Linney v R

[2013] NSWCCA 251

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Linney v R [2013] NSWCCA 251

Hearing dates:

11 October 2013

Decision date:

05 November 2013

Before:

Gleeson JA at [1]
R A Hulme J at [2]
Adamson J at [90]

Decision:

1. Leave to appeal against sentence granted.

2. Appeal against sentence dismissed.

Catchwords:

CRIMINAL LAW - sentence appeal - offence of threatening judicial officer - threats of death - no failure by sentencing judge to have regard to subjective features - range of conduct encompassed by the offence - stern sentence appropriate

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

King v R [2010] NSWCCA 33
Makarian v The Queen [2005] HCA 25; 228 CLR 357
R v Baker [2000] NSWCCA 85
R v David Linney [2012] NSWSC 1564
R v Dodd (1991) 57 A Crim R 349
R v GWM [2012] NSWCCA 240

Category:

Principal judgment

Parties:

Darren Linney (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr G Heathcote (Applicant)
Ms H Wilson SC (Crown)
Solicitors:
Proctor & Associates
Solicitor for Public Prosecutions

File Number(s):

2012/124787

 Decision under appeal 

Jurisdiction:

9111

Citation:

R v Darren Linney [2012] NSWSC 1564

Date of Decision:

2012-12-14 00:00:00

Before:

Bellew J

File Number(s):

2012/124787

Judgment

1. GLEESON JA: I agree with R A Hulme J.

1. R A HULME J: Darren Linney ("the applicant") applies for leave to appeal against a sentence imposed upon him by Bellew J on 14 December 2012. The sentence was one of 3 years 9 months with a non-parole period of 2 years 5 months and it was imposed following the applicant's plea of guilty to a charge that he threatened to cause injury to a judicial officer on account of something lawfully done, namely delivering a judgment in the District Court in a civil case.

1. The offence is against s 326(1) of the Crimes Act 1900 (NSW). The prescribed maximum penalty is imprisonment for 10 years.

Facts

1. The facts in the matter were not disputed. The following summary is largely derived from his Honour's reasons for sentence.

1. In 2003, the applicant and his family moved to Emerald Beach in northern New South Wales. Initially his family got along well with the family next door. But after a while the relationship soured to a point where the neighbours moved away. The neighbours commenced proceedings in the District Court against the applicant and his partner, Ms Morris, claiming damages for nuisance, defamation and personal injury.

1. His Honour Judge Johnstone ("the judge") presided over the hearing of the action over several weeks in February 2012. He gave judgment on 15 March 2012 in which he gave a verdict for the plaintiffs and ordered the applicant and his partner to pay damages totalling some $189,000.

1. The applicant was not present in court when the judgment was delivered. The judge's associate emailed a copy of the judgment to the applicant together with details as to further orders that had been made in relation to costs. This was on the morning of 15 March 2012. Within an hour the associate received an email reply from the applicant in which derogatory remarks were made about both the judgment and the judge. She informed her judge of the email and placed a hard copy on the court file. She replied to the applicant to the effect that the judge had no further function to perform in the case and that any further communication should be with the Registrar of the Court.

1. On 10 April 2012, an email was received at the Customer Assistance Unit of the New South Wales Police Force. It was the first of a series of three emails sent by the applicant that are the foundation of the offence. Each of the emails are quoted at length in Bellew J's sentencing judgment: R v Darren Linney [2012] NSWSC 1564 at [16]-[20].

1. The email to the police was in quite inflammatory terms. It included a number of derogatory statements about the applicant's former neighbours and complaints about a perceived lack of assistance the applicant had received from police. But it also included the following:

"Remember Judge Opas. The next is Judge Jonestone [sic] of the District Court."

"A bullet in his head for him would not be a dream."

"Please take me seriously."

"Don't think this is a joke."

1. As Bellew J observed, the reference to "Judge Opas" was clearly a reference to the late judge of the Family Court of Australia who was shot and killed at his home by an unidentified gunman in 1980.

1. The second email was received by the judge's associate when she arrived at work on Monday 16 April 2012. It had been sent by the applicant the previous Saturday morning. It included criticism of the judge in the most vile and derogatory terms. It warned that the applicant knew where the judge lived. It threatened, in part:

"Remember Judge Opas. You should join him. I will now to the same to you."

