Kennedy v The Queen

[2018] NSWCCA 43

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Kennedy v R [2018] NSWCCA 43
Hearing dates:	14 November 2017
Decision date:	28 March 2018
Before:	Meagher JA at [1] Rothman J at [2] Button J at [7]
Decision:	(1)   Leave to appeal granted. (2)   Appeal against sentence dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – offences of threatening injury to any person on account of something lawfully done by a person as a judicial officer – offence of conveying false information that a person or property is in danger – asserted error in assessing objective seriousness of offences – asserted failure to take into account appropriately applicant’s mental illness – asserted denial of procedural fairness – sentence asserted to be manifestly excessive – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), ss 93Q, 326 Crimes (Sentencing Procedure) Act 1999 (NSW), s21A
Cases Cited:	Cowan v R [2015] NSWCCA 118 Linney v R [2013] NSWCCA 251 R v Engert (1995) 84 A Crim R 67 R v Jaques [2002] NSWCCA 444 R v Linney [2012] NSWSC 1564 Turner v R [2016] NSWCCA 44 Veen (No.2) [1988] HCA 14; (1988) 164 CLR 465 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category:	Principal judgment
Parties:	Joshua Alexander Kennedy (Applicant) Regina
Representation:	Counsel I Nash (Applicant) S Dowling SC (Crown)   Solicitors: Legal Aid Commission of New South Wales (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2016/001841731
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 6 March 2017 Before: Frearson SC DCJ File Number(s): 2016/184173

JUDGMENT

1. MEAGHER JA: I agree with Button J.

2. ROTHMAN J: I agree with the orders proposed by Button J and generally with the reasons therefor.

3. During the course of submissions on appeal, it was suggested that the circumstance that the applicant did not communicate the threat directly to the judicial officer was an ameliorating factor. I do not accept that submission.

4. There are reasons for not accepting the submission. First, the applicant was, at least, reckless as to whether the judicial officer would be told.

5. Secondly, and more importantly, the communication of the threat to Corrective Services Officers, including information that there was an explosive device in the courthouse, necessarily involves the expectation that steps will be taken to sweep the courthouse by Police or bomb disposal experts. The proposition that an offender would notify authorities that a judicial officer would be killed, and the offender not expect that the judicial officer would be informed of the threat, beggars belief.

6. No evidence was adduced by the offender to overcome the necessary inference that he would expect the threat to be notified to the person threatened. Further, such a person would be aware of any search of the courthouse.

7. BUTTON J:

Introduction

8. Joshua Alexander Kennedy (the applicant) has sought leave to rely upon a number of grounds of appeal against sentence. They are as follows:

1. His Honour erred in his assessment of the objective seriousness of the s 326 Crimes Act offences by:

(a)    failing to take into account the fact that the threats were not communicated to the putative victim; and

(b)   finding that the offences were the culmination of [a] “long-hatched plan with considerable deliberation”;

2.   His Honour erred in the manner [in which] he took the applicant’s mental illness into account;

3.   The applicant was denied procedural fairness prior to the learned sentencing judge finding that his record “manifests persistent disobedience”;

4.    The sentence is manifestly excessive.

9. That leave is sought with regard to an aggregate head sentence of imprisonment for four years three months with an aggregate non-parole period of two years nine months that was imposed by his Honour Judge Frearson SC on 6 March 2017 in the District Court sitting at Goulburn.

10. The applicant had pleaded guilty to three offences, two of them contrary to s 326(1)(b) of the Crimes Act 1900 (NSW), and one of them contrary to s 93Q(1) of the same Act.

11. In short, the first two offences were threatening to do injury to any person on account of something lawfully done by a person as a judicial officer, and the third offence was conveying false information that a person or property is in danger.

12. The first and second offences carried a maximum penalty of imprisonment for ten years, and the third offence carried a maximum penalty of imprisonment for five years. Parliament has not set a standard non-parole period with regard to any of those offences.

Objective features

13. The following summary is derived from a statement of agreed facts that was placed before his Honour.

14. On 23 May 2016, the applicant appeared in the Local Court at a regional centre in New South Wales. He had pleaded guilty to, or been found guilty of, an offence of driving whilst disqualified. The learned magistrate sentenced him to a head sentence of imprisonment for seven months, with a non-parole period of four months. The applicant was taken into custody. He was transferred to Goulburn Correctional Centre, and lodged an appeal against sentence (I presume that bail pending that appeal had been applied for but refused).

15. Five days later, on 28 May 2016, the applicant was in the yard of the same gaol, and approached two prison officers. He provided them with a handwritten letter of two pages, and asked that it be faxed to the courthouse at which he had been sentenced. He emphasised to the officers the importance of the second page of the document.

16. Part of the document was verbatim as follows:

“YOU HAVE INCASERARTED ME AND FOR THAT YOU WILL PAY SO DEARLY WHEN I GET RELEASED I WILL COME BACK TO YOUR COURT ROOM AND BLOW YOUR FUCKEN HEAD OFF I STILL HAVE A SAWN OFF PUMP ACTION SO YOUR FUCKED AND IF THAT CANT HAPPEN I’LL BLOW THE FUCKEN COURT HOUSE UP I HAVE ENOUGH KNOWLEDGE ABOUT EXPLOSIVES, AND BY THE WAY GIVING ME A 25% DISCOUNT WHAT THE FUCK IS THIS WOOLWORTHS, COLES YOU DUMB CUNT. TIME IS TICKING AWAY CUNT.

