R v Phillip William Smith [2011] NSWDC 38

District Court New South Wales

Medium Neutral Citation: R v Phillip William Smith [2011] NSWDC 38 Hearing dates: 11 April 2011 Decision date: 14 April 2011 Before: Judge Walmsley SC Decision: Sentenced to a term of imprisonment of 15 months, to be suspended for the term of the sentence upon the offender's entering into a good behaviour bond under s 12 Crimes (Sentencing Procedure) Act 1999 Catchwords: CRIMINAL LAW - sentence - attempt to pervert the course of justice - police officer providing breath sample for corrective services officer with mid range breathalyser reading - lengthy and unexplained delay in prosecuting offender - sentence of fifteen months, suspended by reason of delay. Legislation Cited: Crimes Act 1900 ss 319 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Marinellis v The Queen [2006] NSWCCA 307 Taylor v The Queen [2007] NSWCCA 99 R v Blanco (1999) 106 A Crim R 303 R v Christie (Unreported, District Court of New South Wales, Conlon J, 6 August 2010) R v Nguyen (2004) 149 A Crim R 343 R v Nomchong (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Hunt CJ, McInerney, Sully JJ, 10 April 1997) R v Way (2004) 60 NSWLR 168 Category: Sentence Parties: Regina Phillip William Smith Representation: Mr D Carroll (Defence) Mr R Stainer (Crown) Mr B Moylan (Defence) File Number(s): 2010/114429

Judgment 1The offender was born on 1 November 1964 and he is now aged forty-six. On 11 April 2011 he appeared before me and adhered to a plea in the Local Court, to one count of attempt to pervert the course of justice contrary to s 319 of the Crimes Act . The maximum penalty for that offence is fourteen years imprisonment. 2The Crown tendered a set of agreed facts. The document is very lengthy and covers offences committed by a number of police officers and officers employed by the Department of Corrective Services. The facts as they concern this offender, as I have deduced and summarised from that document and from elsewhere in the evidence, are as follows. 3The offender grew up in Tamworth and left school after year ten. He qualified as a bricklayer and a carpenter. He joined the Police Service in 1987 when he was aged twenty-three. In September 2007 he was stationed at the Moree Police Station as a general duties officer. He had achieved the substantive rank of Senior Constable, but was acting as Sergeant. He had been at the Moree station since 1998. On the evening of 24 September 2007, two junior officers from the Moree Police Station were conducting roadside breath testing in Moree. They were Constable Dunn and Constable Boaden. Constable Boaden saw a car apparently trying to evade the roadside testing and so he followed it and stopped it. It turned out that the car was being driven by an employee of the Department of Corrective Services, one David John Webb. An Alcometer test recorded .095. Mr Webb was arrested and taken to the Moree Police Station for testing on the breath analysis instrument called BAS. At the Moree Police Station Corrective Services Officers apparently worked beside the police. When Mr Webb was taken into the police station he spoke to a fellow Corrective Services officer. He asked him to telephone W. W was apparently then the assistant superintendent of Corrective Services in Moree. I infer that that telephone call to him was to assist in getting his help in the predicament in which Mr Webb found himself. 4Constable Boaden then spoke to the offender who was the duty supervisor on duty at Moree Police Station that night. He told him that he had arrested a Corrective Services officer. Mr Smith then received a telephone call while he was in the course of having that conversation. Shortly after, he told Mr Boaden, "That was W asking is there any way that we can let him off. He even suggested that one of us blows in the bag." The conversation was in the presence of four other officers. Mr Smith received a further telephone call and said to the caller, "I'll take care of it." Mr Smith said to Mr Boaden, "There's other ways to go about it, what do you want me to do?" Mr Boaden said, "What do you mean, what do I want to do? He's back here, I've logged a positive test, we've got to go through with it." Mr Smith said, "Well, perhaps we could let him see if we can time him out. We've got two hours to do the test." This, I take it, was in the hope that the reading would be below .05 after a certain time had elapsed. Mr Smith later tested Mr Webb on the BAS and said to Mr Boaden, "Fuck, he went up." It seems that he then showed Mr Boaden an Alcolizer reading which showed .135. 5Mr Smith then said, "It doesn't matter if we let him wait, he's still not going to go below that in the two hour limit." Mr Smith then received another telephone call and said Mr Boaden, "We've got the green light. That was B with the green light to go ahead." Mr Boaden said, "Green light?" And Mr Smith said, "Yeah, we'll let him go. You take him home and we'll take care of the BAS." The reference to B was a reference to B, who was the duty police inspector at Moree at the time. Mr Boaden then took Mr Webb to his car, followed him home and then returned to the station. Then Mr Smith said, "We've got to take care of this now." The BAS was turned on and Mr Boaden entered details, (I assume of Mr Webb). Mr Boaden then said to Mr Smith, "I can't do this." Mr Smith said, "It will be right, bloke, it will be right." Mr Boaden said, "But, Phil, I can't blow in it. I'm not doing it." Mr Smith said, "Look, I'll blow in it. I'll blow in it". He did that, and the reading was .00. A receipt was then issued showing that Mr Webb had a nil reading on the BAS. Mr Boaden also entered a false home address when entering details of Mr Webb in the COPS entry. 