R v ZEALAND - [2008] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ZEALAND
[2008] SASC 110
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice David)
30 April 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence – appellant pleaded guilty to two counts of threatening life – appellant sentenced to imprisonment for three years and six months with non-parole period of two years and two months – whether sentence is manifestly excessive – whether sentencing judge had regard to all relevant factors – appeal dismissed.

R v ZEALAND
[2008] SASC 110
Court of Criminal Appeal
Doyle CJ, Debelle and David JJ

DOYLE CJ:I would dismiss the appeal. I agree with the reasons given by Debelle J for doing so.
DEBELLE J. This is an appeal against sentence.
The appellant pleaded guilty to two counts of threatening life. On 12 May 2006 he had sent an email in which he had threatened to kill his mother and his stepfather. The appellant was sentenced to imprisonment for three years and six months with a non-parole period of two years and two months. The judge ordered that the sentence commence on 13 May 2006, the date when the appellant was taken into custody. In addition, a restraining order was made ordering him not to contact his mother or stepfather to go within two hundred metres of them.
The appellant contends that the sentence is manifestly excessive.
After the appellant’s birth, his mother separated from his father and later married his stepfather. His stepfather had a daughter, Susannah. She and the appellant grew up together as brother and sister. In 1997 Susannah was murdered. The murderer has not been identified and the crime remains unsolved. The death of Susannah has had a profound effect on the appellant.
When Susannah was murdered, the appellant was not residing in South Australia. He returned to South Australia for her funeral but again left the State. He has had no contact with his mother or stepfather since 1997.
After the murder, the appellant’s mother and his stepfather received payments of compensation under the Victim’s of Crime Compensation Scheme. Since 2004 the appellant has also sought payment of compensation. He has been denied compensation. That has caused him to become angry. He has accused his mother and stepfather of molesting him and Susannah as children. He has accused them of abusing children. There is no evidence to support these allegations. The allegations have not been made to police. He has made these accusations in the many emails he has sent to Mr O’Connell, the Commissioner for Victims’ Rights, in the period 13 December 2004 to 12 May 2006 during which he has sought to advance his claim for compensation.
Since 13 March 2006 the appellant has been consulting Mr O’Brien, a psychologist. In the course of consultations, the appellant has repeated his claims that he and Susannah had been abused by his mother during their childhood. He said that he considered this to be a contributing factor to the lifestyle of Susannah which led to her death. He believes that the fact that his mother is receiving victim’s compensation is a miscarriage of justice. He harbours a great deal of anger and resentment towards his mother. The appellant has told Mr O’Brien that he was traumatised by the murder of Susannah. Mr O’Brien reports that, while the appellant was disturbed by the death of his stepsister, he is not suffering from any mental illness.
The last email that the appellant sent to Mr O’Connell is dated 12 May 2006. In that email he said that he was returning to South Australia, which he described as “the scum state that murdered my sister”. He then said in the email:
I have told you over and over my parents are child abusers. It is falling on deaf ears, so I am coming back to kill those mongrels (sic).
Mr O’Connell reported to the police who in turn informed the appellant’s mother and stepfather of the threat.
The appellant was arrested on 13 May 2006 while travelling on a bus to Adelaide. He gave himself up to police. He was refused bail. He pleaded not guilty to the charges of threatening life. He did not change his plea until the eve of the trial. He had been in custody for 18 months at the time he was sentenced.
The judge had reduced the sentence by twelve and one half per cent for the eleventh hour change of plea. It is not suggested that any higher reduction should have been made in the circumstances.
The appellant is aged 45 years. He has a prior conviction for a drug offence some 10 years ago and for other earlier offences including four convictions for malicious damage. He has worked as a chef and has travelled extensively overseas. The sentencing judge was informed that, on release, the appellant intends to leave Adelaide and go to work in New Zealand.
The appellant’s mother is aged 69 and his stepfather 79 years. The threat was the first contact that the appellant has had with his mother since 1997. The threat has had a frightening effect upon them. The threat would have been particularly frightening given the lack of contact with the appellant since 1997. The appellant’s mother and her husband fear for their lives. They have re-arranged their domestic affairs. They fear that, on release, the appellant will not comply with the terms of the restraining order. At the same time they do not wish him to be in prison.
Through his counsel the appellant had expressed remorse for his conduct. He said that he understood the effect of his actions upon his mother and stepfather. Although the sentencing judge had some regard to that, the appellant contends that the judge did not have sufficient regard. Little, if any, weight can be attached to the assertions of contrition and remorse made on behalf of the appellant. They must be weighed against the fact the appellant did not plead guilty until the eleventh hour. Had he been truly remorseful, the appellant would have appreciated the gravity of his conduct and the serious effect it had on his mother and stepfather. The evidence against him was overwhelming. True remorse and contrition would have resulted in a much earlier plea of guilty.
The sentencing judge sentenced the appellant on the footing that he had not intended to frighten his mother and stepfather into believing that he intended to carry out the threat but rather that he was recklessly indifferent as to whether such fears were aroused in them by the threats. He described it as an act of gross recklessness resulting in a high level of culpability. Whatever the precise motive was, he said, the threats were taken seriously and those threats remain.
This was not, like so many offences of this kind, a spontaneous threat made in the heat of the moment when passions may be inflamed by alcohol. It was entirely unprovoked. It was deliberate. The appellant had typed the message and had sent it. He followed it up by setting off to Adelaide and informing his psychologist of his intentions. It would have been very frightening given that the appellant was putting his threat into action in the sense that his mother and stepfather knew that he was travelling to Adelaide.
The seriousness of the threat must have been underlined in the minds of his parents by the fact that the appellant’s psychologist also informed police that the appellant had spoken of his intention to kill his mother, only a few hours after the initial threat. It was necessary that any sentence should act as a general as well as personal deterrent. Regard must also be had to the terror it caused his parents as well as their consequent fear of any future attempt on their life.
The judge had regard to the appellant’s record for the purpose of noting that he was not entitled to any leniency from the court. The appellant’s submission that the judge gave too much weight to his prior record is quite unfounded.
The sentencing judge had regard to all relevant factors. It has not been demonstrated that he has erred in the exercise of the discretion. This was a serious threat which has profoundly affected the victims. It was a crime calling for a severe penalty. The sentence might be at the upper end of the scale but it is not manifestly excessive.
I would dismiss the appeal.
DAVID J. I would dismiss the appeal for the reasons given by Debelle J.