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Butler v R [2013] ACTCA 38 | Case summary | Zoe

ACTACTCA

Butler v R [2013] ACTCA 38

[2013] ACTCA 38

Court of Appeal (ACT)|2013-11-06|Before: Higgins CJ, Gilmour JJ

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Court

Court of Appeal (ACT)

Decision date

2013-11-06

Before

Higgins CJ, Gilmour JJ

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

CHRISTOPHER JOHN BUTLER v THE QUEEN

[2013] ACTCA 38 (6 November 2013)

APPEAL AND NEW TRIAL – CRIMINAL LAW – appeal against conviction – demand for payment – demand or threat: s 32(2) Crimes Act 1900 (ACT) – whether trial judge erred in finding the appellant guilty – whether acts by appellant constituted a mere warning or a threat of harm – where appellant not holding himself out as the person who might execute the threat – where appellant did not consider his words a threat – where threats objectively unambiguous

APPEAL AND NEW TRIAL – CRIMINAL LAW – appeal against sentence – whether sentencing judge erred in determination of aggravating factors – where threat by appellant could not reasonably be construed as a threat to complainant’s family – whether sentencing judge failed to give sufficient weight to relevant consideration – where appellant had good prospects for rehabilitation – where minor criminal history – where no ongoing substance abuse problems – where appellant did not believe his conduct was unlawful but that belief challenged by conviction and sentence

Crimes Act 1900 (ACT), s 32(2)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 29 – 2012

No. SCC 264 of 2011

Judges: Higgins CJ, Burns, Gilmour JJ

Court of Appeal of the Australian Capital Territory

Date: 6 November 2013

IN THE SUPREME COURT OF THE ) No. ACTCA 29 – 2012

) No. SCC 264 of 2011

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CHRISTOPHER JOHN BUTLER

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges: Higgins CJ, Burns, Gilmour JJ

Date: 6 November 2013

Place: Canberra

THE COURT ORDERED THAT:

The appeal on conviction be dismissed.
The appeal on sentence be allowed.
The appellant’s non-parole period be reduced to 12 months, to begin 11 March 2013.