6Mr Boaden later told police that he had felt pressured and had put the false entry into the machine by reason of that pressure, including from the telephone calls Mr Smith had received, in particular the one from B. 7Apparently word got to the Police Integrity Commission that Mr Smith had blown into the breathalyser that night. Other police then investigated the matter. Mr Boaden made an early and full admission as to his part in the matter. However, Mr Smith's attitude was entirely different. On 7 January 2008 he approached Mr Boaden and told him that the BAS book was missing with the relevant information in it. He said, "If this gets out, Jimmy, we're fucked. Just keep quiet and say nothing and they can't get you for saying nothing." 8On 15 January 2008 Mr Smith approached Constable Harpley who had been present on the relevant night and he was asked to tell him what he knew about the investigation. Then on 16 January Mr Smith was interviewed by investigating officers. He said it had been Mr Boaden who had done the BAS test and it had been Mr Webb who had supplied the relevant breath sample. He claimed that somebody had simply walked in off the street that night asking to be tested and that was the person that he had put on the BAS instrument. He agreed that W had phoned that night but denied that he had asked him to let Mr Webb off or to get someone else to blow into the machine. He agreed that B had rung him too but he denied that he had tried to interfere in the matter. Mr Smith denied to the investigators, that he himself had blown into the machine. 9On 17 January Mr Smith spoke to Constable Harpley again and asked him again what he knew of the night in question. Then he approached him again with more questions. These questions he wrote out, indicating to Constable Harpley by gestures that he thought there might be listening devices present. Mr Harpley declined to discuss the matter. At about this time Mr Smith enquired of another officer, Constable Dunn, if he had been interviewed. There was another Dunn at the station, Sergeant Dunn. At about the same time he was approached by Mr Smith and asked who had caused the investigation. 10Although Mr Smith made what I am satisfied were attempts to put the investigators off course, in particular by lying to them about having blown into the machine, he did eventually tell the truth. On 28 April by an induced interview he made certain admissions. As to the telephone calls from W and B, he told investigators that W had in fact asked him if he or someone else would blow into the machine. He also told investigators that B had counselled him to be careful. 11Two weeks later, in May 2008, Mr Smith gave truthful evidence before the Police Integrity Commission. As it happens, that was almost three years ago. It has taken all of that time since those admissions were made for the case to come before me. Although originally charged with a more serious offence, Constable Boaden was charged summarily with one count of making a false entry in a public register. When that matter is dealt with summarily it has a maximum penalty of two years imprisonment. He pleaded guilty. I was told that he had given considerable assistance to investigators. He was placed on a two year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act , fined $1,000 and ordered to pay $79 court costs. Neither the Crown nor Mr Carroll, who was counsel for the offender, put to me that there was a parity issue concerning Mr Boaden. The magistrate's sentencing remarks were not made available to me, nor were Mr Boaden's antecedents. 12I should say that the evidence suggests that W and B denied any involvement in this matter and I was made to understand that neither of them was ever charged with any offence. So far as I am aware they are still working in their respective positions. 13Mr Carroll put to me that this case was very low on the scale of objective criminality. He put to me that the reading on the BAS put Mr Webb into the mid range of alcohol readings. He put to me that his client had made no demand on Constable Boaden to do anything and had not in fact threatened him, and that Mr Smith had been brought into the matter by the telephone call from W, followed up by the one from B. He put to me that B was senior to him in the police service and W was in a very senior position in the Department of Corrective Services. He put to me that he had no self-interest in the matter, that he was not to get anything out of it for himself. And as he had been approached by the two senior men in the area, I would find that there was a form of duress which was short of what would qualify as a defence. 14Mr Carroll relied on another sentence by another District Court judge, in a case of R v Christie (Unreported, District Court of New South Wales, Conlon J, 6 August 2010). In that case, where a police officer had done a very similar thing, that is provided a breath sample to assist a friend, the outcome was a s 9 bond. There, junior police officers recognised that the man they were testing in a random breath test was the son of a senior constable at their station. The offender was the custody officer and the authorised breath analysis operator, and it was he who blew into the machine. The roadside test on that occasion put the young man, the senior constable's son, into the high range. The reading was .202. The offender there made a false written report of the incident and concealed his identity when giving a breath sample so that he could not be photographed. The judge who sentenced him found that this was a spur of the moment decision and the whole incident had occurred over a short space of time and his Honour found that it was toward the lower end of the range of objective seriousness. 15Before me the offender when he gave evidence said that he did what he had done in order to help everyone. He had wanted to keep harmony between the police and the Corrective Services officers. He said that the relationship between the police and Corrective Services officers is very close and that he understood that Mr Webb had had only a few beers that night and so he thought if he waited a while he might be under the limit. He said that there had been some bad blood between B and Mr Boaden and he told Mr Boaden that he would get some brownie points with B if he let Mr Webb go. He said he had had some psychological sequelae from various significant and extremely distressing incidents which had occurred in his time as a police officer and that he was not coping. He later received some assistance from a psychologist for what was diagnosed as post-traumatic shock disorder. 