"You being such an incompetent and corrupt judge and a faggot should be wasted."

"Maybe you should start digging your own hole. You will rot in hell much quicker and earlier than you anticipate."

"Can't wait to see your arrogant faggot face. At close rang[e] at your house."

"You failed in your duty and now you must pay for your actions."

1. This email also included a threat of similar retribution against counsel who had acted for the plaintiffs.

1. The third email was sent to the judge's associate by the applicant on the morning of Saturday 28 April 2012. Aside from profanities and criticism of the judge and the judgment in similarly derogatory terms as before, it included:

"Just to let you know I will not disappear. Not until you die. Your [sic] not going to keep doing this to not only me but others."

"Nice house you have maggot. Im [sic] glad you won't get to enjoy it much longer. What goes around comes around. You fuck peoples lives - they fuck yours, maggot."

1. Statements made by the judge and his associate after receipt of the 14 April email were tendered before Bellew J. (This is relevant to a ground of appeal about the harm caused by the offence.) The statement by the judge included that he had been informed of the first email to his associate and of the email to the police. When he saw the second email to his associate of 14 April he was "shocked and concerned". He elaborated:

The contents of the [14 April] email sent [by] Mr Linney to my associate have caused me extreme concern. It is not so much the personal abuse. Rather it is the threats. In particular the reference to Justice Opas and an insinuation that Mr Linney knows where I live, and he is proposing to come to my house, have been particularly upsetting. I have of course informed my family of the circumstances. I live with my wife and two youngest sons and from time to time one of my son's girlfriend stays and these events have worried everyone and unsettled us all. I am concerned to ensure that all that can be done should be done to protect them and myself from this threat. I am also concerned about Mr Bates [counsel for the plaintiffs] who is mentioned in the email and of course his clients. I am also aware that my associate is extremely stressed from these events and is concerned for the safety of myself and my family.

The style and content of the Linney email are very similar to the Linney letter referred to in my judgment. My concerns about my safety and my family's safety are heightened by the evidence in the trial in that Mr Linney continued to harass the plaintiffs, even after they had moved away. He found out where they had moved to and continued to harass them and made at least one harassing phone call to them.

In my view based on my observations of Mr Linney during the trial he is only likely to desist from this sort of threatening behaviour if he is confronted by the police and is either charged or brought before the court.

1. The associate's statement contained a description of a similar response to the 14 April email. She described being "extremely shocked and upset" and said "this has been a most traumatic time". Her response was informed by her experience of the applicant during the trial: "Mr Linney presented as very aggressive and very vocal in the court room and I was never comfortable staying in the court after Judge had left".

1. The applicant was arrested in Queensland on 4 May 2012.

The proceedings on sentence

1. The applicant pleaded guilty in Central Local Court on 26 June 2012 and was committed to the District Court for sentence. Sentence proceedings commenced before his Honour Judge King SC on 30 August 2012 and effectively concluded with judgment being reserved. However, at some stage shortly thereafter a view was reached that because of the identity of the victim it was inappropriate that a judge of the District Court sentence the applicant.

1. The Chief Justice gave his concurrence to the proceedings being transferred to the Supreme Court. In the light of the history of the proceedings, Bellew J was at pains to bring about a resolution expeditiously. There was some slight delay caused by a need to obtain a further psychiatric report but ultimately his Honour received evidence and submissions on 10 December and passed sentence on 14 December 2012.

The applicant's evidence

1. The applicant gave evidence before King DCJ and a transcript of it was provided to Bellew J.

1. He said that he and his family moved from Emerald Beach to Dayboro, a little north-west of Brisbane, in 2007. In 2012, he was working in a mine near Mackay. He would spend 10 days a fortnight there, working for 4 days, having 2 days off but remaining there, then working another 4 days before returning home for the balance of the fortnight. He took a laptop computer with him to Mackay so that he could keep in touch with his family via Skype. On his days off he would sit in his donga (a prefabricated modular home often used in mining villages) "stewing over what we had been subjected to" or "fuming". The result of the proceedings was financially disastrous for the applicant and his family and he had been made bankrupt.

1. The applicant's evidence was that he had no intention of carrying out the threats made in the emails. He did not know where the judge, or counsel for the plaintiffs, lived. He said he regretted sending the emails and described them as "brainless". He appreciated that they would have caused concern but added, "it's all through just sheer frustration in my head of what has progressed in the last seven years". In response to leading questions from his counsel he indicated that he was apologetic towards the judge and his associate and was willing to apologise to the plaintiffs' counsel.

