Regina v O'Mally [2005] NSWCCA 166

New South Wales Court of Criminal Appeal

CITATION: Regina v O'Mally [2005] NSWCCA 166

HEARING DATE(S): 28 April 2005

JUDGMENT DATE: 28 April 2005

JUDGMENT OF: Stein AJ at 29; Grove J at 2; Howie J at 30

DECISION: APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - POLICE OFFICER SOLICITING BRIBE - SIMILAR OFFENCE ON FORM 1 - PLEA OF GUILTY - SENTENCE - NO ERROR BY JUDGE IN DECLINING TO ORDER SUSPENSION OF SENTENCE - NO SENTENCING ERROR OTHERWISE

Police Act 1990 LEGISLATION CITED: Crimes Act 1900

Attorney General's Application No 1 of 2002 2002 56 NSWLR 146 R v Nomchong, unreported NSWCCA 10 April 1997 CASES CITED: R v Pangallo 1991 56 A Crim R 441 R v Thomson & Houlton 2000 49 NSWLR 383

PARTIES: Regina v Scott Noel O'Mally

FILE NUMBER(S): CCA 2005/295

J. Girdham (Crown) COUNSEL: J. Glissan QC and W. Wilcher (Applicant)

S. Kavanagh (DPP) SOLICITORS: Terry Alexander Steer (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0748

LOWER COURT JUDICIAL OFFICER: Kinchington ADCJ

IN THE COURT OF CRIMINAL APPEAL 2005/295

STEIN AJA GROVE J HOWIE J

28 April 2005 REGINA v SCOTT NOEL O'MALLY Judgment

1 STEIN AJA: The court is in a position to proceed to judgment in this matter now. I will ask Grove J to deliver the first judgment of the court. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Kinchington ADCJ in the Sydney District Court on 17 September 2004. The applicant, at relevant times a senior constable of police, pleaded guilty to soliciting a bribe contrary to s 200(1) of the Police Act 1990 for which the prescribed maximum penalty is seven years' imprisonment and/or a fine. In passing sentence his Honour was asked to take into account, pursuant to the Form 1 procedure, one further similar offence. The applicant was sentenced to imprisonment for two years commencing on 17 September 2004 with a non-parole period of sixteen months commencing on that date and expiring on 16 January 2006. Given the length of sentence, release to parole on that date ought to have been ordered by the court, but this is an omission which does not require resort to appeal in order to be corrected. 3 The facts in relation to the offence charged were that at about 8.15am on 14 January 2004 the applicant was performing highway patrol duties on the F3 freeway near Ourimbah. He stopped a vehicle being driven by a seventeen year old provisionally licensed driver named Daniel Phillips. There was another occupant of the car. The applicant asserted to Mr Phillips that he was travelling at 145 kph although later in the conversation he mentioned 140 kph. Mr Phillips responded that he may have exceeded 90 kph which was applicable to him as a provisional driver but disputed the applicant's assertions. 4 The applicant commenced to fill in an infringement notice but did not complete it. Conversation revealed that Mr Phillips worked in a part time job concerning Quad motorbikes. The applicant indicated that he would like a couple of these and did not care whether they were "legitimate" or not. He said that the infringement notice could not be withdrawn (no doubt there is a system for auditing the use of such documents) but offered to make it out for a minor offence such as having a bald tyre which would not affect Mr Phillips' licence status. 5 A mobile telephone number was supplied and thereafter a number of conversations took place between the applicant and Mr Phillips. The applicant wrote out his recollection of the conversation in a diary and the solicitation by the applicant is obvious from the terms of this record. Among other things he said to Mr Phillips, "If you scratch my back, I'll scratch yours" and "Call (it) what you want. It's bribery and corruption, but we are doing each other a favour and I am very old fashioned". 6 Thereafter the matter was reported to the relevant police professional conduct authorities and warrants obtained permitting interception of telephone calls and the use of listening devices. Among other things, the applicant in a conversation offered to pay the fine for the "bald tyre" infringement himself. 7 In due course an arrangement was made for delivery of a Quad bike by Mr Phillips to the applicant and this took place on 8 February 2004. The applicant assisted moving a Quad bike onto his trailer and thereafter he was arrested and charged. On legal advice he exercised his right to decline an interview. 8 The facts relating to the offence taken into account pursuant to the Form 1 procedure were that in about November/December 2003 the applicant, again performing highway patrol duties, stopped a truck being driven by a man named Divola. Divola was a disqualified driver and he gave a false name and details relating to a friend of his, Shane Johnston. Shane Johnston's father operates an earthmoving company on the Central Coast known as Julcat Earthmoving. 