YOUR EXECUTCER

0000245848”

17. Not only had the applicant provided the document to the prison officers personally, but he had also signed the document, and provided within it his correct inmate identification or “MIN” number.

18. Separately, the document spoke unremarkably of the desire of the applicant to withdraw his appeal against sentence.

19. As one would expect, the prison officers contacted police about the contents of the letter.

20. Two days later, on 30 May 2016, the applicant continued his threats. He stated on three occasions to a prison officer that he had hidden a bomb in the same courthouse. Police were again contacted, and informed of the further threats made by the applicant.

21. The applicant was interviewed electronically by a detective later that evening at the gaol. During the interview, the applicant claimed to have hidden an explosive device in the male toilets of the courthouse. He also provided the police with three handwritten pages reiterating that assertion, along with his intention to cause fatal harm to the magistrate. The document included the following verbatim:

“This is not a hoax. I have taken time to confese due to various reasons but there is a bomb in Queanbeyan Court House the timer is set for 596 hours with TNT. It was done on Monday 23/5/16 when I was in court.

I informed the corrective services officer on the emergency button 3 times at approximately 23.40hrs 30-05-16 he did not believe me at all.

AGAIN THIS IS NOT A HOAX THIS IS REAL.

My min number of 245848.

I’m fully aware of the consequences and it will entail further jail time. I am sane not insane. I also do know and confese that if I’m released early or on the 23/12/16 I have thought and would kill the magistrate in Queanbeyan that put me here by means of a 12 GUAGE PUMP ACTION.”

22. During that first recorded interview, the applicant provided quite a few details about the purported placement of the explosive in the courthouse. That included its precise location; the date upon which it had been placed; the time at which it had been placed; when it would explode; the explosive material of which it consisted; the assertion that it had been purchased on the black market; and how much it had cost him to buy. The applicant also provided the police with hand-drawn diagrams of the courthouse, the area where the device was said to be secreted, and what it looked like.

23. That night, a number of police were recalled to duty, and a search (described in the agreed facts as “comprehensive”) of the whole courthouse was conducted. Nothing sinister was located.

24. About a week later, on 7 June 2016, the applicant was transferred from gaol to the police station at Goulburn. He engaged in a further electronically recorded interview. He spoke of having undertaken prior research about the level of security at the courthouse in question, and having noted the time of arrival of the magistrate each morning. He confirmed that he continued to wish to cause harm to that judicial officer. With regard to the fact that he had withdrawn his appeal, he spoke of having done so in order to stop himself from doing violence to the magistrate if at liberty.

25. When the police enquired whether the applicant intended to carry out the threats contained in his letters, or if they were intended to cause fear, he said:

“Well, I’m bein’ honest with you, more, maybe in time I might change my opinion, but at the moment, I wouldn’t bat an eyelid if I had to kill the bastard. I’m sorry, but, I’m sorry…honest with you.”

26. Furthermore, he confirmed that the reason that he did not trust himself if no longer incarcerated was that if at liberty he would “more than likely” go back to the courthouse, take advantage of the “lax security” at that location, enter the building with a firearm, and shoot the magistrate who had sentenced him. At that stage of the interview he also insisted upon his sanity.

27. The applicant also claimed that he had informed police about the purported bomb because of his concern about harming “innocent” people (that is, persons at the courthouse other than the magistrate). He maintained the position that he would have taken the plan to fruition if he had known that the magistrate was the only person in the building.

28. In the same interview, he spoke of having started to research how to make explosives “back in April”, as he had fully expected to be imprisoned on 23 May 2016. He gave details of having researched and purchased the necessary items on the “dark web”, and having had them delivered to his home. He spoke of having a friend who knew about the device, but declined to name him or her. He explained that he had instructed that person to remove the device if the friend had heard nothing from the applicant for a week after the date of sentence, and proffered that as an explanation as to why the police had found nothing.

29. The applicant said that he did not regret what was contained in his letters.

30. Finally, the applicant spoke of having access to an unregistered shotgun that was stored at his mother’s home in another country town. He told the police where it could be found. The following day, the police attended that address, and indeed located a shotgun. The agreed facts speak of that firearm appearing to be in working order.

Subjective features

Generally

31. The following is derived from the remarks on sentence, and from the evidence tendered in the proceedings on sentence.

32. The applicant pleaded guilty to all three offences in the Local Court. His Honour applied an uncontroversial discount of 25% to the starting point of the three indicative sentences as a result.

33. Contrary to the position of the applicant at the time of the investigation of the offences, his Honour accepted that, by the time the matter came before the District Court for sentence, the applicant regretted what he had done.

34. The applicant was born in March 1972, with the result that he was aged 44 years both when he committed the offences and when he came before the sentencing judge.

35. His criminal record had commenced in 1989―that is, almost 28 years before the proceedings on sentence—and extended beyond New South Wales. It did not include offences of frank violence, although there was an offence in 2010 of breaching an apprehended violence order, an offence in 2015 of resisting a police officer, and offences in 1997 and 2014 of carrying knives.