16In evidence in chief Mr Smith made statements of regret. In cross-examination the sincerity of these statements was challenged. In part, it was put that he had tried to cover things up. His response was, "After it happened I forgot all about it." Given my observations of Mr Smith and my reading of the psychological reports in evidence and the approaches he made to fellow officers when he knew an investigation was underway, I reject his evidence that he had forgotten all about it. I am satisfied that he was untruthful to me about that and I have no confidence that he was truthful about other matters either. I find he willingly agreed to help an employee of the Department of Corrective Services, that he had a long relationship with W, he wanted to help someone in a parallel service and his motive had been to maintain comity between the two services. I infer that he and W were friendly. It was not, I am satisfied, a spontaneous matter. He had time to consider it. There were phone calls, followed by a wait and then the test of Mr Webb with the high reading, and the decision which had been suggested some time by W that he provide a sample. I find that Mr Smith tried to get Mr Boaden to do it first. As a substantive senior constable, an acting sergeant, and with Mr Boaden being a constable, Mr Smith's position of seniority I think does increase the seriousness of this offence, which is not, I think, at the low end of the scale. 17It is I think a very significant offence objectively. It is not mid range but it is close to it. This is, of course, not a standard non-parole period matter, so the concept of objective criminality is not as relevant, but as the Court of Criminal Appeal said in R v Way (2004) 60 NSWLR 168 , judges in non standard non-parole period cases are well accustomed to considering and stating that a particular case falls into the worst category or the category of offences at a lower level of objective seriousness. It should be observed, I think, that offences of perverting the course of justice are singled out by judges as offences of the most serious kind: Taylor v The Queen [2007] NSWCCA 99 [23] (Hall J). These offences strike at the heart of the justice system and must be severely punished whenever detected: Marinellis v The Queen [2006] NSWCCA 307 [10] (McColl JA). In R v Nomchong (Unreported Supreme Court of New South Wales, Court of Criminal Appeal, Hunt CJ, McInerney, Sully JJ 10 April 1997), a senior police officer had tried to corrupt a junior officer under his supervision. The Court of Criminal Appeal endorsed the trial judge's view that the inevitable consequence of conviction of a police officer for this offence in most cases is to be full-time custody. 18Both the Crown and Mr Carroll made submissions based on R v Nguyen (2004) 149 A Crim R 343 where the sentencing judge had imposed a term of imprisonment and had suspended it. The Court of Criminal Appeal reduced the sentence to allow for the period he had been at risk under the suspended sentence, and allowed the Crown appeal and ordered that the sentence be served by way of periodic detention. In Nguyen at [43] the Court of Criminal Appeal said: "One of the purposes of sentencing is the denunciation of the conduct in which an offender has engaged. This purpose is now expressly stated in s 3A(f) of the Crimes (Sentencing Procedure) Act . In my opinion, the fact that a person, like a police officer, who is directly involved in the administration of justice acts in a way that perverts the course of justice, means that the object of denunciation is entitled to greater weight in the sentencing exercise than it is in the case of other offenders." 19And at para 59 the Court noted that although there was there a strong subjective case, the objective gravity of the offence, particularly as it had been committed by a serving police officer, required actual custody. 20On its face, in my view, this case should lead to full-time imprisonment to denounce the conduct and to deter other police and others in authority who are in a position to attempt to pervert the course of justice. The public would then be reassured that they, who do not have the same cosy relationship that existed here between police and the Department of Corrective Services, would not be treated differently and that in the future Department of Corrective Services officers (and police) will be treated as ordinary members of the public. 21The Crown put to me here that there were s 21A(2) aggravating factors: the offence occurred when he was in company, involved more than one criminal act and when he was in a position of trust. But it is obvious to me from reading s 21A(2) that the position of trust issue relates mainly to sexual offences. The allegation here was that there was an attempt of perversion, which is the provision of the breath sample, so I do not think that it is a case where there was more one criminal act. It was a case where the offence occurred when he was in company, but it is not in the same category of cases such as cases of violence where being in company clearly adds to the seriousness of the matter. So I think that the fact that it was in company is less relevant here. 22At the time of these events Mr Smith was separated from his former wife and child. His employment with the police was suspended in 2008 because of this offence, and I was told that it has now been terminated. Some three to four years ago he formed a relationship with a woman with whom he had worked at the Moree Police Station. She now works in Dubbo. The relationship seems good but it obviously has been on hold to some extent while he waits to know his fate. He told me that he is on a part pension, he lives with his brother, and he is studying to be an air-conditioning engineer. He has been seeing a psychologist and he told me that he had been honest with her in giving her history. He told me, as I earlier noted, about some horrific matters which he had to deal with in the police force and he gave me a sad example of having to assist in the aftermath of a catastrophic accident. He told me that he had been living with the fear of being charged ever since the time he gave evidence to the Police Integrity Commission. 