R v Korat

[2021] NSWDC 29

District Court

New South Wales

Medium Neutral Citation:

R v Korat [2021] NSWDC 29

Hearing dates:

04 February 2021

Date of orders:

05 February 2021

Decision date:

05 February 2021

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Sentence of imprisonment of 2 years, the offender is to be released at the expiry of 12 months from the commencement of the sentence, namely 03 February 2022, conditionally upon him entering a recognizance in himself of an amount of $5,000, to be of good behaviour for 3 years

Catchwords:

CRIME — Federal offences

MEDIA AND COMMUNICATIONS — Telecommunications services — Offences — Threat by telephone

SENTENCING — Federal offenders — Relevant considerations

SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law

SENTENCING — Non-parole period — Power to refrain from specifying non-parole period — Federal offender dealt with by State court

SENTENCING — Penalties — Imprisonment

SENTENCING — Penalties — Recognisance

SENTENCING — Plea of guilty — Committal for sentence

SENTENCING — Relevant factors on sentence — General principles

SENTENCING — Relevant factors on sentence — Moral culpability

SENTENCING — Relevant factors on sentence — Objective seriousness

SENTENCING — Sentencing procedure — Agreed facts

SENTENCING — Sentencing procedure — Pre-sentence reports

SENTENCING — Sentencing procedure — Pre-sentence reports — Use of hearsay material

SENTENCING — Sentencing procedure — Pronouncement of sentence

SENTENCING — Sentencing procedure — Reasons for sentence

SENTENCING — Subjective considerations on sentence — Drug addiction

SENTENCING — Subjective considerations on sentence — Health issues

SENTENCING — Subjective considerations on sentence — Intoxication

Legislation Cited:

Crimes Act1914

Criminal Code Act 1995

MentalHealth Act 2007

Cases Cited:

Imbornone v R [2017] NSWCCA 144

Markarian v The Queen [2005] HCA 25

Muldrock v The Queen [2011] HCA 39

Munda v State of Western Australia [2013] HCA 38

R v Cooney (Unreported, QLD District Court, Bowskill QC DCJ, 27 February 2017)

R v Gambier [2009] QCA 138

R v Qutami [2001] NSWCCA 353

R v Rosario (Unreported, Western Australia District Court, Bowden DCJ, 22 March 2012)

R v Siddiq-Conlon (Unreported, NSW District Court, Hock DCJ, 23 November 2012)

Tepania v R [2018] NSWCCA 247

Veen v The Queen (No. 2) [1988] HCA 14

Western Australia R v Stewart (Unreported, Western Australia District Court, McCann DCJ, 03 May 2010)

Xiao v R [2018] NSWCCA 4

Category:

Sentence

Parties:

Regina (Crown)
Sanjay Kalubhai Korat (Offender)

Representation:

Rory Macken (CDPP)
Barbara Coorey (Solicitor for the Offender)

Director of Public Prosecutions (C’th) (Crown)
Winder Lawyers

File Number(s):

2019/00097825

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Sanjay Kalubhai Korat pleaded guilty in the Local Court from whence he was committed to the District Court for sentence upon one charge contrary to s 474.16 Criminal Code Act 1995 shortly stated as using a carriage service to make a hoax threat.

The Offence

2. The particulars of the charge are as follow:

“On about 26 March 2019 at Newcastle in the State of New South Wales, Sanjay Kalubhai Korat did use a carriage service, namely mobile phone number …545, to send communications with the intention of inducing a false belief that an explosive had been left on Singapore Airline flight SQ423 contrary to s 474.16 of the Criminal Code (Cth).”

3. The maximum penalty to which the offender is exposed for this offence is imprisonment for ten years.

Assessment of Moral Culpability

4. Being an offence contrary to Federal law there is no standard non‑parole period consideration to be brought to account. However, this case requires consideration of the extent to which it might be shown that the offender's moral culpability for his wrongdoing is mitigated by chronic alcoholism which afflicted him from before the occasion of this conduct.

5. In Tepania v R [2018] NSWCCA 247 Johnson J beginning at para [110] discussed the standard non‑parole period provisions and their legislative history and then continued at para [112] with the following:

"In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute).

Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: …"

6. His Honour went on to specify authority standing for those propositions and discuss the concept of moral culpability, and in para [113] referred to Veen v The Queen (No. 2) [1988] HCA 14 where it was observed "that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability." His Honour went on to discuss the principles enunciated in Muldrock v The Queen [2011] HCA 39 and Munda v State of Western Australia [2013] HCA 38 where the Court brought to bear the proposition that limited moral culpability may mean that retribution and denunciation did not require significant emphasis, and in circumstances where an offender was affected by an environment in which the abuse of alcohol is common that is a factor to be brought into account in assessing moral culpability to be balanced against the seriousness of his offending.

7. By way of general comment at this stage it could not be said on the material that I have that the offender was raised through his formative years in an environment where abuse of alcohol was common. I accept that he embarked upon the misuse of alcohol and it became a chronic difficulty for him but this was as a consequence of other challenges that he perceived and which he sought to manage with the misuse of that substance. Notwithstanding that he was so burdened, one must balance the seriousness of the offending upon which he engaged in this instance against those considerations when determining what the appropriate sentence ought to be in the process of intuitive synthesis required of the sentencing court as discussed in the High Court of Australia by McHugh J in Markarian v The Queen [2005] HCA 25.

8. This offence for reasons I shall articulate consistent with submissions by the Crown was serious criminal misconduct and without more, in my judgement, is to be seen at the mid-range of objective seriousness of such behaviour. It does not follow though upon an arithmetical application of that finding that a sentence of half the maximum penalty would be applied. The sentence to be imposed will be determined upon the synthesis to which I have referred bringing to bear all of the material that has been tendered in this matter.