36. On the one hand, the applicant had never actually served a sentence of imprisonment prior to his appearance before the magistrate (bearing in mind a number of previous successful sentence appeals to the District Court). On the other hand, he had been sentenced on well over 20 occasions, and, when one takes into account occasions upon which he had been sentenced for multiple offences, had committed more offences than that.

Evidence about mental state of applicant

37. Because of ground two, it is necessary to review the evidence about the mental state of the applicant that was placed before the sentencing judge in some detail.

38. A pre-sentence report spoke of the contact between the applicant and Community Corrections over many years. It stated that “case management strategies have included mental health and [alcohol and other drugs] referrals and assessments”. The report noted that, during his most recent period of incarceration (referable to this matter), the applicant had been shown by drug tests to be continuing to abuse prescribed drugs.

39. The pre-sentence report recorded that the applicant was born in the Australian Capital Territory, and seemingly enjoyed a stable and happy upbringing. After his father died of cancer in 2009, the applicant had difficulty dealing with his grief. Regrettably, the applicant commenced to use crystal methylamphetamine (ice) in 2011 in order to deal with his emotional suffering. By the time he appeared before the magistrate in May 2016, he was injecting that drug.

40. The pre-sentence report stated that the psychiatrist of the applicant had been contacted by the author, and he had confirmed a history of substance abuse, along with an unfulfilled desire to “engage in interventions” with regard to drugs.

41. The pre-sentence report stated that the applicant had been under psychiatric care since 2004, although recent contact had been sporadic. It reported that his initial contact with a psychiatrist was with regard to epilepsy, but that the applicant was later diagnosed with “chronic anxiety state with social difficulties”, exacerbated by “substance abuse patterns”.

42. The report also recorded that contact with the psychiatrist of the applicant “confirmed conflicting reports of a diagnosis of ‘frontal lobe brain damage’ that was identified by [the general practitioner of the applicant]”.

43. Finally, the pre-sentence report of 7 November 2016 said that a Justice Health psychiatrist had, in about September 2016, diagnosed the applicant with Bipolar Disorder, and commenced him on medication for it.

44. A psychological report of February 2017 was part of the defence case. It spoke of difficulties at school, and an early realisation by the applicant that he was gay. An attempt to seek support and guidance from an older gay man resulted instead in the applicant being sexually abused by that person. That in turn led to the applicant abusing alcohol and cannabis at an early age, and a departure from school and the family home not long afterwards.

45. After that, the life of the applicant was disrupted and unhappy. By his 20s, he was drinking heavily and abusing methamphetamines. The psychological report recorded that at that stage he was “reportedly” diagnosed with depression, and prescribed medication for it.

46. At the age of 30, the applicant was “reportedly” diagnosed with epilepsy, and placed on a permanent disability support pension.

47. The psychological report confirmed that, after the death of his father, the mental health of the applicant declined, and his abuse of prohibited drugs escalated.

48. The psychological report quoted in turn from a tendered report of the general practitioner of the applicant of 22 March 2016 (the psychological report wrongly records that it was dated 2017). It recorded that the applicant, according to the general practitioner, “suffered frontal lobe damage at birth”. That was said to have been the result of oxygen deprivation, and it led, according to the general practitioner, to “epilepsy, frontal lobe injury and mental health dysfunction (anxiety and depression)”.

49. The psychological report also spoke of a longstanding diagnosis of depression, and efforts to deal with it by way of medication. It also spoke of intermittent sessions with a psychiatrist at a private hospital on the New South Wales South Coast.

50. The psychological report recounted the diagnosis provided by that psychiatrist, in his report of 6 April 2016 (that is, shortly before the imposition of sentence in the Local Court, not the District Court): the applicant suffered from “a chronic anxiety state with social difficulties. This is associated with personality difficulties, which date back to adolescence”.

51. The psychological report spoke also of repeated suicide attempts; two separate periods spent in the mental health unit of two different hospitals, totalling seven weeks; and the recent diagnosis whilst in custody of Bipolar Disorder.

52. The psychologist ultimately emphasised the “early sexual identity confusion” of the applicant; his long-standing diagnosis of depression; the opinion that the applicant suffered from Substance Dependence Disorder with regard to methamphetamines; the recent diagnosis of Bipolar Disorder; and the discussion of brain damage at birth by the general practitioner. The psychologist recommended “further neuropsychological assessment” with regard to the latter.

53. Reports from Dr Watson, the applicant’s general practitioner, of 22 March 2016 and 22 November 2016 were also part of the defence case. They spoke, as I have said, of brain damage at birth, affecting the ability of the applicant to make “sensible decisions”. They also spoke of that brain damage making the applicant susceptible to being manipulated by unscrupulous people.

54. In the second report of 22 November 2016 (that is, some months after the commission of the three offences under consideration), the general practitioner spoke of the applicant not presenting any “danger or concern to the public”; that opinion is immediately preceded by the “understanding that [the applicant] has never been violent or made any threats of violence”. I interpolate that, palpably, that understanding of the general practitioner was quite wrong.

55. Reports of the applicant’s treating psychiatrist of 24 March 2016 and 6 April 2016 were also placed before his Honour. Those reports had been prepared for the Local Court proceedings, not the District Court proceedings, and therefore say nothing of the central events subsequent to the imprisonment of the applicant on 23 May 2016.

56. The psychiatrist diagnosed the applicant with a “stable epileptic condition”, “chronic anxiety state with personality difficulties”, and “chronic substance abuse disorder of indeterminate duration”.