1. After a series of questions in cross-examination, the applicant eventually, albeit reluctantly, said that the reference to "Judge Opas" reflected an intention to convey to the judge a threat to his life. He said he appreciated the emotional response the judge would have experienced but then added, "I just thought he needed to understand how he destroyed me".

1. The applicant was asked about the threat in the 14 April: "Maybe you should start digging your own hole. You will rot in hell much quicker and earlier than you anticipate". He explained, "I wanted him to feel how I had been feeling".

1. It is abundantly clear from the applicant's evidence overall that he still harboured feelings of having suffered a grave injustice. It is also clear that not only did he "have a grudge against" the plaintiffs but he also felt wronged by the judge: for example, "he was totally disrespectful to me. I wanted to show him how I truly felt in what had happened to us".

The applicant's account to others

1. The applicant told the author of the Pre Sentence Report that after the judgment had been delivered "he was angry and frustrated at the judicial system, claiming he was not afforded a fair hearing. He stated that it was this anger that lead to the commission of the offence". It was the author's opinion that the applicant "failed to accept the gravity of his actions".

1. Dr Scott Clark, forensic psychiatrist, reported that the applicant did not feel that he was treated fairly by the judge; the plaintiffs' lawyer was corrupt; and that he intended to seek further legal advice and wished to prosecute the judge, the police, and his neighbours. He wanted a retrial. But the applicant had also described the emails as "stupid and impulsive" and said that he had no intention of hurting anyone.

1. Bellew J referred to the evidence of the applicant's partner, Ms Tanya Morris. She referred to him having suffered a nervous breakdown in 2009 as a result of the litigation and the financial cost. She subsequently observed him to suffer from stress, sleepless nights and depression. He was taking anti-depressant medication but he had managed to stop drinking alcohol. She observed him to be still suffering from depression at the time the judgment was delivered. She said "the reality of losing the case, the family home to bankruptcy and some possessions was taking a toll on him".

Assessment of the seriousness of the offending

1. Bellew J observed (at [31]) that it was inevitable that an unsuccessful litigant will be affected in some way by the adverse outcome and would, at the very least, be disappointed. He also noted that it is unfortunately the case that an adverse outcome may be to the financial detriment to the unsuccessful party. But, his Honour continued:

[32] Whilst these circumstances, and those referred to by Counsel as forming the background of the offending in the present case, might go some way to explaining the context in which such offending occurred, under no circumstances can they excuse such offending, much less justify it. No amount of disappointment, no amount of frustration with the judicial process, and no financial consequence however significant, could ever excuse or justify conduct of the kind in which the offender engaged in this case.

1. In response to statements in testimonials by Ms Morris and another person to the effect that sending the emails was the applicant's way of "venting", his Honour said (at [34]) that this was to completely ignore the vile, contemptible and confronting terms in which the emails were expressed.

1. His Honour accepted (at [35]) a submission that the offending was not planned but also did not regard it as spontaneous, having regard to it involving three emails sent over a period of some weeks.

1. His Honour accepted (at [37]) that the terms of the emails would have left the recipient in little doubt that the threats were genuine. But he concluded (at [38]) that he could not be satisfied one way or the other as to whether the offender intended to carry out the threats; the evidence did not allow him to reach a definitive conclusion on this topic.

1. His Honour found it "unsurprising" that the stark terms of the threats caused the judge to immediately fear for the safety of himself and his family. He concluded (and this is relevant to ground 2 of the proposed appeal) (at [40]):

Irrespective of whether the offender did not intend to act upon the threats, the emotional harm to his Honour consequent upon such threats being made was clearly substantial. That is an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act [1999].

1. It was submitted on behalf of the applicant that at the time of the offending he lacked an appreciation of the gravity of his conduct. After a brief review of the evidence relied upon in support of that submission his Honour rejected it (at [44] and [46]):

What the offender did, in blunt terms, was threaten a judicial officer with death. He did so in terms that were specific, stark and chilling. In my view, even when full regard is had to the offender's psychiatric issues ... it is inconceivable that he lacked an appreciation of the seriousness of his conduct.

