R v Waugh

[1999] QCA 45

99.45

COURT OF APPEAL

McMURDO P THOMAS JA WILSON J

CA No 425 of 1998
THE QUEEN
v.

KERRY ALEXANDER WAUGH

BRISBANE

..DATE 26/02/99

JUDGMENT
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THOMAS JA: The applicant seeks leave to appeal against
sentences imposed for two counts described as bomb hoax.

The maximum sentence for such an offence is five years'

imprisonment. His sentence was one of six months'
imprisonment with three years' probation with a special
condition concerning psychiatric treatment.

The applicant is 58 years old and has a quite minor criminal history that is really irrelevant to present considerations. The circumstances are that last September he made two phone calls to the office of the Premier in Townsville on the morning of an expected visit by the Premier. He described himself as the Oklahoma bomber and said, "I'm calling to wish you a happy day and a great big boom." He made a second call some minutes later to another person stating, "To add to my first call, as well as blow up the Premier today, I want to blow up all politicians. The fuse is lit and is slowly burning."

The office was in the Suncorp building, Townsville. The threats were taken seriously and all ten floors were evacuated requiring between 200 and 250 people to leave.

Searches were undertaken by six police officers and a

bomb technician. Emergency services were placed on
alert. In an interview with police the applicant
claimed it was a joke and that he was speaking
metaphorically of economics and politics, adding, "I'm
going to blow the politics and the economics of this

country up."

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The learned sentencing Judge observed that the exercise would have been very inconvenient and distressing to many innocent citizens and that little remorse was shown. His Honour observed that general deterrence was the paramount consideration in sentencing on such a matter, and in my view that was an appropriate observation.

A psychiatric report was tendered and this indicated that the applicant was a diagnosed sufferer of chronic schizophrenia with psychotic depression and a paranoid personality, but that the applicant was not psychotic at the time of the offences. The report has a negative aspect so far as the applicant is concerned in that it makes more than a passing suggestion concerning the possibility of re-offending.

The submission was made in the written outline that the applicant was not an appropriate vehicle for making an example to others. However, in my view, to decline to punish with some severity would give the wrong message.

A further submission is that the sentence of

imprisonment would weigh more heavily on him than
others. This is true, but the sentence was not
particularly heavy and was consistent with due weight

having been given to this consideration.

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Other matters mentioned are that no device was actually
placed. That is not a persuasive argument as at the
time
no-one could have known that fact. Of course it is a
fact in the case; but he is charged with a hoax rather
than with actual placing under section 321(A)(1).

It was submitted that his mental condition and personality disorder reduce his moral culpability. Accepting that to be so, it seems to me that he would have received a higher sentence but for that factor.

Mention was made of certain English decisions where severe sentences were imposed, and it was submitted that these should not be regarded as a touchstone because of different conditions applicable in that country. It seems to me that the learned trial Judge recognised this. Having reviewed the case, I can find no error or indeed any inappropriateness of the sentence that was in fact imposed. It represents in my view a perfectly moderate response on behalf of the community to conduct that, unless effectively deterred, represents a real risk to law and order. I would refuse the application.

THE PRESIDENT: I agree.

WILSON J: I agree.

THE PRESIDENT: The order is the application for leave to appeal against sentence is refused.

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