The Proceedings

9. The history of the proceedings has been protracted in the District Court. According to my diary the matter was before me on 14 August 2020 when I was informed that although he was granted bail in respect of this matter he was held in custody at a correctional facility in respect to other matters. The parties had not at that point agreed upon the statement of facts upon which the proceedings were to continue and further work and preparation was required. Before me the offender confirmed that his plea of guilty in the Local Court had been entered and he adhered to that plea of guilty before me. The matter was adjourned to 24 September 2020 for the continuation of the proceedings. At that point the offender was on bail, granted to him in respect of the other matter, and was participating in long‑term rehabilitation at the Calvary Riverina Drug and Alcohol Facility in Wagga Wagga. He was not present at court and upon the defence application for an adjournment the matter was stood over to 4 December 2020 for the continuation of the hearing with the offender to appear on that occasion.

10. On 4 December 2020 I had recently undergone surgery. That rendered me incapacitated and unable to attend court and accordingly the matter was put before his Honour Judge Robison who adjourned the proceedings to 17 December 2020 for the allocation of a further hearing date convenient to the parties and my diary. On 16 December 2020 the matter came back before me. I vacated the hearing date 17 December 2020 and adjourned the proceedings to resume on a later occasion, namely 4 February 2021, yesterday. However, counsel in the matter was unavailable because she was appearing in a trial. The solicitor instructing counsel was unavailable for reasons not informed but Ms Coorey was with sufficient courage to accept responsibility for the matter, having only been asked to do so the night before, and came before me for the presentation of the case on behalf of the offender.

11. There was a hiatus as I perceived the matters in some of the material upon which the offender wished to rely, requiring consideration in my judgement in light of the decision made by him not to give evidence in the proceedings, leaving the Court with the sometimes challenging task of coming to a decision upon what is the appropriate sentence without the benefit of hearing the offender provide direct evidence of the various assumptions made by authors of reports, prepared relying upon representations made to them by the offender. Those representations were made out of court, not under oath or affirmation, and without the Court having the benefit of seeing them tested by cross‑examination.

12. The circumspection required in such a case has been well established beginning with the decision R v Qutami [2001] NSWCCA 353 where the headnote at point 4 accurately states the proposition which Smart AJ advanced:

"Reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. These statements were admissible in evidence, but considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner."

13. The prisoner of course is the term used historically for people in the position such as the offender in sentence proceedings. The principles were later discussed by Wilson J in Imbornone v R [2017] NSWCCA 144 beginning at para [57] where her Honour helpfully extracted the various statements of principle from authority touching upon this point, reminding the Court once again of the circumspection that one must employ when weighing representations attributed to an offender who chooses not to give evidence in the proceedings. It is a regrettable practice in my view and it is as I indicated a challenge to the sentencing court. Of course, that said, these being criminal proceedings, the onus of proof rests upon the Crown to prove the objective facts and circumstances and matters upon which it would rely to establish the seriousness of the misconduct. There is no burden upon the offender to enter the witness box to displace any of that evidence, or indeed to advance any proposition, and to the extent that he has chosen not to enter the witness box in these proceedings I make clear that I have not brought that against the offender in the consideration of this matter other than within the parameters of the two decisions to which I have referred.

The Plea of Guilty

14. The offender pleaded guilty early in the proceedings; the Crown concedes that as a matter that must be brought to account in accordance with the legislation in Part IB Crimes Act1914 (Cth). The Crown helpfully provided in written submissions the relevant principles now governing courts with the assessment of a plea of guilty, and although there is no obligation to do so, it is advisable for the Court to specify a percentage discount to the sentence that would otherwise have been imposed had there not been a plea of guilty entered when it was. I shall apply a discount of 25% to the sentence that would have otherwise been imposed upon the offender.

Pre-sentence Custody

15. The Crown's ultimate submission is that there must be a custodial sentence imposed in this case, a proposition with which I agree. The legislation provides that if a sentence is to be one of greater than three years it is necessary to specify a non‑parole and parole period. The sentence that I have settled upon is less than three years in which case I shall order the offender's release pursuant to s 20(1)(b) Crimes Act 1914 after he has served what I believe to be an appropriate period of time in this case. He has not served any time in custody for this offence other than from when I revoked his bail yesterday. The sentence I impose will commence therefore on 4 February 2021.

16. He has been in custody for other matters that are pending in a magistrate's court and I am told they are extant and will resume in April of this year. I know little of those matters other than by way of passing reference to them in some of the documents that were tendered. Whatever outcome might follow in those proceedings the Court hearing those matters if it decides that there should be a term of imprisonment imposed will simply need to accommodate the sentence I impose today to ensure that there is no greater punishment imposed upon the offender than he ought to suffer bringing into account all of the misconduct upon which he has engaged over recent times.

The Facts

17. As I said, this is a serious offence. Those of us who up until the COVID‑19 virus were fortunate enough to enjoy international travel have experienced heightened security arrangements and concerns set in place and modified from time to time after the tragic events of 11 September 2001, and it is a matter of which I would take notice that the relevant authorities across the globe have developed strategies and systems to enhance security and also to implement action that might be required where there has been a breach of security such as occurred in this case.

18. The misconduct involved two phone calls within a finite timeline and without more would not be so serious, but when one considers the terms of the conversation in which the offender engaged and the consequences that were imposed upon the passengers on the subject aircraft, the authorities called upon to respond, and the disruption to the travel of those on the plane and the travel of those in train to depart later, the seriousness of this behaviour rises as I indicated without more to mid-range.

19. The Crown helpfully has provided in its written submissions the analysis upon which it advances that proposition which I accept and I shall come to that when I deal with submissions.

