to avoid going to gaol, but after a few days he decided to return and face the consequences, thus further evidencing genuine contrition. 24 I am satisfied that his remorse and contrition is genuine and that whilst he will never again have the opportunity to offend as a police officer, he is unlikely to offend in any other way in the future. 25 In respect of his pleas of guilty, contrition and assistance to the authorities I consider a discount of around 30% to be appropriate and I also take into account that as a former police officer and an informant he will need to serve his sentence in strict protection. I have also had regard to all the matters referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999. 26 Generally speaking, where the prisoner and Patison have pleaded guilty to the same offences I shall fix a similar sentence but shall make a small adjustment to some of them to allow for the consideration that Patison, who was more senior, introduced the prisoner to the corrupt conduct, and although the prisoner does not seek to blame anyone else, he probably would not otherwise have become involved. 27 On the other hand, he seems to have been a willing pupil and he has pleaded guilty to more offences (13) than did Patison (9) and they each had 13 further matters taken into account. I have sought to balance these considerations along with the fact that the prisoner's level of assistance to the authorities is higher than that of Patison. 28 These considerations apply particularly in relation to the Caccamo offences which appear to be the first in point of time and where Patison, who did not challenge the form of the indictment, pleaded guilty to a charge of supply prohibited drug, an offence carrying a greater maximum than the related offences to which the prisoner pleaded guilty; but on the other hand the criminal conduct involved was the same in that in both cases their inaction in return for the corrupt payments had the effect of Caccamo continuing to supply heroin. 29 Moreover, whilst the present prisoner pleaded guilty to four counts in relation to Caccamo, Patison pleaded guilty to three counts (7, 8 and 9) and had one matter (receive corrupt reward of $5,000 on 20 January 2000) taken into account on a Form 1. In respect of those counts Patison received an effective sentence of 5 years with a non-parole period of 3 years. For the reasons given I consider the prisoner should receive slightly less, namely an effective sentence of 4 years with a non-parole period of 2 years. 30 In relation to the indictment dated 13 December 2002, counts 1 and 2 (act with intent to pervert the course of justice) which each have additional matters to be taken into account on Forms 1 have no corresponding charges in relation to Patison, but involve similar conduct to that in other charges against him, thus calling for similar penalties. Although the offences in the different counts were quite separate they were closely related in point of time and I will accordingly make those sentences concurrent with each other. Count 1 - 3 years fixed term Count 2 - 4 years with a non–parole period of 3 years 31 In respect of count 3 involving Luke Benbow and the associated matters on the relevant Form 1, these offences were committed in conjunction with Patison (count 1) who received a fixed term of 3 years but his was concurrent with other sentences relating to other offences involving Luke Benbow (counts 5 and 6) including knowingly take part in supply of a prohibited drug, effectively totalling 5 years with a non-parole period of 3 years. In respect of count 3 in this indictment I impose the same penalty as imposed on Patison for his count 1, namely 3 years fixed term. 32 Count 4 concerned Geoff Herkey with matters on the Forms 1 are equivalent to corresponding charges in respect of Patison (count 3), although included in the Form 1 for Patison were two additional matters arising from an integrity test (steal from dwelling and bribe member of Police Service). In respect of this matter Patison received a sentence of 3 years fixed term concurrent with a sentence of 4 years with a non-parole period of 3 years for another count of acting to pervert the course of justice in relation to Anthony Silvestro. There is no equivalent charge in relation to Anthony Silvestro against this prisoner although there is a charge of receive a corrupt reward relating to him on the Form 1 which relates to count 6 (act to pervert the course of justice in relation to Kelly Burris), whilst count 7 is a further charge in relation to Kelly Burris of soliciting a bribe. It may not be completely scientific but I consider substantial parity will be achieved by imposing a significant sentence for count 6 and concurrent sentences on counts 4 and 7. 33 That leaves counts 5 (solicit bribe with provide corrupt reward on Form 1), 8 (solicit bribe) and 9, of which only count 5 had an equivalent count against Patison (count 10) and for which the latter received a concurrent sentence of 3 years fixed term. I consider similar sentences are appropriate for each of counts 5 and 8. 34 There remains count 9 which is quite separate from the others. It involved the prisoner in the course of a corrupt relationship providing information to an active criminal to facilitate a burglary at premises 38 Fidden's Wharf Road, Killara on 23 November 2000, premises with which the prisoner had previously had an association on a social basis, thus betraying not only his duties as a police officer but also his social association with those involved. The burglary resulted in the theft of jewellery and foreign currency, and the prisoner received $500 out of the proceeds. The offences call for a substantial penalty which is not wholly concurrent with other sentences. 35 The commencement of the first sentences will be backdated to 27 February 2003, the day the prisoner first went into custody. The overall sentences will effectively be the same as Patison received which is appropriate on parity principles because although the prisoner pleaded guilty to a greater number of offences, Patison was the senior officer and introduced him to the corruption whilst the prisoner's assistance to the authorities was at a higher level. 36 In cases where I impose fixed terms or where the non-parole period is less then three-quarters of the term of the sentence it is on account of the accumulation and concurrency of sentences.