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

GLEESON JA: I agree with R A Hulme J.

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.

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

Facts

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

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.

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.

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Linney v R

Details

AGLC: Linney v The Queen [2013] NSWCCA 251
Case: [2013] NSWCCA 251
Decision Date: 05 November 2013

CaseChat Overview and Summary

Linney was convicted of threatening to kill a judicial officer. He appealed against the severity of his sentence. The High Court of Australia heard the appeal. The legal issues before the court were whether the sentencing judge failed to consider the subjective features of the offence and whether the sentence was appropriate in light of the conduct.

The court found that the sentencing judge had appropriately considered the subjective features of the offence. The court emphasised that the offence of threatening a judicial officer encompasses a wide range of conduct and that a stern sentence was appropriate. The court noted that the threats made by Linney were of a serious nature, involving threats of death, and that the sentencing judge had given due consideration to these factors. The court concluded that the sentence imposed was not excessive and was commensurate with the seriousness of the offence. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the sentencing judge was upheld. The court's decision reinforces the importance of considering the gravity of threats made against judicial officers and the need for appropriate sentencing in such cases.

Orders