57. In other words, the psychiatrist who had been treating the applicant for many years as at March and April 2016 said nothing in either report about frontal lobe damage, or any other brain damage, having been suffered by the applicant at birth.

58. The subjective material placed before his Honour concluded with a handwritten letter of the applicant proffering an apology for what he had done; speaking of his impairment as a result of the use of prohibited drugs; expressing an appreciation of the gravity of his conduct; drawing a contrast between the seriousness of what had occurred in 2016 and the relative triviality of the previous offending of the applicant; and expressing a determination to ensure that nothing similar would occur again.

Summary of submissions made for applicant at first instance

59. No written submissions were provided to his Honour by the lawyer appearing for the applicant on sentence. The following is a summary of the oral plea in mitigation.

60. It commenced with a concession that the offences were serious, and that only a sentence of full-time imprisonment could be imposed.

61. The link between the criminal record of the applicant and his problem with prohibited drugs was emphasised.

62. Reference was made to frontal lobe damage inflicted at birth, but it was also said that “[w]hat that means to him now as an adult, I accept is inconclusive.”

63. The struggle of the applicant with his sexuality as an adolescent was noted, and the damage that was inflicted by the sexual assault was emphasised. So was the downward spiral suffered by the applicant after the death of his father in 2009.

64. It was submitted that the Bipolar Disorder had, regrettably, not been diagnosed until the applicant went into custody.

65. The written claim of the applicant to have been well-affected by prohibited or prescribed drugs at the time of the offending was emphasised by the defence advocate.

66. A theory was posited that at the time of the offending the applicant was perhaps in the manic phase of the Bipolar Disorder.

67. The bizarre openness of the offending – including, of course, the fact that the applicant identified himself as the offender by way of his MIN number and his signature, and the provision personally of the letter to prison officers – was emphasised.

68. A submission was made about the appropriate length of the sentence based upon two cases relied upon by the Crown on sentence.

69. Special circumstances were sought, as was a full discount for the pleas of guilty entered in the Local Court.

70. The electronically recorded interview was relied upon as containing frank admissions of offending; the odd aspects of the admissions were also noted.

71. The plea in mitigation concluded by emphasising that this offending, and indeed all of the offending of the applicant, could readily be traced back to the sexual assault that he had suffered as an adolescent, and the psychological damage that that had inevitably inflicted upon him.

Aspects of remarks on sentence

72. I now proceed to extract portions of the remarks on sentence that are relevant to the various grounds that have been notified.

73. With regard to ground one generally, his Honour recounted the agreed facts in some detail. Having concluded that summary by noting the claim that a bomb would have exploded if it had been only the magistrate who would have been murdered, and the claim that research had commenced in April 2016 with regard to the impending sentencing of late May 2016, his Honour remarked:

“So this appears to be a long-hatched plan with considerable deliberation. In relation to sourcing items for the making of the alleged bomb, he indicated that he conducted research on the dark web and had purchased items that were delivered to his house, [addressed to] Alex Kennedy”.

74. Later, his Honour said:

“One only has to read those facts to realise just how serious this matter was and is. The facts essentially speak for themselves, as to the gravity of the threat, as to the deliberation, as to the length of time he sustained his animosity toward the magistrate. He threatened to kill the magistrate and cause destruction to the courthouse. It is an astonishing level of persistent vindictiveness towards the magistrate who was just doing his job, keeping a disqualified driver off the roads and meting out an appropriate punishment.”

75. Later, his Honour remarked:

“The Crown submits that this is an offence that strikes at the heart of the administration of justice. Well it is trite to say that, that’s correct, and denunciation and deterrence are particularly important, I accept all that. I have been handed a couple of authorities that are not generally instructive [scil. delete “not”?] but each case has to depend on its own facts and circumstances.”

76. Finally, in discussing the various purposes of sentencing, his Honour said “[i]ndeed these are extremely serious examples of offences of this type.”

77. With regard to ground one (a), his Honour said nothing in the remarks on sentence about whether or not the threats of the applicant were actually communicated to the sentencing magistrate.

78. With regard to ground two, in the remarks on sentence his Honour spoke of there being a “wealth of other material” beyond the agreed facts and the criminal record of the applicant. His Honour thereafter summarised the pre-sentence report, including what it had to say about the mental health of the applicant.

79. As for the reports from the general practitioner, his Honour said “I have had regard to those but I won’t refer to them in any detail. They do confirm that he has got some sort of chronic anxiety and personality difficulties.”

80. Thereafter, his Honour discussed the psychological report in a detailed summary that extends over a page of the remarks on sentence. In that summary, his Honour said:

“Under medical history it is revealed that he suffered some frontal lobe damage at birth. A suggestion from Dr Watson is that it resulted in epilepsy, the frontal lobe injury and mental health dysfunction, anxiety and depression. There is no actual exploration of the extent of the front [scil frontal] lobe damage, and it’s a matter of some mystery but I accept he has some frontal lobe damage.”