9 It is not necessary for present purposes to detail all the steps which led up to the ultimate acquisition by the applicant of earthmoving work, namely excavating a swimming pool, by Julcat. The agreed facts were that work to the value of $1,171.50 was carried out. The applicant did not pay for this work. On the occasion of its being carried out Shane Johnston was in attendance and introduced himself. He was, as stated, a friend of Divola and he had persuaded his father to do this work in order to avoid the possibility that his trucks would be "targeted" by police, or, at least by the applicant. Julcat Earthmoving and Mr Divola operated trucks of similar appearance. It might be noted that on 11 March 2004, after the arrest of the applicant, he contacted the office of Julcat and subsequently spoke to Shane Johnston whom he told that there had been "some dramas at work" and enquired of him whether he had had any "strange" phone calls. Mr Johnston replied in the negative and the applicant asked if they could meet, but Mr Johnston declined. 10 The applicant had no prior convictions. He had been divorced but was remarried and presented as a devoted family man. Evidence was also called from a number of police officers regarding his general good repute with them. He had been in receipt of commendations for police work. I see no reason to conclude that his Honour underestimated the applicant's former commendable behaviour. It is, I should observe, easy to contemplate that amongst colleagues in the Police Force the applicant would not reveal his darker side in which activity he in effect practised extortion upon his victims. 11 The applicant relies upon a number of specified grounds of appeal, the first of which asserts that the sentence imposed was manifestly excessive. Such is, of course, an ultimate submission and it is convenient to deal with some express submissions first. 12 Ground 2 asserts that the sentencing judge failed to accept and act upon unchallenged evidentiary material. The applicant had tendered on his behalf a letter from a general practitioner, Dr McGrath, and a psychologist, Mr Grant. Neither was required to attend for cross-examination. His Honour made extensive reference to the report by Mr Grant and expressed his conclusion that: "There is evidence to support the fact that you presently have a number of psychological and physical problems to address at this time. I am not satisfied that those problems so impacted on you at the time you committed these two criminal offences as to fully explain or excuse them in any way because each of them was not a spontaneous act on your part but was a result of deliberate and conscious conduct over some weeks following the initial contact." 13 That was a finding open to his Honour. There were several other references in his remarks on sentence to the applicant's conditions. What his Honour was bound to do was to take the material into account and give it such weight as he found in the circumstances was appropriate. There is no indication that he did not do so. On the contrary, it is plain that he discharged his obligation in this regard. 14 The next ground asserts that his Honour inappropriately applied previous decisions in this court in the sentencing process. In the course of his remarks his Honour recited some general observations from the decisions in R v Nomchong (unreported, NSWCCA, 10 April 1997) and R v Pangallo (1991) 56 A Crim R 441. Counsel for the applicant has pointed to the circumstance that in each of those cases the offender faced charges laid pursuant to s 319 of the Crimes Act for which a prescribed maximum penalty of fourteen years' imprisonment without the option of a fine was applicable, whereas the charge against the applicant (and the offence taken into account on the Form 1) carried half that prescribed maximum. That observation is not intended to suggest that the offence taken into account on the Form 1 is to be taken into account as if it were a second charge, but is to be taken into account in accordance with the judgment of this court in In The Application of the Attorney General No 1 of 2002 (2002) 56 NSWLR 146. 15 It is plain from his Honour's remarks that he was not engaging in an impermissible comparison between those cases and the present. What he referred to were observations about this type of criminal conduct. The emphasis is added. In R v Nomchong McInerney J had said: "The police are in a position of authority and trust in the community and the public depends on them to uphold the rule of law. The crime of bribery by a police officer is one that strikes at the very heart of the justice system." 