...

It is clear that in sending the emails, and quite apart from their terms, the offender intended to convey, to Judge Johnstone, a threat to his life. He intended that Judge Johnstone would interpret what had been written in that way. I reject the submission that in circumstances where the offender had that intention, he was not aware of the seriousness of what he was doing. I am satisfied that it was obvious to the offender at the time that such conduct was of the utmost seriousness.

1. Similarly, his Honour viewed claims by the applicant to the author of the Pre Sentence Report and to Dr Clark that his offending was "stupid" or "stupid and impulsive" as indicating that he failed to fully and properly acknowledge the seriousness of his actions ([47]-[49]).

1. His Honour noted (at [51]) that the offending was not isolated but extended over a period of time; it was carried out in the full knowledge by the applicant of the seriousness of his actions; and there was an intention to convey to the judge that his life was under threat. He concluded (at [53]) that the offence "falls above the mid-range" of objective seriousness. (More will be said about this later in the context of one of the grounds of appeal.)

Personal circumstances of the applicant and subjective mitigating features

1. His Honour noted a number of features of the evidence concerning the personal circumstances of the offender. It is not contended that his Honour overlooked or was mistaken about anything in this respect.

1. The applicant was 46 years of age. He had been in a relationship with Ms Morris for the past 15 years and they had three children aged between 7 and 11. The youngest and eldest of children had certain medical issues. Ms Morris had to defer her nursing diploma studies in order to care for the children.

1. The judge noted the applicant's employment history; in the three years leading up to the offence he worked as a boilermaker in the mining industry. He was described as having a good work history.

1. A particular matter to which his Honour had regard was the fact that the applicant's family lived in Queensland. Because of geographical and financial reasons, Ms Morris had been unable to visit the applicant since he had been taken into custody in May 2012. It was submitted that this was a mitigating factor in that it rendered the fact of custody more onerous for the applicant. This submission was accepted and the matter was taken into account in the applicant's favour.

1. An allowance of 25 per cent was made for the applicant's early plea of guilty in the Local Court in recognition of its utilitarian value.

1. His Honour accepted that the applicant did not have a significant record of criminal convictions and that he was of prior good character, although he noted that some of the testimonial evidence in support of the latter proposition was qualified by the authors tending to diminish the seriousness of the offending.

1. His Honour declined to accept a submission that the applicant had good prospects of rehabilitation and was unlikely to re-offend. This is the subject of ground four of the proposed appeal and will be discussed more fully in that context.

1. His Honour rejected a submission that the applicant was genuinely remorseful. His claims in this respect were regarded as no more than expressions of regret. The applicant raises no complaint about this.

1. The offender's mental state was the final subjective matter discussed by his Honour in his sentencing remarks. He said, "the offender's mental state is a matter of some significance in determining the appropriate sentence" (at [88]).

1. The applicant had previously been prescribed anti-depressant medication during the course of the civil litigation with his former neighbour. He had been placed on this type of medication again after coming into custody.

1. Dr Clark's second report included an opinion that the applicant had "personality problems of a paranoid nature, and he appears to be highly vulnerable to loss and abandonment". Continuation of the applicant's abstention from drug or alcohol use was recommended as they "could exacerbate personality problems as well as depression". His Honour also quoted from Dr Clark's second report:

Mr Linney will benefit from psychiatric review and psychotherapy to assist him to deal constructively with his problems and manage his anger and frustration. He remains on antidepressant medications and, following further contact with a psychiatrist, the use of low-dose antipsychotic medication may be recommended.

1. Despite there being no submission made on the applicant's behalf, his Honour was prepared to accept (at [94]) that considerations of general and specific deterrence, whilst important in such a case, were of "less significance than might otherwise have been the case had the applicant's mental state been different".

Assessment of sentence

1. Bellew J concluded that no sentence other than one of imprisonment was appropriate: s 5 of the Crimes (Sentencing Procedure) Act.

1. He concluded that such a sentence should exceed two years and so was compelled, for that reason alone, to reject a submission that the sentence should be suspended: s 12 of the same Act. He had regard to the principle that a sentence must not reflect undue weight to an offender's subjective circumstances and result in something that is not reasonably proportionate to the gravity of the offence, citing R v Dodd (1991) 57 A Crim R 349 at 354 and R v GWM [2012] NSWCCA 240 at [136] per Johnson J.