81. His Honour turned to synthesise all of that material as follows:

“Now what does it all mean? This is one of those cases where there are countervailing considerations. He does have bipolar, he has the substance abuse disorder, he has this anxiety condition, he has antisocial features of his personality but none of those conditions in my view actually precluded a very substantial appreciation of the gravity of his conduct or the consequences of his conduct. He knew very well that this was very serious conduct to make these threats and he knew by doing so he would be sent to further imprisonment and this conduct wasn’t spontaneous. It was persistent and repeated and indeed he harboured the animosity for many days after the offences. He still maintained the rage with police nine days after the initial offence.

To the extent that his mental condition could be considered to mitigate gravity, there are clearly the countervailing considerations, namely his antisocial personality features make him susceptible to such outbursts.”

82. As for ground three, after having discussed the criminal record of the applicant in some detail, his Honour remarked “[t]he Crown submission does talk about the record in terms of denying leniency that would otherwise be available. It seems to me that it is a record that manifests persistent disobedience and I propose to treat it that way, as aggravating on sentence but not of objective gravity. I also take into account that these offences occurred while the offender was supposed to be well behaved in gaol.”

Aspects of sentence imposed

83. His Honour declined to make the aggregate sentence for these three offences concurrent or partly concurrent with the sentence imposed in the Local Court for the driving offence. That aspect of the sentence structure was not impugned on appeal.

84. For the first offence of threatening to do injury to a person on account of something lawfully done by a person as a judicial officer (committed on 28 May 2016), his Honour indicated a head sentence of three years two months. Removing the discount of 25%, one arrives at a starting point of four years two months and three weeks.

85. For the identical offence committed on 30 May 2016, his Honour indicated a head sentence of imprisonment for three years six months. Again, removing the discount, one arrives at a starting point of four years eight months.

86. For the third offence of conveying false information that a person or property is in danger, his Honour indicated a head sentence of one year six months. There was a starting point, therefore, of two years.

87. As I have said, a fully cumulative aggregate head sentence of four years three months was imposed, with a non-parole period of two years nine months. Clearly enough, special circumstances were found that led to a reduction in the ratio between the non-parole period and the head sentence; if that had not occurred, the aggregate non-parole period would have been three years two months and 1 week.

Ground one    

His Honour erred in his assessment of the objective seriousness of the s 326 Crimes Act offences by:

(a)    failing to take into account the fact that the threats were not communicated to the putative victim; and

(b)   finding that the offences were the culmination of “long-hatched plan with considerable deliberation.

Submissions in support of ground one

88. In written submissions, counsel for the applicant asserted that the sentencing judge erred by failing to take into account a material consideration; namely, the fact that the threats were never communicated to the “victim”.

89. It was said that the offence-creating provision was “ambiguous”, but the decision of this Court in Linney v R [2013] NSWCCA 251 was relied upon for the proposition that the offence could be committed even though the threat was not communicated to the “putative victim”. If that be the case, it was submitted, then the failure to communicate the threat to the victim, with no adverse effect upon him or her as a result, should ordinarily reduce the objective seriousness of the offence.

90. It was said to be an error for the sentencing judge to assess the offences as extremely serious, without acknowledging the absence of any evidence of the magistrate having learned of the threats.

91. In oral submissions with regard to this sub-ground, attention was also invited to the decision of the High Court of Australia in Austin v the Queen [1989] HCA 26; 166 CLR 669. It was said that that case illuminates the elements of the offence under consideration here, in that, at page 674 of the unanimous judgment of the High Court of Australia, it was said that an act cannot be a demand “unless it is made with the intention that it should be conveyed or communicated to the person to whom it is directed and in circumstances which are apt to achieve that end”.

92. Reference was also made to the decision of this Court in R v Jaques [2002] NSWCCA 444, in which Dowd J (Wood CJ at CL and Bell J agreeing) said: “The learned sentencing judge in sentencing spoke of the seriousness of the offence. The offence [in s 326 of the Crimes Act] of course is complete with the uttering of the words, and in the circumstances of the uttering of those words, the finding of guilty by the jury is not a finding of his intention to carry out the threat.”

93. It was emphasised that consideration of the fact that there was no evidence of receipt of the threat by the magistrate was necessary for a proper assessment of the objective gravity of the offence.

94. It was accepted that, in the plea in mitigation, the defence advocate had not explicitly made the point now being made at the hearing of the application.

95. It was said that, although there was no evidence that the magistrate was told of the threat, even if that had been the case, the magistrate would surely have appreciated the falsity of the threat.

96. Oral submissions about this sub-ground concluded with the concise proposition that the sentencing judge should have referred, albeit briefly, to the fact that there was simply no evidence that the magistrate had been informed of the threat, let alone traumatised by it.

97. As for ground one (b), in written submissions it was said that what really had happened here was that a mentally ill person had made threats that were nothing other than “bald assertions”, which were completely unfounded on investigation. A detailed analysis ensued in the written submissions of what the applicant had said at various stages, with an eye to showing that it simply could not be accepted. And yet the truthfulness of what the applicant had said about his preparatory steps had been accepted by his Honour. That aggravating feature, it was said, was a finding of fact that was simply not open on the evidence.

98. In oral submissions, it was said that the fact that his Honour spoke of how things appeared to be did not make any difference to the question of whether an adverse finding of fact that was not open had been made.

99. It was accepted that neither the applicant nor his advocate explicitly resiled from the truth of anything that the applicant had said to the authorities. Turner v R [2016] NSWCCA 44 and Cowan v R [2015] NSWCCA 118 were relied upon, however, for the proposition that the failure of a defence advocate to emphasise something fundamental does not relieve a sentencing judge or magistrate of the responsibility to take it into account nevertheless.