The appellant was found guilty of an offence that contrary to s 32(2) of the Crimes Act 1900 (ACT) he made a demand of Craig Miller accompanied with a threat to endanger that person’s health, safety or physical well-being.
The facts were not in dispute. On 3 March 2011 the appellant told Mr Miller’s wife that he, the accused, had a message for him, that is, Mr Miller. The appellant was described as being very well muscled about 6 feet tall with a number of tattoos and various gold rings and gold necklace. Ms Miller said he looked like the Incredible Hulk, though not green.
There was a financial dispute between Mr Miller and other parties, known as the ‘Galic’s’. It seems doubtful that it was a claim that would be legally recognised.
On Friday 4 March 2011, pursuant to an arraignment with Mr Miller, the appellant attended at Mr Miller’s business premises. Being aware of the background dispute and suspecting the arranged meeting might involve that, Ms Miller set up a recording device in Mr Miller’s office.
The conversation with the appellant was recorded and later handed to police.
The appellant commenced the conversation expressing indifference to whether it was being recorded or not. He made it clear that he was there to arrange collection of the debt Mr Miller allegedly owed. It was represented by him that his “Boss’ had bought the debt and had sent the appellant to collect it. The debt was said to be $60,000. Mr Miller protested that it was not his debt. The appellant replied: “But my boss isn’t going to – my boss doesn’t see it that way”.
The appellant seemed sympathetic to Mr Miller’s position, then said: BUTLER: Yeah, I understand that, but this is – this situation has to be sorted out first --- C.MILLER: Yeah. BUTLER: And, like, if it – I’m the first step and I’m the very polite step. C.MILLER: Yep, yep, yep. BUTLER: I’m a very – I’m just the first initiator, this and that. C.MILLER: Yep, yep. BUTLER: If they start sending these other clowns down that he’s got working for him --- C.MILLER: I understand. But I --- BUTLER: I understand that. But, like, the choice --- C.MILLER: I can’t do it, mate. BUTLER: Well, the choice is going to be up to you from now to them [sic]. Like, my back is against the wall. It’s nothing to do with me. I’m just doing my job, you know what I mean, and I respect where you’re coming from. But he doesn’t give a shit. C.MILLER: Yeah, I understand that. BUTLER: You’ve got to understand, he’s been doing it for thirty years --- C.MILLER: But it’s extortion. I’m getting extorted. It’s, like – it’s – I understand and ...(indistinct)...and things. This is nuts. BUTLER: Yeah, but it’s not about – I’m not trying to say that I’m heavy. Okay. C.MILLER: No, no, no. BUTLER: yeah, well, I’m – dude, I’m nothing compared to this guy. C.MILLER: Yeah. BUTLER: And the guy...(indistinct)... C.MILLER: Yeah, I understand. I understand. I understand. BUTLER: Yeah. If he sends a guy down here that’s six foot seven and a hundred and sixty-five kilos name Junior --- C.MILLER: Yeah. BUTLER: Dude, run out of the shop. I’m telling you, don’t stay here. C.MILLER: But, see --- BUTLER: But – but it’s – like, I can discuss the situation. I can tell him what you’ve said. I can pass a message from me to him. C.MILLER: He can either – he can BUTLER: But his mind is – he’s forked out forty thousand dollars --- C.MILLER: Yeah. BUTLER: He’s interests [sic] --- C.MILLER: I can’t understand why he’d do that. BUTLER: He’s interested in doing the job. Well, it must – well, I don’t know. I don’t know how it works but for him to buy the debt, this guy Abdul, or whatever his name is --- C.MILLER: Abdullah. Yeah, yeah. BUTLER: Abdullah, um, he must know someone pretty high up because he doesn’t normally do that. C.MILLER: Yeah. I --- BUTLER: He doesn’t – he doesn’t normally --- C.MILLER Because it’s --- BUTLER: He’ll take on --- C.MILLER: This is just vindictive. They’re just being vindictive. BUTLER: He’ll take on it, but for him to hand over forty thousand dollars to get – you know, to make, you know... (indistinct)...this kind of debts [sic] that this guy takes are up in the millions to the ten millions. C.MILLER: Yeah, yeah. BUTLER: Like, this is the sort of stuff that he does. And he collects for bikie groups against other bikie groups. He works with the Finks, he works with the ---
The appellant made it plain that payment was demanded and Mr Miller then said: C.MILLER: So I’ve got to come up with all this dough? BUTLER: Yeah. C.MILLER: I can’t do it, mate. BUTLER: Well, he’ll give you – he will give you a time period. Like, I’ll give you a bit of time to think about it. I can – I’ll come back in a week and you can tell me what you’re going to do. C.MILLER: Like, you know, this is just nuts. This is just crazy. BUTLER: Yeah, well – yeah, well, it’s – I apologise but, you know what I mean, it’s just – it’s just the way it is. I can’t – and I can’t change it. And as I said, dude, this guy has been doing it for thirty or forty years and, dude, you don’t know who he is or where he comes from or what. And as I said, the next time someone comes down, it mightn’t be me. It might be someone else. So you’re not going to know who it is or where it’s coming from or whatever. C.MILLER: Mm. And --- BUTLER: And they won’t threaten your children. He’s not the sort of guy that will threaten your kids. C.MILLER: Mm. BUTLER: This – this guy is a stand-up guy. He’d never threaten your kids. C.MILLER: Mm. BUTLER: Your kids and your wife would never be hurt. You have my word. Ever. You don’t have to worry about your kids. You don’t have to worry about anyone coming in to your house --- C.MILLER: This is nuts, mate. This is nuts ... C.MILLER: So you’re basically telling me it’s sixty grand for my life? BUTLER: Hopefully it doesn’t come down to that but it could come down to that. I don’t know. That – as I said, that side of things is not anything to do with me. I don’t ---
That suffices to illustrate the tone of the conversation. APPEAL AGAINST CONVICTION
A plea of not guilty was entered. Submissions were made that the conversation conveyed no threat by the accused to harm Mr Miller or anybody else. Indeed, he had expressly disavowed any such intention on his part, albeit that others it was submitted might do so.
His Honour ruled on that submission on 25 July 2012.