1. His Honour did, however, find that there were special circumstances which warranted a reduction of the proportion of the sentence represented by the non-parole period. These comprised the applicant's "psychological state and the need for him to have an extended period of release which is subject to medical and other supervision" (at [102]).

1. In the end, his Honour reiterated the seriousness of the applicant's offence (at [103]-[105]). He remarked that an offence against s 326(1)(b) is, by its nature, serious; it strikes at the heart of the administration of justice. He said that to do other than impose stern punishment would fail to have proper regard to the authority of the courts which, in turn, would undermine the administration of justice. For that reason such conduct should be appropriately denounced in order that the authority of the courts is vindicated rather than undermined. The applicant raised no criticism of those remarks in this Court.

Grounds of appeal

1. Four grounds of appeal were relied upon. The first involves a contention that the sentence is manifestly excessive and in relation to it the applicant relies upon submissions made in support of the other grounds. For that reason I will deal with that ground last.

Ground 2 The sentencing judge erred in treating as an aggravating factor, in the absence of any victim impact statement or other sufficient evidence, that the emotional harm, to the victim of the offence, was substantial.

1. The applicant submitted that "there was no victim impact statement from Judge Johnstone in evidence at the sentence proceedings". In order for emotional harm suffered by a victim of an offence to amount to an aggravating factor, it has to be both "substantial" and more than would be expected from an offence of the kind committed.

1. These submissions were made with reference to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act which provides that it is an aggravating factor if "the injury, emotional harm, loss or damage caused by the offence was substantial".

1. Reliance was also placed upon King v R [2010] NSWCCA 33 in support of a contention that any harm caused in this case was not beyond what would be expected from an offence of its kind. A discussion of that proposition appears in my judgment in King v R, with whom Grove and Simpson JJ agreed, at [34]-[35]. I referred to various cases in this Court where it had been found that a sentencing judge had erred by taking into account as an aggravating factor a matter that is an inherent characteristic of an offence, or a particular class of offence. I also referred to the recognition that a factual matter that may be an element of an offence, or an inherent characteristic of it, may be present to a greater degree than is necessary to establish the element, or that is normally a characteristic of the offence, and so may legitimately be taken into account as an aggravating factor.

1. At the hearing of the application, counsel for the applicant clarified that the point sought to be made under this ground was that it was not so much the absence of evidence of harm itself, but that there was an absence of evidence that it was "substantial". It was submitted that the statement of Johnstone DCJ only established that he was "extremely concerned" and "extremely upset" and that this was insufficient to establish harm of a substantial kind. Here, unlike other cases where substantial emotional harm has been found, there was no evidence of the victim having to seek out counselling or psychiatric assistance.

1. There are three responses to made in dealing with this ground. First, emotional harm is not an inherent characteristic of the offence in s 326. The offence involves threatening to do or cause, or actually doing or causing, injury or detriment. The injury or detriment can be at any level of gravity. Threatening to let down the tyres on a judicial officer's car would be a "detriment" caught by the section but it would not necessarily give rise to emotional harm. And as Ms Wilson, senior counsel for the Crown, submitted, it is at least theoretically possible for a threat to cause injury or detriment to be punishable notwithstanding it was not even communicated to the putative victim.

1. Second, whether there was substantial emotional harm caused by the applicant's offending conduct is a question of fact. I am not persuaded that it was not open to Bellew J to find, on the material contained in the judge's statement, that the aggravating factor was established beyond reasonable doubt. In fact, I think it would be perfectly understandable that even the most emotionally robust judge might be terrified by explicit death threats from a disgruntled and volatile litigant, particularly when they are accompanied by statements indicating the litigant knew where the judge lived with his wife and two of his children.

1. Third, the aggravating factor in s 21A(2)(g) does not require there to be long term psychological damage for it to be established. There is no requirement for there to be evidence of a victim requiring counselling or psychiatric care.

1. Ground 2 should be rejected.

Ground 3 The sentencing judge erred in failing to take into account or did not give sufficient weight to relevant considerations which ought to have mitigated the otherwise appropriate penalty.