16 Those remarks are pertinent to the present offence and not just to an offence higher in the scale of criminality such as was the circumstance in that particular instance. Similarly, Lee J in R v Pangallo said: "The crime of bribery by a police officer therefore must be severely punished whenever detected. The police are in constant contact with members of the public and the opportunity for bribery is always great. Those circumstances themselves mean that the element of general deterrence is always a matter that must be kept very much in the forefront of the mind of a sentencing judge when a police officer is charged with an offence such as this. It is important to deter other officers who may be inclined to similar conduct." 17 Once again, these are remarks of general application to this type of offence and are not limited to an offence higher up the scale of criminality such as was the case in Pangallo. There is no basis for a conclusion that his Honour made the asserted error. 18 I see no relevant consequence emerging from the circumstance that, at the time the cases cited were decided, the extant sentencing options did not include suspension of sentence. 19 The next ground asserts that the sentencing judge failed to reveal his reasoning process. As is implicit in the written submissions on behalf of the Crown, little can be said in response to this submission other than to invite reading the whole of his Honour's remarks on sentence which reveal that he considered the facts which constituted the objective seriousness of the offence and he took into account subjective matters in favour of the applicant. He made express reference to matters which are set out in the litany or checklist now to be found in s 21A of the Crimes (Sentencing Procedure) Act 1999. It is not suggested that there is any identifiable error by his Honour in those regards. 20 Submissions are made concerning his Honour's conclusion that he should allow a "discount" on sentence of approximately thirty per cent. He first made reference to that figure in his remarks when he said: "I am also satisfied that your plea of guilty has a utilitarian value and in the circumstances of this case I propose to allow you a discount on sentence of approximately thirty per cent." 21 That discount is of course higher than the upper figure in the range suggested in R v Thomson and Houlton (2000) 49 NSWLR 383 but, of course, the range suggested in that case was not expressed to be determinative of either an upper or a lower limit. 22 The second reference in his remarks came when his Honour was turning to the assessment of the actual sentence. He nominated some seven considerations, the seventh of which he described as "The fact that you are entitled to a discount of sentence approximating thirty per cent". 23 His Honour did not follow the course of expressing a notional figure before applying the discount although this references on each occasion to approximation suggest that he may have commenced with a head sentence assessment of three years reduced to two years which, arithmetically, is a discount of thirty-three and a third per cent on that element of sentence but approximately thirty per cent. 24 The complaint is made that, if his Honour had assessed a relevant utilitarian discount of thirty per cent, then there ought to have been discount for such other factors as were favourable to the applicant. Irrespective of how his Honour approached the task, it was his clear duty not to impose a sentence which was less than appropriate to the whole of the circumstances. I do not perceive that his Honour failed in his duty in that regard. There is no basis for concluding that he did not take requisite matters into account in his overall assessment. 25 It is contended that by reason of the express submission made to the judge, that a suspended sentence should be imposed and the failure of the sentencing judge expressly to reject it, error is demonstrated. 26 His Honour's introductory remark to final imposition of sentence that "The only way I can ensure that you are adequately punished on this offence is to subject you to a term of imprisonment" clearly implies a rejection of the proposition that the term of imprisonment should be suspended as he forthwith embarked upon imposition of sentence. To incant his rejection of a submission which is necessarily rejected is an unnecessary exercise and, again, I am unpersuaded that error has been demonstrated. 27 The ultimate question which, as I have said, is encompassed by the first ground asserting that the sentence was manifestly excessive, is whether this court concludes that some lesser sentence ought to have been imposed. The sentence was, in my view, well within the range of the sound exercise of discretion in all the circumstances and I am unpersuaded that a lesser sentence ought to have been imposed. 28 I would grant leave to appeal against sentence but dismiss the appeal. 29 STEIN AJA: I agree with Grove J. 30 HOWIE J: I also agree. 31 STEIN AJA: Accordingly, the order of the court is that leave to appeal is granted and the appeal is dismissed. **********