R v Jaques

[2002] NSWCCA 444

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     Regina v JAQUES [2002]  NSWCCA 444

FILE NUMBER(S):
60061/02

HEARING DATE(S):    11/11/02

JUDGMENT DATE:      11/11/2002

PARTIES:
Regina
Shane Horace Jaques

JUDGMENT OF:        Wood CJ at CL Dowd J Bell J   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     01/71/0106

LOWER COURT JUDICIAL OFFICER:   Woods DCJ

COUNSEL:
E W Kelly and N Nelson (Applicant)
W G Dawe QC (Crown)

SOLICITORS:
L. David Lock (Applicant)
S E O'Connor (Crown)

CATCHWORDS:
Sentence appeal - conviction of threatening reprisal against judicial officer - undue weight to previous record - circumstances of offence not severe.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted; appeal allowed; sentenced to 12 months periodic detention commencing from acceptance.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60061/02

WOOD CJ at CL
DOWD J
BELL J

Monday 11 November 2002

REGINA  v SHANE HORACE JACQUES 

Judgment

1. WOOD CJ AT CL:  Subject to the procedural matters being satisfactorily resolved, I agree with the observations of Dowd J and the sentence imposed.

1. DOWD J: This is an application for leave to appeal against a sentence imposed by Woods AJ on the applicant after a finding of guilty by a jury to a defence of threatening reprisal against a judicial officer contrary to s326(1)(b) of the Crimes Act 1900 (“the Act”).  A sentence of two years was imposed commencing on 13 February 2002, expiring on 12 February 2004, with a non-parole period of one year to commence on that same date.  Bail had been granted on that day until the day of sentencing and has been granted pending this appeal.

   Facts

2. On 20 July 2001, the applicant attended the court office at Tumut to complete an application form in respect of a matter before the court.  The officer attending him made reference to the applicant having to attend court at Wagga.  The applicant then made comments about the Local Court magistrate, Mr Andrew O’Donaghoe, who had committed the applicant for trial on a charge of malicious wounding.  The words used about Mr O’Donaghoe were, “If I go to gaol for this, then when I get out I’m going to kill him.”  He was then arrested and charged.  In his trial the applicant denied the offence.

   Subjective Factors

3. The prisoner’s criminal history shows a variety of offences that include assault and malicious damage.  There were serious driving offences with a charge of malicious damage to property, and he has served short terms of imprisonment and periodic detention, and a community service order.  He is now twenty-eight and has resided with a partner for seven years.  They have three children and we have been informed that another is on the way.

   Grounds of Appeal

4. The learned sentencing judge in sentencing spoke of the seriousness of the offence.  The offence 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. 

5. The basis of the appeal is firstly, that the sentence imposed was manifestly excessive, and it is submitted that his Honour the sentencing judge placed too much weight on the fact of a plea of not guilty and his past criminal convictions.  It is further submitted that on a scale of seriousness with respect to the threat it falls towards the lower end, that it was not made clandestinely, it was not made to the judicial officer as in court, and it is put on behalf of the applicant that it was said in a non-aggressive fashion.  However, the finding of the jury is that it was, in fact, said.

6. The second ground of appeal is based on the failure by the sentencing judge, having determined that a full time custodial sentence is to be imposed, to determine whether to suspend that sentence, and the applicant relies on the use of s12A of the Crimes (Sentencing Procedure) Act 1999 as applied in R v Blackman [2001] NSWCCA at 121, and Dinsdale v R (2000) 175 ALR at 315.

7. It is put by the Crown that, although there has been reference to the statistics of the Judicial Commission on a very small sample, there is very little assistance.  However, it must be noted that that sample shows custodial sentences have not been imposed for the offence.  It is also put by the Crown that the sentence imposed was well within the proper exercise of his Honour’s sentencing discretion.

8. In relation to ground two, the Crown puts it that there can be no doubt that the jury was satisfied that what the applicant said was to be accepted as a real threat to the magistrate, and that his Honour the sentencing judge, in his remarks on sentence, made it clear that he regarded it as a very serious matter.  His Honour said at page 2:

   “The offence is a threat to the status in respect of the court system and the judiciary.  It should be made clear that persons who threaten the efficacy and work of the judicial system are attacking a fundamental feature of our society.”

9. His Honour at page 4 commented that the applicant, had shown no remorse for his attitude and no co-operation.  Then his Honour went on to make the following statement: 

   “There comes a time when a deterrent sentence is necessary, and a sentence that makes it clear to the community at large that it is not open to people to undermine and threaten a fundamental arm of our society.  This is not a matter of the courts being personally vindictive when they are threatened, it is a matter that you co-operate with the courts, the system, and we will co-operate with you.  You offend and we must apply the law.”

10. I consider that his Honour in those remarks has taken into account a matter of general punishment, that he has taken into account matters going beyond the particular offence itself, and has taken into account the applicant’s previous record as indicative of his general attitude.

11. His Honour is correct that there is a need for deterrence for this sort of offence.  However, in the circumstances of an offence which was not made in the face of the court, which was done in an office where there were other people present, and although it appears it was uttered in anger, it was not such as to clearly indicate an intention to commit the offence that was threatened. 

12. I consider that his Honour has erred in giving too much weight, in the circumstances of the utterance of these remarks, to the severity of what was uttered and has taken into account the applicant’s previous record, and in the circumstances, the penalty is manifestly excessive. 

13. It is not, therefore, necessary to decide the second ground, but I would say in passing that it is not necessary every time a sentence is imposed for a court to laboriously go through all the alternative sentences. His Honour clearly understood that s5 of the Crimes (Sentencing Procedure) Act requires an assessment of other penalties, and it appears that his Honour has done so.

14. In the circumstances, therefore, of the applicant having been assessed as suitable for periodic detention, there is a necessity for the availability of a place to be ascertained.

15. I consider that the error by his Honour is such that leave should be granted and the appeal be allowed, and that in lieu of the sentence, the applicant be sentenced to a period of twelve months periodic detention commencing from his being accepted within a place, if there is one available, within seven days from today.

16. BELL J:  I also agree.

**********

LAST UPDATED:               18/02/2003