20. Turning to the facts, on 25 March 2019 about 5.05am Australian Eastern Daylight Time, Singapore Airlines flight SQ423 departed from Mumbai en route to Singapore with passengers including the offender's mother and his son, a child. They were booked also to join a connecting flight to depart Singapore the following day to arrive in Sydney also on that day. There is a requirement in India for the travel of children on an international journey that the parents who are not travelling with the child provide written permission authorising the travel. No such document was provided in this case and none was available to provide to the airline staff when the offender's mother and son were checking in. They were the last persons to be checked in on the day and they could not join the flight unless within the available time the necessary document could be provided.

21. A supervisor, Mr Yadav, a member of Singapore Airlines ground staff, assisted. He provided his private mobile telephone number to the offender so that he could provide the letter of authority to Singapore Airlines staff using the WhatsApp application, by means of which the communication of the document could be made internationally. Shortly prior to the departure of the flight at 11.30pm Mumbai time, or 5.05am Sydney time, Mr Yadav received a message on the mobile application WhatsApp from an Australian telephone number …0545, the telephone service used by the offender in due course in the commission of the offence. The message contained a picture of a handwritten letter providing the necessary permission. It was signed by the offender and his wife. His mother and his son were then permitted to board the plane and it departed.

22. Two calls were thereafter made on 26 March 2019. The first was at 7.18am Australian Eastern Daylight Savings Time from the offender's workplace in Newcastle using the aforementioned telephone number. The call was made to Mumbai International Airport Limited. An employee, Mr Afsan, of that organisation, received the telephone call. There was an exchange which included the offender saying:

1. His name was Sanjay Korat;

2. He was calling from Australia;

3. His mobile number is …0545;

4. There is a flight from Mumbai to Singapore and the flight number is SQ423;

5. SQ423 departed Mumbai around 11.45pm and there is a bomb on board;

6. His mother and five-year-old son were on board flight SQ423 and he is providing this information to help them;

7. He would give them details relating to the bomb "after the crash";

8. He did not know when the bomb would explode or what the bomb looked like;

9. He provided all the information he could and it is now their (MIAL's) responsibility.

23. He thereupon terminated the call. It was said that this involved limited sophistication and I was urged to bring to account that he used his name, his phone, and provided information that confirmed that his mother and son were on the flight that he nominated.

24. He has not given evidence to this effect. Another view might be taken that in following that course he provided a basis upon which he expected the staff member to rely when alerting relevant authorities to the predicament caused. Even if his thoughts did not extend to that point, by providing the information that he did with reference to the flight and the presence of his mother and son on the flight, it added veracity to the claim that there was a bomb on board that aircraft.

25. Mr Afsan communicated the threat and information to the relevant authorities including a bomb threat assessment committee that was tasked with verifying the call details. Armed with the information that the offender provided in the call and the confirmation of that information an emergency landing was ordered for Singapore Airport.

26. A second call was on 26 March 2019 at 7.35am. He again used the same phone and called Mr Yadav, the employee who had gone to the extent of assisting the offender with the arrangement so that the authority document could be transmitted to allow his mother and son to travel on the aircraft. Mr Yadav recorded the conversation which occurred in Hindi. I have not heard the recording. The translation of what was said included the following; it is important to quote all that was said:

"YADAV: Hello.

OFFENDER: Yes, speak.

YADAV: Why are you saying like this?

OFFENDER: Why, why should not I? Why should not I?

YADAV: What problem do you have?

OFFENDER: I tell you my problem. My problem starts from there, sister fucker, you're whoever is sitting there, that it OBC BBC sitting there in the immigration. He says (this is not there. That is not there). Sister fucker. Do not know for how much are you sitting there for? How much bribe have you given to sit there? Everyone knows everything."

27. Of significance in that last exchange is the reference to something that is not there which resonates with the circumstances that required Mr Yadav's assistance in the first place. There was then conversation in the following terms:

"YADAV: The immigration guy?

OFFENDER: Yeah, everyone knows. Even I know. Motherfucker was saying to me. Okay. Today was my mummy's flight, okay, I say that there is a bomb in that. I say that. Do whatever you can.

YADAV: But why are you saying that there is a bomb?

OFFENDER: No, there is a bomb.

YADAV: But why?

OFFENDER: No, there is, that is why I am saying. Motherfucker, if you guys do not do anything then we will not do anything."

28. Then later:

"OFFENDER: No, there is a bomb. That is why I am saying. My mother is there and my son is in there. There is a danger to both their lives, that is why I am saying.

YADAV: Your mum is in there, your child is in there, then why are you saying that there is a bomb in there?

OFFENDER: No, there is a bomb, that is why I am saying. If you want to do something, then do it. If you do not want to do anything, then do not, it is your wish."

29. He was asked about the whereabouts of the bomb.

"YADAV: Where, where is the bomb?

OFFENDER: It is where it is supposed to be.

YADAV: Where is it exactly?

OFFENDER: Exactly where? I am not a terrorist. I am a common man. I do not know but I do know that it is there."

30. Then later in the conversation:

"YADAV: But how can you say direct from there that there is a bomb?

OFFENDER: Now, I know. I have the evidence. I will provide the proof when it is required.

YADAV: Okay.

OFFENDER: There is no need, right. When there is need, the blast happens, I will provide.

YADAV: But you are.

OFFENDER: You keep the recording of my phone. I will provide at that time, when the blast happens, while I will provide okay.

YADAV: When will it happen? Like, at what time?

OFFENDER: Like, that is something I do not know. I am at work right now mate.

YADAV: You have an issue with the migration so why are you saying that there is a bomb?

OFFENDER: No, I do not have any issue with immigration, I have the issue with Mumbai authority, with Mumbai Airport authority, sister fucker. I will keep a bamboo pushed up their arse. They are roaming around pretending to be like heroes. (You should not tap your fingers like that, we also do it). Sister fucker, you do it. I will show you who does what.

YADAV: You do not know where is the bomb. Forget it. Hang up the phone.

OFFENDER: No, I give a warning to you and to Mumbai Airport authority and Singapore Airlines. I have called them both, sister fucker, talk while having some guts in your arse."

