Misra v The Queen

[2016] NSWDC 8

District Court

New South Wales

Medium Neutral Citation:	Misra v R [2016] NSWDC 8
Decision date:	08 February 2016
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	The appeals against sentence are dismissed with two exceptions. In respect of the offences of resisting an officer in the execution of his duty and assaulting the police officer, the sentences are reduced from 3 months imprisonment to 2 months imprisonment, commencing on 4 December 2015 and expiring 2 February 2016.
Catchwords:	CRIMINAL LAW – appeals against gaol sentences – history of stalking and contravening apprehended violence orders – one earlier offence involving actual personal violence on record – serious contravention of apprehended violence order – violent threats via email and phone – resisting arrest – assault police – breach of good behaviour bonds – difficult circumstances of offender no justification for offending – gaol term warranted
Legislation Cited:	Crimes Act 1900 (NSW), ss 58, 60 Crimes (Appeal Review) Act 2001 (NSW), s 20 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) Criminal Code Act 1995 (Cth), s 474.15(2)
Category:	Principal judgment
Parties:	Ashwani Kumar Misra (Appellant) Regina (Crown) (Respondent)
Representation:	Ashwani Kumar Misra (self-represented) (Appellant)   Solicitors: R Buttini, Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2014/256630; 2014/312397; 2015/007768; 2015/027015; 2015/304225; 2015/335328
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 4 December 2015 Before: B Williams LCM File Number(s): 2014/256630; 2014/312397; 2015/007768; 2015/027015; 2015/304225; 2015/335328

Judgment

1. Ashwani Kumar Misra has appealed from gaol sentences imposed on him by a Local Court magistrate. In late 2014 he committed a number of offences contravening apprehended violence orders in favour of his former solicitor. He was given a good behaviour bond for those crimes. Then just before Christmas 2014 he committed an offence of stalking or intimidating another solicitor. In fact that behaviour ranged over some months. Again, he was given a good behaviour bond. In stalking or intimidating the other solicitor, of course, he was breaching the good behaviour bond he had earlier received. Despite that, he still received a good behaviour bond.

2. On 16 October 2015 and 4 November 2015 he committed a series of additional offences. In October he was making a nuisance of himself at a public place and the police arrived. They wanted to arrest him. He was physically resisting arrest and swung his arm at a police officer and hailed a torrent of abuse at the police. This is the first time he committed offences of actual personal violence, apart from a common assault committed in 2014. The magistrate sentenced Mr Misra to 3 months imprisonment for those offences.

3. Mr Misra’s criminal record did not help at that stage, but I think that a prison sentence of 3 months was a little harsh, given that the behaviour was a relatively minor example of resisting arrest and assaulting police. They are crimes which the courts take seriously. That is why he got a gaol sentence. I myself would impose sentences of two months for those, which would have now expired.

4. However, the sentence which is still keeping him in gaol is an 11 month sentence that he received for contravening an apprehended violence order. One of his former solicitors had the benefit of an apprehended violence order. What he had been doing in the past with his solicitors was sending them emails containing violent threats. The threats were obviously very frightening.

5. Despite being dealt with leniently in the past for that kind of behaviour, on 5 November 2015 he left a message for his former solicitor introducing himself and “passing on a message to the whole staff." He said that "what we will do is we will bomb the place." He made a reference to "dynamite and the long corridor that leads to the front desk." He said "that is a good enough place to blow the whole damn place into a tomb." He repeated that "this this is not a joke, we are going to burn the bloody place down." He said he would do it before Christmas. He used abusive language towards the solicitor and said that "we will reign terror on him."

6. In making those threats Ashwani Misra committed a crime of using a carriage service to threaten serious harm. That is a Commonwealth offence against s 474.15(2) of the Criminal Code Act 1995 (Cth).

7. In making the phone call he breached the apprehended violence order which the solicitor was entitled to feel protected by. This was an offence against s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Parliament has fixed a maximum of 2 years imprisonment for that offence. The magistrate imposed a sentence of 11 months with a non-parole period of 7 months. The non-parole period will expire 3 July this year.

8. For using the carriage service the magistrate fixed a sentence of 7 months. It expires at the same time.

9. Mr Masri is unrepresented. He is in custody. He explained to me from the dock that he was acting out of character over that particular period of time. His mother had died. He ceased taking medication and he found himself in a vicious cycle where he would use abuse, be arrested and then return to the same offending behaviour. In addition, he has a serious drinking problem. His marriage fell apart and he found himself in a repeating pattern of behaviour.

10. In the dock he explained that his solicitors had not been responsive to his complaints. I pointed out to him - which I repeat - that there is a difference between complaining about a solicitor's conduct (and I am not suggesting there is any basis for complaint, I do not know one way or the other) and committing serious crimes.

11. The two crimes he committed in leaving the voice mail are regarded seriously. It causes a good deal of stress and anxiety in the lives of people who are carrying on their ordinary working days, some of them with families, to receive violent threats such as those delivered by Mr Misra. If it had been a one-off incident a court would be inclined to be more lenient. The courts, in fact, had been very lenient to Mr Misra. He regularly received good behaviour bonds. It is only when he finally assaulted the police officers and left this very violent message using a voicemail facility that the courts sent him to gaol.

12. I think that the sentence was justified, although it arose from very difficult personal circumstances that Mr Misra found himself in. It does not justify the serious crimes which he committed. People are entitled to feel safe in their working and domestic environments. The fact that he has a criminal record for just that behaviour means that the courts must take it more seriously. Not only is the criminal record a factor which deprives him of any leniency, in my opinion, it is an aggravating factor in this case.

13. In addition, in committing the crime he was in breach of good behaviour bonds. That is a further aggravating factor.    

14. I hope that Mr Misra, when he is released, will use his balance of parole - from 3 July this year to 3 November this year - to sort out the priorities in his life. He explained to me they are reconnecting with his daughters and getting his career back on track and getting his life into a more stable condition. But in the meantime, I myself cannot see that it is appropriate to release him back into the community earlier than the date fixed by the magistrate for the reasons that I have given. However, I do propose to reduce the sentences in respect of the two matters concerning the police.

15. The formal orders which I make are these. Under s 20 of the Crimes (Appeal Review) Act 2001 (NSW), I determine these appeals against sentence by dismissing all of the appeals with two exceptions. In respect of the offence of resisting an officer in the execution of his duty against s 58 of the Crimes Act 1900 (NSW), I reduce the sentence from 3 months to 2 months commencing on 4 December 2015 and expiring 3 February 2016. In respect of the offence of assaulting the police officer in the execution of his duty against s 60 (1) of the Crimes Act, I reduce the sentence from 3 months imprisonment to 2 months imprisonment commencing on 4 December 2015 and expiring 2 February 2016.

HIS HONOUR:    Mr Misra, you have lost your appeal. That is the opportunity that you have got to take to get your life back into order in the way that it sounds that you want to do. For the reasons I have given, I am not prepared to release you. I have reduced the two sentences. They were serious, but I have reduced the sentence. But your overall sentence expires on 6 November, 2016 and your non-parole period on 3 July, 2016, do you understand?

APPELLANT: But I came into custody on 14 November. That was 20 days.

HIS HONOUR: That is because the magistrate commenced the 11 month sentence on 4 December and the magistrate had reasons for doing that, because they were different victims - or at least a different separate crime. The magistrate did that for a reason.

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Decision last updated: 12 February 2016