100. The point was finally made that the third count brought against the applicant inherently meant that both the Crown and the applicant accepted that some of the things that he had said to the authorities were false.

Determination of ground one

101. Speaking first in a general way about the assessment of objective seriousness, I discern no error in the assessment by his Honour of this offending as extremely serious.

102. I say that because, in summary, grave threats were made, over an extended period, to murder a magistrate and to blow up a courthouse. That was in response to the judicial officer simply fulfilling his duty in the administration of justice. The threats inevitably needed to be taken seriously by the authorities. Furthermore, the murder was threatened to be committed by way of a shotgun, and inquiries revealed that precisely such a weapon was indeed available to the applicant.

103. All of that shows that the assessment of objective gravity was well open to the sentencing judge.

104. Turning to the particulars of this ground, it was not an error for his Honour to fail to refer to the proposition that the threats made by the applicant had not been conveyed to the magistrate. That is so for the following reasons.

105. First, neither the agreed facts, nor any other evidence, spoke of whether or not the threats had indeed been so conveyed. Speaking generally, a sentencing judge or magistrate is not required to refer to propositions about which there was no evidence placed before him or her.

106. Secondly, if anything, bearing in mind that a comprehensive search was undertaken shortly after 30 May 2016 of a regional courthouse at which the magistrate had been sitting on 23 May 2016, one might infer that the magistrate did indeed come to know of the threats that had been made.

107. Thirdly, the lawyer appearing for the applicant at first instance made no submission that the sentencing judge should take into account the proposition now said to have been overlooked. The well-known principle in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 therefore has an important role to play with regard to this particular of the ground.

108. Fourthly, I respectfully think that reliance upon the decision of the High Court in Austin v The Queen is inapposite. That was a decision construing a different word (“demand” as opposed to “threat”), in a different offence-creating provision, in the context of a different statute, in a different Australian jurisdiction, and with a different legislative history.

109. To my mind, the elements of the variant of the offence under consideration are simple: threatening to do harm to any person, on account of something done by a person, as a judicial officer.

110. And as this Court made clear in R v Jaques, it is the making of the threat that needs to be proven, not any intention to carry it out.

111. Fifthly, as for the decision at first instance of R v Linney [2012] NSWSC 1564, and the decision of this Court in the same matter of Linney v R, it was accepted in those cases that emotional harm to the judicial officer with regard to whom a threat is made is an aggravating factor, not an element of the offence. So much may be readily accepted; but a sentencing judge is not required to refer to the absence of an aggravating factor in assessing objective seriousness, especially when no reliance has been placed upon that absence.

112. Sixthly and finally, it may be accepted that this Court has regarded the general principal in Zreika v R as by no means inflexible, and has taken the view that matters fundamental to the subjective case of an offender (such as youth and mental illness in Cowan v R, or drug and alcohol abuse or profound depravation in Turner v R) are not to be disregarded on sentence, even though not emphasised in a plea in mitigation. But such factors are fundamental to the assessment of the subjective case of an offender, and his or her resultant moral culpability; they may be sharply contrasted with, as here, the absence of an aggravating objective feature.

113. In summary, the elements of the two offences against s 326 of the Crimes Act were unquestionably encapsulated in the agreed facts. In my opinion, it was not incumbent upon the sentencing judge, in assessing objective seriousness, to refer to aggravating or mitigating features (or the absence thereof) beyond those elements, about which there was neither evidence nor submissions placed before his Honour.

114. As for the second particular of the first ground, in my opinion, there was no error in his Honour finding that “this appears to be a long-hatched plan with considerable deliberation.” I say that for the following reasons.

115. First, there were aspects of the matter that did indeed give it that appearance. Those aspects appear in my summary of what the applicant said, orally and in writing, to the police and others on a number of occasions.

116. Secondly, it is true that the failure to find any sort of device in the courthouse, combined with the mental state of the applicant, leads one to doubt the truthfulness of much of what the applicant had to say. But neither his lawyer (in the plea in mitigation) nor the applicant (on oath, or in the tendered document) said a word resiling from the contents of the electronically recorded interviews about the preparations that had been undertaken (in particular, the research on sinister parts of the internet and the purchase of items therefrom). Nor did the defence lawyer submit that any favourable finding of fact (in the sense of not being satisfied beyond reasonable doubt of their correctness) should be made about those matters.

117. Thirdly, it is true that both the Crown and the applicant accepted that some of what he had told the authorities was false; so much can be seen by the bringing of the third charge by the Crown, and the plea of guilty to it by the applicant. But that joint position hardly meant that all that the applicant had said was false. Again, no submission of that kind (along the lines of some form of resultant issue estoppel against the Crown) was made to his Honour at first instance.

118. In my opinion, there was no error in his Honour finding that the making of the threats, far from being some spontaneous expression of anger, appeared to have been planned for a period before 23 May 2016, and the subject of forethought on the part of the applicant. The finding of fact made by his Honour was reasonably open on the evidence placed before him.

119. In short, I would not uphold any aspect of ground one.

Ground two

His Honour erred in the manner [in which] he took the applicant’s mental illness into account.