31. He also said in this exchange that Yadav should, "Keep the recording of my phone", and, "Extend the phone so as long as you want and record it and find out my location. Okay. Extend as long as you want." Mr Yadav said that before the call the offender had called him twice to make inquiries as to whether his mother or son had boarded the flight. He was polite when he did so. When the second call came to Mr Yadav's phone, he advised the offender that this was his personal phone number and asked the offender not to use the number again. However, the offender did call again with call number two to which I have referred. He was angry and according to Mr Yadav gave the impression of being intoxicated. The connection between the offender and the phone was established in the course of the investigation.

32. On the evening of 26 March 2019, the offender attended the Sydney International Airport at Mascot to collect his mother and son. Unknown to him they had been removed from the flight in Singapore and were rebooked onto another flight. At 9pm he was arrested, cautioned and the mobile phone that he was carrying was seized for the purposes of their investigation. He acknowledged, "I know I shouldn't have told them a bomb was on the plane." He participated in an interview after he was given his Part IC Crimes Act 1914 (Cth) rights and again cautioned. He was assisted with a Hindi interpreter. The following admissions were made:

1. He called Mumbai International Airport Limited (MIAL) to gain information relating to his mother and son;

2. He provided them with images of his wife and his son's passports;

3. MIAL hung up on him;

4. He then called Singapore Airlines' customer service line who kept him on hold for 30 to 45 minutes;

5. He then called the MIAL number he sent the passport images to and was advised by the receiver that this was a private number and not to call it again;

6. He then became angry and made the bomb threat regarding the flight SQ423;

7. When informed by the AFP officers that the Singaporean government had deployed fighter jets as a result of the threat, he said, "It's their fault. If they gave me the information I wanted, it wouldn't have happened."

8. He was asked by MIAL the following questions referring to the bomb, namely what time was it going to explode? What does it look like and how big is it?

9. He informed MIAL that he did not know the answers to those questions;

10. He had three whiskies the night before the threat was made;

11. He was not intoxicated at the time the threat was made;

12. The telephone service …0545 was registered to his wife and used by the offender.

33. He was cooperative in the course of the interview process but demonstrated no remorse, maintaining that the blame for his actions could be attributed to Mumbai International Airport Limited and Singapore Airlines. He was served with a field court attendance notice.

34. The prosecution is advanced upon the basis that he made these threats using the telephone service with what is said to be the pure intention of causing the airport ground staff in Mumbai to falsely believe that an explosive device was on board the flight SQ423.

35. The effects of all of this resulted in the bomb threat assessment committee being summoned. The flights SQ421 and SQ423 were put on high alert as a result of the threats. Around 10.20am Australian Eastern Daylight Savings Time on 26 March 2020, a passenger announcement was made by the captain of flight SQ423 to inform all passengers on board of the bomb threat. The passengers were also informed that the flight would be escorted by two F16 planes operated by the Republic of Singapore Air Force for the landing in Singapore. The passengers on the flight were not permitted to disembark until after security personnel had entered the aircraft and gave the necessary clearance.

36. The Republic of Singapore did scramble two F16-D fighter jets to escort the flight to Changi airport. There were 263 passengers on the flight with 18 crew when the offender made the bomb threat. These included his mother and son. The flight was delayed 30 minutes as a result of the threat. Upon landing in Singapore there were 169 bags and six containers on board which were reverse security screened as a result of the threats. This involved removing the bags and cargo and rescreening it in order to clear them of further threats. The aircraft's following flight was delayed by two hours and these delays had several flow-on effects on other aircraft and passengers including 29 passengers who missed their connecting flights.

37. There is no evidence before me from any of the passengers addressing the extent to which they might have suffered distress or anxiety as a result of what they were told and the inconvenience caused with the arrangements that were required thereafter when the flights were disrupted, but it is a matter in which I have no difficulty taking notice of the fact that there would have been at least some of those passengers with increased anxiety and distress by reason of those consequences.

38. There is also an affidavit provided from the deputy director of operations of the Civil Aviation Authority of Singapore, Air Traffic Services Division. This describes the notification of the threat and the action taken in consequence. It is said by way of this document that the standard protocol of notifying Singapore Airlines and the Republic of Singapore Air Force were followed, and various other agencies nominated in the affidavit were informed including the airport division police, requiring coordination of efforts upon the arrival of the relevant flight. I do not have any information before me providing particulars of the amount of cost that was incurred as a result of all of this but again, I take notice of the fact that it must have been substantial.

The Offender

39. The offender was born in 1980 and will this year reach his 41st birthday. He has limited criminal antecedents. He has one middle-range prescribed concentration of alcohol offence for which he was fined and disqualified, committed in June 2018, and there was a common assault offence in July of 2020 for which he was given a community corrections order.

40. There are sentence assessment reports, the first written on 6 August 2020. At the time of the preparation of this document his marriage had broken down; he had been married for some 15 years. His remaining immediate family are in India. In relation to the offence, he advised that he was stressed over the uncertainty of whether his mother and son had in fact boarded the plane. The veracity of that representation must be considered against the sequence of misconduct in which he took part in the provision of the documents allowing his son and mother to board the aircraft and the text of the conversation in which he acknowledged that they were on the aircraft that he nominated with the advice given that there was a bomb on board.

41. He admitted being a user of alcohol but minimised the level of use and the extent and the severity of it and the impact upon his everyday life. He had consumed alcohol prior to the event and said he was under the influence at the time, consistent with what was observed of his presentation on the phone. He claimed to have actively engaged with drug and alcohol services to address his misuse of alcohol but inquiries indicated that he had either not engaged at all in 2020 or that it was of minimal and superficial quality. He is said to be capable of becoming violent and aggressive when under the influence of alcohol according to inquiries made.

