R v Mills

[2000] QCA 357

[2000] QCA 357

COURT OF APPEAL

PINCUS JA
McPHERSON JA

ATKINSON J

CA No 162 of 2000

THE QUEEN

v.

ANDREW PETER MILLS	Applicant
BRISBANE ..DATE 01/09/2000
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McPHERSON JA: The applicant pleaded guilty in the District Court at Southport to three counts of the offence under s.321A(2) of the Code of making a statement to another, knowing it to be false, with intent to induce a belief that there was an explosive in a place; in other words, he carried out a bomb hoax. The maximum penalty for that offence is imprisonment for five years. The applicant was sentenced on all three counts to a total term of imprisonment of three months followed by probation for two years, with a special condition that he receive psychiatric treatment or counselling. He now applies for leave to appeal against the sentence on the ground that it is excessive.

The circumstances are that on 8 May 1999 three telephone calls
were received on the 000 number at the Broadbeach Police
Station. The calls were logged and recorded at
8.51 p.m., 8.55 p.m. and 9.12 p.m. In the first of the calls,
the caller said there was a bomb at the Coombabah High School
and that it would detonate in five minutes. The caller was
asked where the bomb was and, at that point, the telephone call
was terminated.

In the second of the two telephone calls, it was said that the bomb was at the Coombabah Primary School and that it would detonate in 45 minutes. When asked for details, the caller said, "You will have to find out." The third call, which as I said, occurred at 9.12 p.m., involved a lengthier conversation in which the caller said that a Sergeant Bennett was responsible for what had happened. He said he was a crooked

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cop.

The call was traced to a public telephone booth and the
applicant was located in the area shortly afterwards. He was
interviewed by police. He admitted that he had made the calls
and had done so because he was annoyed and frustrated. He had
been found guilty in October 1998 of what the Code describes as
serious assault, to which the Sergeant Bennett referred to in
the telephone conversation had been the principal witness.
There was an appeal pending in the District Court against his
conviction or sentence in respect of that matter when he
committed the offences now before us. Apparently this
experience rankled with the applicant and motivated him to

commit the bomb hoax offence.

So far as his personal circumstances are concerned, he was born
on October 25 1965 and so was 33 years old at the time of the
offence. He has a record of a few comparatively minor
offences, but including the serious assault to which I have
referred. There are factors in his history that go in his
favour.

He has a de facto relationship with a woman who has an 11 year old son of her own, both of whom the applicant has been financially supporting. He appears to have a reasonably good work record. Certainly he has been working since October 1999 and is presently well regarded by his superiors who have provided the Court with a reference. He made a timely plea of guilty and has fully cooperated with the police, as well as

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expressing remorse for what he did.

The applicant was subjected to psychiatric examination. On the view of one of those who examined him, he suffers from, or at the time of this incident, suffered from a dissociative condition. The other psychiatrist, however, is not persuaded that that is so, and makes the point in the course of his opinion that the capacity of the applicant to recollect details of the incident is inconsistent with such a condition. A question naturally arises about the risk of his re-offending.

It is said, in the course of the material before the sentencing
Judge, that he was willing to undergo psychiatric treatment;
but counsel before us, on behalf of the Crown, has observed
that during a lengthy period before the applicant was actually
sentenced, he appears to have taken few or no steps towards
that end. Some months had passed and he had not undergone or

chosen to undergo psychiatric counselling or treatment.

There are several cases of sentences of this kind in the past.

The one which is of perhaps most cogency is The Queen v.

Waugh. It was a case in which a threat was made against the office of the State Premier in Townsville accompanied by a statement that the offender wished to kill all politicians. Not surprisingly, it was found that a person who made a statement like that was suffering from chronic schizophrenia and paranoia. He was a man aged 58 years old and so a good deal older than the offender in this case,. What is perhaps more important is that as a result of his threat a 10 storey

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building had to be cleared and no doubt both terror and a good

deal of inconvenience was caused to a large number of people.

In that instance the Court of Appeal emphasised the deterrent
element in sentencing in cases of this kind and the sentence
imposed or upheld was one of imprisonment for six months
accompanied by psychiatric counselling or treatment under
probation. It would, in my opinion, have been open to the
learned sentencing Judge not to impose a prison sentence in a
case like this; by which I mean to say that it would probably
have been within the range of a proper sentencing discretion to
impose a sentence that was suspended, or to take some other
such step short of sending the applicant into prison custody.
But it cannot be said that his Honour was wrong in taking the

course he did.

The applicant's psychiatric status is perhaps unclear having
regard to the differences in opinion between the two
psychiatrists and it may be that he is the kind of person who
is not completely mentally stable. On the other hand, of
course, although a factor of that kind might militate against a
prison sentence, it remains true to say that it cannot operate
as a complete answer to the suggestion of a prison sentence
being imposed. It is fair to suppose that many offences of
this kind are committed by persons who are mentally disturbed
or unstable in some way.

In that sense, the deterrent element in the sentencing process has a weight or function which is perhaps capable of operating

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against the normal mitigating consequences of mental
disturbance in this field of activity. It may be said that,
although no harm was done in the present case, in the sense
that no one was inconvenienced (and in that way the matter is
different from The Queen v. Waugh), it is never possible in any
cases of this kind to be absolutely sure at the time the
statement is made that the hoax is not a genuine or serious

threat that is capable of being carried out.

In this instance the applicant was apprehended soon after the
threat was made, and so alleviated fears of that kind; but, if
he had not been located and caught, it is likely that much more
serious consequences would have ensued. He is fortunate,
perhaps, that he was arrested when he was and that factor goes
in his favour; but the fact remains that offences of this kind
are matters in respect of which a deterrent sentence has an
obvious and useful purpose. It seems to me that the Judge was
acting within the limits of a proper discretion when, in a case
of this kind, he imposed a brief period of imprisonment,
together with an order for probation involving psychiatric
counselling. I would therefore refuse the application for

leave to appeal.

PINCUS JA: I agree.

ATKINSON J: I agree.

PINCUS JA: The application is refused.

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