23For reasons which the Crown frankly conceded he could not explain, the offender was not charged until two years after he gave that evidence to the PIC. It is an extraordinary state of affairs where there was a PIC inquiry in early 2008 and evidence of this offence, including his confession provided in May 2008, for such a significant example of an attempt to pervert the course of justice to go so long without being dealt with. Why investigators, the PIC and the DPP, allowed this matter to rest for two years before Mr Smith was served with a court attendance notice, is unexplained. That, I think, can hardly reassure the public that corruption is dealt with seriously in this State. In my view, the offender is entitled to some understanding and some leniency because of that delay; he had the matter hanging over him for two years before he received the court attendance notice. The delay has, I think, permitted the offender to start his rehabilitation and to become retrained in a new field. Hardly surprisingly, there is no evidence that he has committed any further offences since then. In R v Blanco ( 1999) 106 A Crim R 303 at [17] the Court of Criminal Appeal said: "[I]t is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account on sentencing." 24I do propose to take into account here the fact that there was such a long and unexplained delay. I do not take it into account on penalty but on the way in which the penalty is to be served. 25The offender's partner, Ms Smith, spoke very well of him. She spoke of the fact that when he was in the police service he was a man who was always willing to step in and perform duties when others were not available and he would take time in lieu of money when there were budgetary restraints. She said that his life since these events has been what she described as a living hell. She said: "He is a shattered man." She said, "We have put our lives on hold to see what happens." 26I have had regard for the decision in Christie and although it has significant similarities one must look at all the circumstances of an offence both objectively and personally. I take heed of the evidence of the post traumatic shock disorder but I note that on 20 August 08 his symptoms were reduced and by 12 October 09 the psychologist, Ms Akers, said "These symptoms have now subsided" though she noted that the offender was at that time still suffering from insomnia and anxiety. There were very impressive character references in evidence. The post traumatic shock disorder to some extent I accept explains why he did what he did. That is, it was relevant I think to preferring to avoid having arguments. I accept his counsel's submission that for an ex police officer to be imprisoned full time would be much worse than for other prisoners. I find it highly unlikely that the offender will re-offend. I note that he pleaded guilty early. He is entitled to a discount of twenty-five per cent from any penalty that he would otherwise have received. I take into account that he has lost his career. His lack of frankness to me means that I am not persuaded as to his contrition. In a normal case that would reflect on his rehabilitation but I am not satisfied that it would have that effect here where I think he is well on his way to rehabilitation. The Crown did not say that I would be in error to treat the offender as the offender was dealt with in Christie . In particular, he did not say that I would be in error if I did not order full time custody. Having considered all the options and, in particular, the objective criminality and the subjective matters, I think the only appropriate punishment is one of a term of imprisonment and I propose imposing a term of imprisonment of fifteen months bearing in mind the plea of guilty and the other factors. 27I turn now to a consideration of whether I ought to suspend its operation. Because of the two year delay by the DPP and PIC and investigating police or one or more of them, and the suffering that he has had waiting in that time, I consider that I should suspend the term of imprisonment. That, I think, will operate as a sufficient deterrent to the offender and to the public when it is appreciated that I was moved to suspend the service of the period of imprisonment by reason of that delay in prosecuting him. 28The orders that I make are these: Mr Smith, you are convicted and I sentence you to fifteen months imprisonment. Under s 12 of the Crimes (Sentencing Procedure) Act 1999 I order that execution of the sentence be suspended for the term of the sentence. I direct that you be released from custody on condition that you enter into a good behaviour bond for the term of the sentence. 29Conditions applying during the term of the bond are these: You are to appear before the Court if called on to do so at any time. You are to be of good behaviour. You are to advise the registrar or clerk of the Criminal Listing Directorate of the District Court at Moree of any change of residential address. You are to accept the supervision and guidance of the New South Wales Probation and Parole Service at Tamworth throughout the period of the bond and obey all directions of the officers of that Service. And to enable such supervision and guidance to commence you are to report to the Office of the New South Wales at Tamworth within seven days from today, that is, by 20 April 2011.