1. Four "relevant considerations" were identified in the expression of the ground. They were (a) that any term of imprisonment would be more burdensome because his family lived in Queensland and had been, and would be, unable to visit; (b) that the applicant underwent sentence proceedings in the District Court before they were aborted and the case transferred to the Supreme Court; (c) that the applicant did not have a significant record of previous convictions; and (d) that his mental state was such that general and specific deterrence were of less importance than they otherwise would be.

1. The contention that the judge "failed to take into account" these matters was abandoned; it being accepted that his Honour considered each of them. The first, third and fourth matters were each accepted by his Honour to be mitigating factors. As to the second matter, his Honour said (at [60]) that he had regard to the delay in the sentence proceedings by virtue of the transfer from one court to another. But he considered it was something that was "deserving of very little weight" on account of there being an "absence of evidence of its precise effect upon the offender".

1. Counsel for the applicant contended that the point sought to be made was that the sentence was manifestly excessive having regard to these, and other, matters. It was effectively conceded on the hearing of the application that this ground on its own could not succeed. Such a concession was appropriate when one recalls the often cited statement of Spigelman CJ in R v Baker [2000] NSWCCA 85 at [111]:

Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined.

Ground 4 The sentencing judge erred in declining to find the Applicant was unlikely to re-offend and has good prospects of rehabilitation.

1. Bellew J discussed matters relevant to the applicant's prospects of re-offending and of rehabilitation at length (at [71]-[79]). He considered that there was "some force" in the submission by the applicant's counsel that certain matters supported favourable findings as to these mitigating factors.

1. However, his Honour then referred to evidence that indicated that the applicant had not "moved on with his life", contrary to the evidence of his wife. He had told Dr Clark that he wanted to "prosecute" Judge Johnstone and the author of the Pre Sentence Report noted that he continued to question the judge's integrity. There was also the statement the applicant made to the latter to the effect that he proposed to cease his medication regime when released from custody. The applicant had said something to the contrary in his evidence before King DCJ but Bellew J remained concerned nonetheless. He concluded:

[79] In my view, the offender's prospects of rehabilitation are largely dependent upon him abandoning the intentions he originally expressed to Dr Clark about pursuing various matters associated with the earlier proceedings, adhering strictly to any medication regime which might be put in place for him and undergoing psychiatric review. On the evidence before me, significant issues arise at least as to the first and second of those matters. In these circumstances, I am not able to come to any positive conclusion about the offender's prospects of rehabilitation or his likelihood of re-offending.

1. Counsel for the applicant submitted that Bellew J "did not have regard to the position that the offence was committed by a person at the end of his tether and that when in that position the Applicant committed the offence by sending the threatening emails. Those matters were very unlikely to be repeated."

1. It was also contended that the judge had failed to take into account, in this context, that the applicant was of prior good character, had no significant record of convictions, had a supportive family, and had employment.

1. The judge was not persuaded that the applicant was genuinely remorseful. He said, in that context (at [86]), that what the applicant had said was "little more than an expression of regret". In this Court it was submitted that "regret" was "very relevant" to the question of the likelihood of re-offending and prospects of rehabilitation in the context of a 46-year-old man of good character who had been in custody for the first time for more than seven months at the time of sentence.

1. This ground, like the second, challenges findings of fact by the sentencing judge. I readily accept that it would have been open to his Honour to have found in the applicant's favour in respect of these two mitigating factors (although personally I consider that doing so would have been generous). But the important point is that, the evidence was not all one way and such a conclusion was not the only one available to be drawn.

1. It is implicit in the remarks on sentence that his Honour was aware that the applicant had offended when "at the end of his tether". But there was little to provide comfort that he would not offend if he found himself again in such a state.

1. His Honour only referred to statements by the applicant contained in the psychiatric and Pre Sentence reports. He could also have referred to some things the applicant said in his evidence before King DCJ. While professing to be apologetic to the judge, the applicant also conveyed that he remained critical of the judge and disgruntled over his judgment.

1. The applicant bore the onus of establishing these mitigating factors on the balance of probabilities. In my view, it was well open to Bellew J to conclude that they had not been established.

Ground 1 The sentence is manifestly excessive

1. To succeed on this ground the applicant must establish that the sentence imposed was "unreasonable or plainly unjust": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.

1. Bellew J accepted a number of matters in the applicant's favour. In summary, they were that he had no significant record of previous convictions; he was of prior good character; he had overcome alcohol and substance addictions; he would serve his sentence in more onerous circumstances because his family, who were supportive of him, lived in Queensland; and that general and specific deterrence were less important than they otherwise would be on account of his mental condition.