42. He was diagnosed with depression and anxiety some three years before, he represented to the author of the report. There was difficulty confirming his claim of having engaged with psychological interventions. He denied having intention to scare anyone or cause panic or worry and was generally worried about his family. I find difficulty accepting that.

43. He suffered the challenge of being in this country with limited communication and cultural language barriers. That is a matter that must be brought to account when assessing the extent to which he should be incarcerated. He is assessed in this report with a medium risk of reoffending.

44. In the second report written on 10 January 2021 there is reference to his admission to the Calvary Residential Drug and Alcohol Clinic on 16 September 2020, his breach because of his consumption of alcohol, and therefore the failure to comply with the alcohol abstinence rule on 22 December 2020 in consequence of which he was exited from the program, the ultimate decision being informed by his refusal to engage in a meaningful manner and his representations that he did not believe he had a problem that needed to be addressed. He was exited from the program on 21 January 2021. He failed to engage satisfactorily from the beginning of his entering into that program.

45. Before I come to the material that addresses his alcoholism in some greater detail and the consequences for him, I shall deal with recent documents prepared for these proceedings. Mr Khan provided a document dated 3 December 2020. He managed and owned a café in Newcastle Harbour in the Honeysuckle area as I understand it. The offender worked there as a chef in the kitchen. He was seen to have a problem consuming alcohol and in late March 2019 the author heard the offender speaking on the phone, swearing, and speaking offensively in Hindi. He was assessed to be severely intoxicated and loud and aggressive and smelt of alcohol. The author describes this presentation as unusual. Sometime during April 2019 he gave the offender a verbal warning about excessive alcohol use but notwithstanding this in the next few weeks he became intoxicated when he was at work and his employment was thereupon terminated.

46. He speaks of the offender as an upright citizen, a family man, a useful member of the Indian community in Newcastle, willing to work hard to support his family, and someone who has made significant sacrifice to come to this country to provide a better life for himself, his wife and his children. If he successfully undertakes rehabilitation to resolve his alcohol issue, he would reemploy the offender.

47. The Calvary Riverina Drug and Alcohol Centre has provided two documents. The first written on 1 December 2020. This suggests a history of having consumed alcohol from 18 years of age but without difficulty until he was 33 at which point it would have been 2013. At that stage he began to drink on a regular basis, he became dependant. The following factors contributed to alcohol dependency. These were it is said long work hours required to support himself and his family, low wages requiring him to work extended hours to provide adequately, separation from his family, his wife undertook studies to improve employment opportunities, the offender moved from Brisbane to Newcastle to work in a restaurant whilst his daughter and wife remained in Brisbane. This added to his financial pressure and long work hours. He was then burdened with social isolation.

48. He was experiencing difficulty achieving permanent residency but that was acquired in due course. His father in India was diagnosed with stomach cancer but I have read elsewhere that he is at this stage in remission. He reported that the alcohol made him forget all his problems and help him relax and cope with his feelings of powerlessness. He was aware of the link between drinking and his problems and the difficulties with his marriage and mental health. The services available to him are there discussed.

49. The next report on February 2021 confirms his discharge from the facility on 21 January 2021 but without particulars as to why that occurred. They were drawn from the sentence assessment report which I earlier diluted.

50. There is then a report from a psychologist, David Stojcic, from the organization ACME Counselling and Mediation. I used the term "psychologist" but I believe that is incorrect. According to this he is a director within the organisation focusing upon lifestyle and health. According to this he was approached by the offender on 29 January 2021 for professional help regarding anger management. His first appointment was on Monday, 1 February 2021. He formed the view that the offender was highly impulsive, his impulsivity influenced by his unique personality, his temperament and the conflict resolution style that he learned from his family of origin; he is someone who frequently acts before he thinks. Upon the clinical anger scale he showed a score within the range of mild clinical anger. His impulsivity and anger were also negatively affected by his alcohol addiction. At the time of this consultation he was not harbouring anger towards anyone, in particular his wife, and holds himself accountable for the grief he has caused her and his children. Anger management education was commenced and proposed topics are listed. This is all that is available from this person and I have no information regarding their range of qualifications and experience.

51. The next material that I have is by way of reports from Dr Christopher Bench, psychiatrist. The first of those was written on 14 April 2020. This is a second report after an evaluation performed on 11 April 2019. I do not have that document in the material provided to me. The doctor had the opportunity to consider the transcript of the telephone call, material from the James Fletcher/Mater Mental Health Service, a letter from Dr Georgina Cheng, and a letter prepared by Raj Haricharan of 20 February 2020. His age and circumstances are described. The offender was given the opportunity to consider the earlier report but he had not read that.

52. His background history is discussed in some detail, including his immigration to Australia in 2009. He grew up in Mumbai in India. He has a supportive family back at home. There was no adverse history of physical or sexual or emotional abuse as a child or adolescent. He completed year 12 in his homeland. He completed a bachelor of accounting at the University of Mumbai, but in Australia his employment has been in less professional areas: factory worker in a jeweller’s shop for a period; in a Japanese restaurant as a kitchen hand; as a cook and kitchen hand. His shop was closed down because of the COVID-19 pandemic and therefore he had not worked for a month at the time of this assessment.

53. His marital history is discussed. He was admitted Calvary Mater Hospital because of alcohol dependence and mental health issues. He suffered from alcoholic liver disease. At the time of his report his liver function tests had improved somewhat. He was suffering from hypertension and varicose veins for which he had had some surgery. His misuse of alcohol is discussed, beginning at 18 and then becoming problematical in 2013. He was consuming excessive quantities, if the representations attributed to him here are accurate. He reported a history of alcoholic blackouts, the last of which occurred about five months before. He was abstinent for no more than five months. That was the longest period that he had not been drinking. He had engaged in two detoxification programs. Clearly they have not been successful.