Submissions in support of ground two

120. In written and oral submissions, counsel for the applicant impugned the finding of his Honour that the applicant well understood the gravity of what he was doing. Also attacked was the reference to “countervailing considerations”. It was said that those findings constituted an effective dismissal of “any link between the applicant’s mental conditions and his moral culpability for the offences.”

121. It was also said that, although passing reference had been made to the reports from the general practitioner of the applicant, no detailed analysis of his reports was provided. It was said that, due to the “explicit nature” of the reports from the general practitioner, the sentencing judge “should have given reasons for dismissing a connection between the mental conditions and the offending”.

120. It was also said that there should have been reference to the proposition that the mental conditions of the applicant would inevitably mean that his time in custody would be more difficult than for a person not suffering from such conditions. The submission was that such a finding was supported by the reference in the pre-sentence report to the applicant appearing to be someone who had been adversely affected by the time he had already spent in custody, and as someone who was genuinely afraid of more incarceration.

Determination

123. I do not perceive any error in the approach of his Honour to the mental condition of the applicant.

124. In fact, bearing in mind that the psychologist queried whether the applicant had suffered brain damage at birth, and his treating psychiatrist said nothing at all about it in his two reports, it could be said to have been a generous finding of fact of his Honour to accept that the applicant had indeed suffered frontal lobe damage.

125. Separately, read as a whole, the remarks on sentence show that his Honour did indeed take into account the mental condition of the applicant, and did so, partly at least, in mitigation. If that had not been the case, I consider that his Honour would not have engaged in a detailed analysis, and synthesis, of all of that material.

126. More generally, as long ago as in R v Engert (1995) 84 A Crim R 67 Gleeson CJ spoke of the countervailing considerations that very often arise in the case of people who commit serious offences and who suffer from psychological or psychiatric conditions.

127. Here, on the one hand, the sentencing judge took into account the mental condition of the applicant as a matter in mitigation. On the other hand, his Honour came to the view that the applicant well appreciated not only what he was embarking upon when he handed over the note to the prison officers, but also its gravity. His Honour also noted that the mental condition of the applicant could make him more prone to commit serious offences of this kind. That latter finding cannot be the subject of complaint: it was part of the plea in mitigation.

128. In short, I do not accept that his Honour failed to find that there was a link between the mental conditions from which the applicant suffered and his moral culpability for what he had done. To my mind, the extracts that I have provided from the remarks on sentence demonstrate the contrary.

129. As for the proposition that time in custody would be more difficult for the applicant than other prisoners, the simple fact is that the defence advocate did not rely upon that factor in his plea in mitigation.

130. Finally, it is true that his Honour referred to the reports of the general practitioner, without analysing them in great detail. But that was hardly exceptionable, bearing in mind that his Honour had a comprehensive report from a forensic psychologist, and reports from the treating psychiatrist of the applicant.

131. Yet again, nothing was said by the defence advocate placing great weight on what the general practitioner had had to say; indeed, to the extent that the general practitioner expressed the opinion about frontal lobe damage, as I have shown from the extract from the plea in mitigation, the defence advocate suggested that condition was unclear in its consequences in any event.

132. In my opinion, nothing that his Honour said in the detailed discussion in the remarks on sentence about the mental conditions of the applicant bespeaks an error of fact or legal principle. In summary, the reference to countervailing considerations was orthodox, and the overall approach was well open on the evidence.

133. I would not uphold ground two.

Ground three

The applicant was denied procedural fairness prior to the learned sentencing judge finding that his record “manifests persistent disobedience”.

Submissions in support of ground three

134. In written and oral submissions, it was said that the finding of the sentencing judge that the criminal record of the applicant “manifests persistent disobedience” led to his Honour treating that criminal record as “aggravating on sentence but not of objective gravity”. It was submitted that his Honour was “clearly applying” the principles in Veen (No.2) [1988] HCA 14; (1988) 164 CLR 465. It was submitted that no notice that that distinctly adverse approach would be taken, and that procedural fairness was denied to the applicant as a result.

135. It was said that the unfairness was exacerbated by: the fact that, in truth, the criminal record of the applicant, although lengthy, should be characterised as relatively minor; the difference between the offences under consideration and the offences contained in that record; and the evidence as to the mental conditions and character of the applicant.

136. In oral submissions, counsel maintained the position that the true reading of that portion of the sentence under consideration was that his Honour had indeed applied the adverse principles to be found in Veen (No.2).

Determination of ground three

137. This ground stands or falls on the proposition that his Honour dealt with the applicant in accordance with the exceptional approach discussed in Veen (No.2). If that primary proposition is not accepted, then the ground falls away.

138. I do not accept the basal proposition, for the following reasons.

139. First, to repeat for convenience, the sentence relied upon in the remarks on sentence is “[i]t seems to me that it is a record that manifests persistent disobedience and I propose to treat it that way, as aggravating on sentence but not of objective gravity.”

140. The first part of that sentence is (as counsel for the applicant accepted at the hearing before us) unexceptionable: the criminal record of the applicant did indeed demonstrate disobedience to the criminal law over a period of many years.

141. The very last part of the sentence is also unexceptionable: a criminal record of an offender does not aggravate the objective seriousness of an offence committed by him or her; it is a subjective feature of the offender, not an objective feature of the offence.

142. I do not accept that, tucked in between those two correct propositions, the sentencing judge was speaking elliptically of the approach to be found in Veen (No.2), when speaking of the criminal record as being “aggravating on sentence”.