1. An allowance of 25 per cent was made for the utilitarian value of the applicant's plea of guilty.

1. Is the starting point of 5 years unreasonable or plainly unjust when considered against the statutory guidepost of a maximum penalty of 10 years when regard is had to the various matters the judge took into account in the applicant's favour?

1. It was conveyed to counsel before the hearing of the application that the Court was interested to hear submissions as to the following passage of the sentencing remarks in the light of the range of conduct encompassed by s 326(1):

[52] There is necessarily a wide range of threatening behaviour encompassed by the section which creates the offence. Towards the higher end of the scale such behaviour might include, for example, a face to face threat made with the use of a weapon. At the lower end of the scale, the behaviour might manifest itself in a spontaneous threat of harm, as opposed to death.

[53] The objective seriousness of the present offending falls somewhere between those two extremes. In my view, taking into account all of the matters to which I have referred, it falls above the mid-range. (Emphasis added)

1. Counsel for the applicant had submitted that his Honour should find that the objective seriousness of the offence was "mid-range, if not a little above". The Crown Prosecutor (who did not appear in this Court) responded by submitted that "it would be in the middle of the mid-range, in the middle from the mid-range to the high range". I confess to be confused about what that meant.

1. It is appropriate to look at the terms of s 326(1). It provides:

(1) A person who threatens to do or cause, or who does or causes, any injury or detriment to any person on account of anything lawfully done by a person:

(a) as a witness or juror in any judicial proceeding, or

(b) as a judicial officer, or

(c) as a public justice official in or in connection with any judicial proceeding, is liable to imprisonment for 10 years.

1. Counsel for the applicant submitted in this Court that his Honour had erroneously confined his consideration of the criminality dealt with by the provision to threatening behaviour and had omitted to consider that that an offence will be more serious if it involves actually doing or causing injury or detriment. Accordingly, the assessment of objective seriousness should have yielded a conclusion that it was below mid-range. He accepted that his submission at first instance had been based upon the same erroneous confinement.

1. It was submitted that, in addition to the various favourable subjective matters, this aspect provided further support for the proposition that the sentence was manifestly excessive.

1. The Crown's response was to submit that it should not be concluded that his Honour overlooked the fact that the section was concerned with both threatening and doing or causing injury or detriment. His Honour's assessment set out above involved a consideration of comparable conduct caught by the section, namely behaviour that was threatening. Senior counsel accepted as a general proposition that, ordinarily, threatening harm would be less serious than causing harm, but submitted that the range of conduct that could amount to the offence was wide so this was not always the case.

1. Threats of harm might be made but with the offender obviously having no ability to carry them out. Injury or detriment might actually be caused but could be quite superficial in nature. At the other end of the scale, there would be a practical limit on the extent of injury that might be caused before the offender would be prosecuted for a more serious offence.

1. So, the Crown submitted that the present case was correctly characterised by the sentencing judge in terms of its objective seriousness. There were threats of death; they were not spontaneous and were repeated; and they were made in circumstances where the recipient was given real cause to fear that they could be carried out. It was submitted that as far as threats to a judicial officer might go, these were "at the very highest end of the range".

1. The Crown submissions should be accepted. I do not accept that his Honour inadvertently overlooked the fact that the offence can involve doing or causing injury or detriment as well as threatening to do so.

1. I emphasised the word "threatening" in the passage set out above from paragraph 52 of the sentencing remarks to highlight that his Honour was considering "threatening behaviour encompassed by the section". The submissions for the applicant would have force if his Honour had simply referred to "behaviour encompassed by the section" and then proceeded to give examples at either extreme of threatening conduct.

1. Once it is accepted that the characterisation of the seriousness of the offence was not attended by error and was one that was open to his Honour to make, as I believe it was, the conclusion must be reached that the sentence is not manifestly excessive. All of the favourable subjective matters identified in the applicant's submissions were considered and taken into account. The applicant had the benefit of the allowance for his plea of guilty and the further allowance of a reduced non-parole period following his Honour's finding of special circumstances.

1. 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.

Orders

1. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal against sentence dismissed.

1. ADAMSON J: I agree with R A Hulme J.

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Decision last updated: 05 November 2013