54. The first mental health contact was in 2016. Difficulties with anxiety and ruminations, nervousness and sense of worthlessness were the cause. He had associated tremulousness, nausea and heart racing. He had sadness, tearfulness, insomnia, low energy, impaired libido; no suicidal ideation at that time. He was diagnosed by his general practitioner with severe depression. He reported persistent difficulties with depression over this period. There was reference to his psychiatric admission in November 2019. Active suicidal ideation arose in 2018 because of his overdose with medication and whisky.

55. When depressed and intoxicated he is said to have poured petrol on himself at some point. There is reference to this in material tendered today. There was intervention by neighbours and he was admitted under the Mental Health Act 2007 to the Calvary Mater Hospital. He reported deliberate self-harm by punching himself in the head or punching a wall. This had not occurred for some six months before this consultation. There is reference to his psychiatric admissions and his diagnoses of alcohol use disorder with major depressive disorder. His admissions are summarised.

56. He was prescribed medication for depression, with which he claimed to be compliant. The contributing stressors, including his dismissal from the cafe at Honeysuckle is noted. All of the factors identified are said to be triggers for his resort to alcohol in an effort to cope. According to his representations to this doctor, he consumed a litre of wine, beginning the afternoon before the offence before me, and received a call from his mother at 11.30pm. He is attributed with the following, which is not entirely consistent with the facts which have been put before me by agreement; I am quoting from p 5:

"He stated his anxiety (and anger) increased significantly as a result of the information, with his fear that he would not be reunited with his son. He started drinking whisky around 11.30pm - believes he had drunk one bottle of whisky (around 22 standard drinks, for a total of over 30 standard drinks in the hours leading up to the alleged offence) prior to the alleged offence at around 7.20am."

57. If that is his perception of events at the time he was speaking with the doctor, it is inconsistent with the facts that are known from the agreed statement before me. This is a representation attributed to him a significant period after the occasion of the misconduct. This speaks to his ongoing problems which must be brought to account in the assessment of the punishment that he must face. The report continues:

"He did not sleep between 25 and 26 March 2019 as a result of his anxiety regarding the visa issues. The defendant described his mood as ‘very depressive and angry, very hopeless because no-one was giving the proper answers, the proper responses’."

58. There is then a summary of the representations regarding his insomnia. Again, on p 5:

"With regard to the offence itself, the defendant noted having received a phone call at around 11.30pm from his family advising of the difficulties with the visa and documentation. He noted having called a number he found through a Google search for Mumbai Airport. He reported having argued with the individual who answered the phone. He was initially trying to discover information about the whereabouts of his family.

The individual noted he was not the right person to talk to and that the defendant had called him on his personal number. He stated he asked if, ‘the weather was not good or whether there is a bomb on the flight. I was trying to get the information on my family…he picked up the word ‘bomb’…He started to ask where it is, how big it is…After that, I put down the phone’. He stated he was very anxious for the welfare of his wife and son. He noted he had spoken to his mother, both she and his son were crying."

59. The reference to his wife I believe is an error; it should have been his mother. The report continues that he was adamant that he did not make a bomb threat and that he just gave them as an example that there was a bomb and something happened. He was again attributed with representations regarding his anxiety over his family’s welfare and was inquiring about their whereabouts. When he was confronted with the contrast between that information and the transcript of the call, he explained that he was probably not making much sense due to his level of intoxication. One way or another, the representations attributed to him here cannot be accepted as reliable in light of what is known to have occurred.

60. He is attributed with the probability of having suffered an alcoholic blackout at the time of the alleged offence. I find that difficult to accept in light of what is known from the agreed statement of facts. He is said to have been recently fully compliant with his medication and has been abstinent. The report then deals with the question of fitness for trial, in respect of which he was found to meet the required criteria, and he was assessed for the purposes of his state of mental health at the time of the misconduct. The opinion of the doctor is that he did not or would not be likely to have a defence of mental illness available to him.

61. A further report written on 30 November 2020 was for a further re‑evaluation but there could not be an audio visual link organised. The report makes reference to the earlier reports, and as I understand this, it is a report prepared upon being granted access to the notes from Calvary Mater and letters from Raj Haricharan. He participated in this consultation with the doctor. He said that he had been sober for the past two and half months.

62. There is an updated substance abuse history, including the apparent intoxication at the most recent arrest, about which I know very little I must say. This was something to do with him wanting to spend time with his children and having slapped his wife, leading to his arrest. According to the third page in this report there were multiple presentations at Calvary Mater Hospital, including delirium tremens having been diagnosed and auditory hallucinations to which I shall refer shortly. With regard to the offence, he is attributed to the following: "I'm thinking I made a mistake and I put people in trouble. There wasn’t any trouble, but I made them feel like that."

63. On the occasion of this consultation the offender represented:

“I'm thinking I made a mistake and I've put the people in trouble…There wasn’t any trouble, but I made them feel like that…There was not a bomb or anything…They would've been scared…They would be scared because of the bomb threat…The person I speak with happened (sic) he was not giving me the proper answers about my family…I got angry and did this kind of thing to the people, including my family, my mother and my son…I just wanted to know about my family…I was drunk. I was concerned about them…My mother can't speak any other language and she was travelling with my son…He (the worker) said he wasn’t working for Mumbai Airport; when he said that I wondered why he was taking all my details…I was trying to get information from that guy and when I was not able to get the information, I got unhappy…and he knew I was a family member of my wife and my son. I was very worried about this stuff. My mum and my kid, they were alone…I was concerned if they were on plane or at the airport…I had called the airline, they wouldn't give me any information either, whether they were at the airport or on a plane."

64. The representations there are not entirely consistent with what we know to have occurred from the agreed statement of facts. Again, these are representations that are made well after the event and, bearing in mind what I accept to be the case he has suffered significant impairment from his misuse of alcohol, and hence his poor memory, which in my assessment is at least inaccurate in significant events, is explained. That said, in these representations there is a measure of recognition of the harm that he caused and the anxiety, for which he was responsible, suffered by others. The inaccuracy I find to be in his perception at this point of why he did what he did and what precipitated his misconduct.