143. If his Honour had indeed been intending to approach the applicant ― on the basis of the accused demonstrating a continued danger to the public due to his mental condition or previous criminal history ― by imposing a sentence that went beyond being proportionate to the gravity of the offences under consideration, the sentencing judge would surely have said so far more clearly.

144. Secondly, the lengthy but sometimes rather trivial criminal record of the offender is hardly the kind of evidence that would lead a sentencing judge to apply Veen (No.2). It inherently suggests that his Honour did not do so.

145. Thirdly and finally, the absence of previous offences of significant violence ― even previous offences that explicitly consisted of threats of violence ― in the criminal record of the applicant strongly supports the same conclusion. In the vast majority of cases, it will surely be a new offence of serious violence, in the context of numerous prior offences of serious violence, that will cause a sentencing judge to apply Veen (No.2).

146. In my opinion, his Honour was merely making a shorthand statement that the applicant had been disobedient to the criminal law over an extended period; that that fact did not aggravate the offending under consideration (which was very serious in any event); and that the record of previous convictions was generally aggravating (as indeed it is expressed to be by s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). There is nothing erroneous in any aspect of that shorthand statement.

147. I would not uphold ground three.

Ground four

The sentence is manifestly excessive.

Submissions in support of ground four

148. Counsel for the applicant made clear that this ground was informed by, but not dependent upon, the success of any one or more of the other grounds.

149. Particular emphasis was placed upon the circumstances of the offending, including the two aspects relied upon with regard to the first ground. Reliance was also placed upon the lengthy but relatively trivial criminal record of the applicant, his remorse, and his mental conditions. R v Jaques was relied upon, in which a head sentence of imprisonment for two years with a non-parole period of one year imposed at first instance was quashed by this Court, and replaced by a sentence of periodic detention. So was R v Linney, in which a head sentence of three years nine months with a non-parole period of two years five months was not disturbed on appeal to this Court.

Determination

150. In my opinion, this ground can be resolved shortly.

151. The offending in this case went far beyond the spontaneous outburst in R v Jaques.

152. R v Linney was a case in which the applicant made threats of death against a judicial officer, and spoke of “a bullet in his head”. The applicant also spoke of the notorious assassination of a judge many years ago, and intimated that he was aware where the judicial officer resided. The judicial officer and his associate became aware of the threats, and were extremely concerned and upset.

153. The applicant in that case pleaded guilty in the Local Court, and was sentenced in the Supreme Court. The sentencing judge approached the matter on the basis that the applicant was of prior good character. The sentencing judge accepted that the applicant suffered from significant psychological problems. His Honour also accepted that serving a sentence in New South Wales would be more onerous for the applicant, because his family lived in Queensland. No positive assessment was made of the prospects of rehabilitation of the applicant.

154. In dismissing the appeal against sentence (including a ground asserting manifest excess), RA Hulme J (Gleeson JA and Adamson J agreeing) said at [88]:

“The sentence was undoubtedly a severe one to pass upon a person of the applicant's background and personal circumstances. But his conduct, amounting as it did to a direct attack upon the administration of justice, called for a severely denunciatory sentencing imposition.”

155. The head sentence imposed in R v Linney of three years nine months does not support the proposition that the aggregate head sentence imposed here of four years three months is manifestly excessive.

156. More generally, it is true that the applicant had suffered a disrupted and damaged life. It is also true that he suffers from a number of psychological and psychiatric difficulties; that he had come to see the gravity of what he had done; that his criminal record did not previously contain offences of the utmost seriousness; and that the offending had its bizarre aspects.

157. To be weighed against those factors is the profound gravity of a threat to destroy a courthouse by explosives; the equal seriousness of a threat to murder a judicial officer – in retribution for a sentence that he or she has imposed – by way of blasting his head off with a shotgun; the fact that the threats were not merely spontaneous, short-lived outbursts, but were maintained orally and in writing over an extended period; the fact that the applicant did indeed have access to the kind of firearm of which he spoke; the resources that were wasted as a result of the offences; the fact that the applicant had been committing criminal offences for almost 28 years prior to his appearance before the sentencing judge; and the fact that, as a matter of simple logistics, judicial officers doing their duty within the criminal justice system by sitting in country towns are inevitably in a position of even greater vulnerability than their urban counterparts.

158. In my opinion, weighing up all of those circumstances, although the starting points of the indicative sentences were significant, the aggregate head sentence actually imposed, and implicitly reflecting the principle of totality, is within the range open to the discretion of his Honour. It cannot be characterised as excessive, let alone manifestly so.

159. As for the aggregate non-parole period, it could perhaps be characterised as lenient.

160. In my opinion, neither the aggregate head sentence nor the aggregate non-parole period fell outside the discretion reposed in the sentencing judge.

161. It follows that I would not uphold ground four.

Conclusion

162. I consider that, although all were arguable, none of the grounds of appeal should succeed.

163. Finally, it follows that an ancillary dispute about the admissibility of some of the material relied upon by the applicant (as against the possibility that this Court might move to re-sentence) does not require determination.

Proposed orders

164. For the above reasons, I propose the following orders:

(1)   Leave to appeal granted.

(2)   Appeal against sentence dismissed.

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Decision last updated: 28 March 2018