65. When asked specific questions regarding any possible alternative explanation or motivation for the offences, without further specification of what they might have been and whether they include all that he was facing at that point, he embarked upon a discussion of his Hindu faith, which is not easy to assimilate, I might say, but supports the proposition that his resort to alcohol is inconsistent with the teachings of Hinduism and something which he must address.

66. The report continues with a summary of the documents available to Dr Bench regarding his admissions to the mental health facility for alcohol use disorder with resistant depressive disorder with anxiety and distress. The only motivating factor identified by this doctor for the commission of this misconduct is the misuse of alcohol; it is recommended that he complete his rehabilitation program.

67. The further material that was presented to me today includes a report or a letter from Dr Cheng of 22 November 2019. She refers to his status as an inpatient at Calvary Mater Hospital Mental Health Substance Use Unit between 7 and 12 November 2019, his reuse of alcohol upon discharge, his readmission on 19 November 2019 and the development of Wernicke’s encephalopathy, a medical complication from his misuse of alcohol. At the time of this document, on 22 November 2019, he was being detained. He was confused, disoriented, forgetful and hallucinating.

68. Dr Andrew Ellis provided a report for the assistance of the Commonwealth Director of Public Prosecutions in the assessment of his fitness to face these proceedings. The history summarised is consistent with what I have already discussed. The psychiatric history noted included the intervention of neighbours when the offender had poured petrol on himself in September 2019, wanting to self-immolate. His hypertension and fatty liver are likely to have been the result of his heavy drinking. He was at the time of this assessment in remission from his mental disorders, but this was early in the phase and required active treatment. The diagnosis of alcohol use disorder and major depressive disorder was accepted.

69. Importantly, the source material from the James Fletcher/Mater Mental Health Service is now before me. The first discharge summary relates to the admission on 12 September 2019. This followed the occasion when he poured petrol on himself with the thought of self-immolation, and the intervention of his wife and a friend, who I take was a neighbour, as described in the other material. Background is discussed, consistent with what I have already summarised. He was, in due course, discharged home in the care of his wife because his risk appeared to be low. There was a current care plan available, with a community team in place.

70. Deborah Flowers psychology provided a report on 21/10/2019 following this admission. It is of limited assistance. It simply reiterates in less than one page his admission and that he suffers a legal issue because of what appears to be misunderstanding the whereabouts of his five-year-old son and non‑English-speaking mother.

71. On 18 November 2019 there was a further admission because of a decline in his mental health state. Again, the history of his background is discussed, consistent with what I have rehearsed. He returned to drinking almost immediately upon his release. He phoned his family in India with expressions of suicidal ideation. His prognosis and his psychiatric history are discussed. The Wernicke’s encephalopathy is discussed, but it is noted that he responded well with the dissipation of symptomatology; this included his hallucinations having resolved with a resolution of that condition. He was investigated by way of a CT scan of his brain with no abnormality identified. Medication and thiamine was prescribed, and once that condition resolved, which appears to have been transient, he was returned for the continuing assessment of his otherwise troubling mental health condition.

72. There is also in the material provided what appears to be a self-report of his current use of alcohol, and that indicates at the present time an ongoing problem, which, in the circumstances is not entirely surprising.

Consideration

73. The history of his attendances and access to treatment clearly preceded the date of the offence on 26 March 2019. He has continued to deteriorate over time and thus he is to be assessed for the purposes of these proceedings with regard to his inability to cope with life’s stressors, which in 2013 led him to misuse alcohol to excess, and thereafter deteriorate.

74. Self-induced intoxication is of limited significance in the assessment of penalty for a crime, but it cannot be ignored against a background of challenges in life with which he did not have the strength of character to deal without resort to alcohol. Although he has not given evidence before me of those various stressors, I accept that there is a measure of consistency across the raft of material that is before me supporting the proposition that economic distress and separation from his family in Australia and from his extended family in India have all contributed to his sense of worthlessness, ultimately extending to depression and misuse of alcohol. It explains the misconduct, but it does not excuse it at all or mitigate it to any great extent.

75. His perception of why he so behaved offered after a significant period has elapsed cannot be accepted when one considers the content of the material upon which agreement was reached for the determination of sentence. His perception represented to the doctors, I do not accept. His perception at the time was that the conduct by the people employed in the services being provided to his mother and son were less than adequate, according to his perception, and that prompted him to commit the serious crime with which he was ultimately charged.

76. The Crown has provided extensive written submissions reminding me of the matters that I must bring to account; drawing upon Part IB Crimes Act 1914 (Cth). I am reminded of what the Queensland Court of Appeal said in the decision of R v Gambier [2009] QCA 138.

77. The factors brought to account when considering the significance of a bomb hoax offence are whether the threat was taken seriously. Clearly in this case it was. Second, the consequences, including inconvenience and distress caused by the threat; I have already addressed those. Thirdly, the speed of arrest or interdiction of the event to alleviate fears caused.

78. The Crown submits, and I accept, that in respect of the first his threat was that there was a bomb on board and that he was providing information to assist his mother and five-year-old son who were on board that flight. He said he would provide details of a bomb after the crash. He identified the flight number and those passengers related to him. In the second call he repeated that there was a bomb and that he had the evidence and that he would provide proof when required. The threat was taken seriously and credibility was given to it, arising from the fact that the offender identified persons on board the plane.

79. The impact of the threats, which I have already summarised, is advanced by the Crown. The assessment of the seriousness is to be assessed against the impact of the actions which were, as the Crown submits, significant. There could be no other finding but that the passengers affected by this would have been extremely distressed.

80. The extent of this being an unsophisticated enterprise I have already spoken about. It is challenged by the nature of the information given by the offender putting to rest any proposition that this was a false person attempting to disguise identity when the threat was made.

81. General deterrence is paramount in this case and must be given appropriate weight to reflect that. I accept that there is evidence of contrition, although I note his endeavour to blame others for his actions; namely the staff from Mumbai International Airport and Singapore Airlines. The plea of guilty is a demonstration of contrition. I have indicated I will allow him a discount of 25% in keeping with the decision in Xiao v R [2018] NSWCCA 4.

82. I am reminded of the recent amendments to s 16A(2)(g) Crimes Act 1914 requiring the Court to consider the plea of guilty, the timing of the plea, and the degree to which that resulted in any benefit to the community or any victim or any witness. They must be taken into account. He did enter his plea at the first reasonable opportunity, and it has saved the expense of what would have been an expensive trial I expect, but in circumstances where the outcome would have been inevitable. This was a strong prosecution case.

83. I would not take the view, though, that on the material before me I could conclude that the offender has recognised as inevitable his conviction. This is difficult to do in the circumstances without him having given evidence, when the aspect of contrition and remorse is a matter upon which he carries the onus of proof.

84. It is accepted that he co-operated with the authorities. His age and circumstances are brought to account. His prospects of rehabilitation could not be said to be strong in light of his continuing misuse of alcohol and his tendency to return to its misuse. Hardship upon the family again is not something advanced in any great detail. He is estranged from his wife and children, it appears. His extended family, including parents, are in India.

85. These are matters that must be brought to account to measure the extent of the punishment he will suffer by going to gaol, bearing in mind also that English is not his first language. Indeed, he is assisted in these proceedings by a Hindi interpreter.

86. I am reminded of the various authorities and comparable cases to follow in prosecutions for this offence. I have considered each of them. The Crown helpfully provided a table with the circumstances of each case. None of them are as serious the matter that I have before me.

87. In Gambier there were seven charges of using a carriage service as a hoax committed by a young man under the influence of ecstasy at the time, suggesting a bomb had been left in two nightclubs. People were evacuated from the premises. Action was taken in response to each. The offender in that case was sentenced to concurrent terms of imprisonment of nine months with a custodial component of four months. The contrast between that matter and the present matter is that this threat was made when an aircraft was in the air with 269 passengers on board, with the consequences that I had earlier described.

88. The other decisions come from District Court cases; one in this state before her Honour Judge Hock of R v Siddiq-Conlon (Unreported, NSW District Court, Hock DCJ, 23 November 2012) on 23 November 2012. This involved a threat posted to the Sydney Mardi Gras on a Facebook site drawing upon homophobia, referring to a possible terrorist attack with the risk if imminent danger, and advising all Muslims to stay away from the area. This resulted in imprisonment for nine months, with a custodial component of five months and 11 days. Once again, that is a less serious example contrasted to the offence with which I am concerned.

89. In R v Cooney (Unreported, QLD District Court, Bowskill QC DCJ, 27 February 2017) in the Queensland District Court before Judge Bowskill on 27 February 2017 involved the offender contacting a Legal Aid officer in Brisbane from a prison to inform that a friend had left a bomb in the office. That resulted in a sentence of imprisonment of nine months. Then the decision of R v Rosario (Unreported, Western Australia District Court, Bowden DCJ, 22 March 2012) was a threat to contaminate a dam in Armidale with cyanide, speaking in futuro. This resulted in an intensive corrections order of 18 months. This was in the Western Australia District Court before Judge Bowden on 22 March 2012.

90. Finally, in Western Australia R v Stewart (Unreported, Western Australia District Court, McCann DCJ, 03 May 2010) before Judge McCann on 3 May 2010, a threat was made to a debt collection agency which led to the evacuation of a building. For the two offences charged there were concurrent nine months imprisonment imposed, with the release ordered immediately, it appears.

91. I should interpolate here the document to which I referred earlier indicating his ongoing difficulty with alcohol is, it appears, a self‑reporting instrument for drug and alcohol use, which provides a score reached upon the answers given by the offender regarding intake of alcohol. The day specified was 2 September 2020. The score achieved indicated an ongoing use of alcohol. It does inform, though, to the extent that you can rely upon it, that he has not been completely inactive when pursuing the opportunity to rehabilitate, though he has not shown yet to be in any way successful.

92. The submissions made on behalf of the offender in writing by counsel, who is engaged elsewhere, have urged the view that this should be seen to be misconduct at the lower range of objective seriousness. I have already dealt with that question. I do not accept that proposition. It is also said this matter should be dealt with other than by way of a custodial sentence. I do not accept that submission.

93. Comments were made with regard to what was not said in the agreed statement of facts about the communication to the passengers on that plane regarding the presence of the bomb. I need only refer to what is in the agreed statement of facts to deal with that proposition. It is said there is no evidence before me to explain what was intended with the deployment of the fighter jets upon being made aware that there was a bomb on board this aeroplane. That is true. But the fact is the jets were deployed and, in my view, were clearly necessary in the circumstances.

The Sentence

94. Bringing into account all of that material and the submissions made on behalf of the parties, including those advanced on behalf of the defendant, there can be no outcome other than he is to be convicted of this offence. I have allowed him the 25% discount to the sentence that would have been otherwise imposed, synthesising all of the material that has been provided to me.

95. I have rounded the sentence down to a period of 2 years, which commenced yesterday, 4 February 2021. Pursuant to s 20(1)(b) Crimes Act 1914, he is to be released at the expiration of 12 months from the commencement of the sentence, namely 3 February 2022, conditionally upon him entering into recognizance to be of good behaviour for a period of 3 years thereafter; the recognizance to be entered by him being in the sum of $5,000.

94. The sentence was explained to the offender by way of the interpreter.

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Decision last updated: 24 February 2021