His Honour’s reasons for so finding were expressed as follows: As to the trial of Christopher John Butler: (1) To understand what happened on 4 March, 2011 between the complainant, Mr Craig Michael Miller, and the accused, Mr Christopher John Butler, a little background is necessary. (2) In 2004 the complainant, his wife and their children lived at an address in Palmerston in the ACT. One of the complainant's neighbours was Mr Darryl, D-a-r-r-y-l, Galic, G-a-l-i-c, he lived with his wife and children, one of whom was engaged to a young man named Abdullah. (3) At some time during 2004 one of the complainant's acquaintances, Mr Craig Martin, who the complainant believed was an importer of whitegoods from China which he on-sold to major department stores, told him that if he invested $20,000 with him he would receive a guaranteed interest payment of $5,000 in addition to payment of the principal of $20,000 in three months. (4) Shortly afterwards the complainant mentioned to Mr Galic what he had been told by Mr Martin and Mr Galic decided to invest $50,000 with Mr Martin for an interest return of $10,000 in three months. Mr Martin gave the complainant his bank details was the complainant passed on to Mr Galic so that Mr Galic could deposit the principal of $50,000 into Mr Martin's bank account. (5) Unfortunately, as happens when something is too good to be true, Mr Martin failed to pay the principal of $50,000 or the interest of $10,000 to Mr Galic at the end of three months, and Mr Galic, the complainant believes, sued Mr Martin to recover the principal and interest which resulted in Mr Martin being declared bankrupt, which in turn meant that Mr Galic did not receive anything from Mr Martin. (6) Then, as happens when somebody loses money, Mr Galic looked for someone to blame for his loss of $50,000 and he settled upon the complainant, who he sued in the hope of recovering his money but lost. (7) As a consequence of being sued by Mr Galic, the complainant moved from his residence in Palmerston to a residence in another suburb of Canberra and he did not hear again of Mr Galic until 2 March, 2011. (8) At about 3 pm on 2 March, 2011 the accused attended at the complainant's business premises in Fyshwick in the ACT to speak to the complainant, but, as the complainant was away from the premises, the accused left the premises without leaving any message for the complainant, although he left his mobile telephone number, 0435XXXXXX. (9) At about 11.20 3 March, 2011 the accused again attended at the complainant business premises to speak to the complainant, but the complainant was again away from the premises and the accused spoke to the complainant's wife. She asked the accused, “What do you want to give Craig a message for?” And the accused replied, “The message needs to be given to him personally.” After some further conversation she said, “I can leave a message for you.” And the accused replied, “Do not bother, I know where he lives but I do not want to go to his house. That is why I want to meet him here.” The accused then left the premises. [10] At about 5.45 pm on 3 March 2011 the complainant called mobile telephone number 0435XXXXXX and he spoke with the accused. He asked the accused, “What is this about?” And the accused replied, “I have been sent to give you a message.” He asked again, “What is this about?” And the accused replied, “No, I have got to see you face-to-face.” He then said, “I will be in the showroom at about 10 am tomorrow.” And the accused said, “I will meet you at the showroom at 10 am then.” (11) However, an exchange of text messages on the morning of 4 March 2011 ended with the complainant writing, “All over town with quotes. Meet back at showroom at 2.30 pm.” And the accused replying, “Cool, thanks.” (13) After the arrangement had been made for the accused to attend the complainant[‘s] business premises at 2.30 pm, the complainant's wife set up a video camera and a closed circuit security camera to record the meeting between her husband and the accused. (14) At about 2.30 pm the accused attended at the complainant's business premises to meet the complainant. The complainant met the accused in the showroom of the premises and took him into his office in the premises. The complainant's wife was in the office when the complainant and the accused came into the office. The complainant's wife asked, “What have you got to say?” And the accused replied, “It is just for Craig.” She said, “Well, you can talk in front of me.” And the accused replied, “Well, it is just for Craig and if he wants to tell you later then it is up to him.” Then the accused said, “I just want to talk to Craig alone and you need to leave.” And the complainant said to his wife, “It will be all right.” The complainant's wife left the office and as she did so the accused began to close the office door behind her, which prompted her to ask, “Why are you closing the door?” And he replied, “I just need to talk to Craig.” (15) After the complainant's wife had left the office the accused had a conversation with the complainant. The conversation was recorded. A USB stick with the recording is Exhibit D1. A transcript of the recording is Exhibit D2. In the course of the conversation the accused said these following things to the complainant. I have indicated by number on the transcript corresponding with the following numbers of the things said by the accused to the complainant. As the complainant and the accused interrupted each other, I have deleted some unnecessary or repetitive words and I have run what the accused said into sentences. (i) THE ACCUSED: My boss does debt collection. (ii) THE ACCUSED: I normally get sent down (…I interpose…) to collect a debt because I have good appearance. I am good with words. (iii) THE ACCUSED: Do you know a guy named Abdul? (iv) THE ACCUSED: Abdullah, Abdullah, Abdul. (v) THE ACCUSED: My boss has a debt of something to do with $60,000. He has bought that debt off (…I interpose…) Mr Galic, Abdul's father in law. (vi) THE ACCUSED: Apparently there has been some business deal that has gone on. I interpose, I think the word “on” should be the word “wrong”. (vii) THE ACCUSED: There was a loss of $60,000 and it has not been paid back. (viii) THE ACCUSED: My boss bought the debt for $40,000. (ix) THE ACCUSED: I understand (…I interpose…) that you say it is not your debt but you have got to understand my boss will not see it that way. (x) THE ACCUSED: My boss, he has bought the debt. He has handed over $40,000 so the way he sees it is he is going to expect - you know what I mean. He has told me to ask you, what is the sort of time period do you think it would take you to get it back? (xi) THE ACCUSED: This situation has to be sorted out. I think I am the first step and I am the very polite step. I am just the first initiator. If my boss starts sending down those other clowns down here that he has got working for him, the choice is going to be up to you from now until then. (xii) THE ACCUSED: I am not trying to say that I am heavy. I am nothing compared to this guy. If he sends a guy down here that is 6 foot 7 and 165 kilograms named Junior, run out of the shop. I am telling you, do not stay here. (xiii) THE COMPLAINANT: To be set upon by your boss to say I have got to come up with $40,000 to save my life? THE ACCUSED: 60, 60. (xiv) THE COMPLAINANT: So I have got to come up with all this dough? THE ACCUSED: Yes. THE COMPLAINANT: I cannot do it. THE ACCUSED: Well, he will give you a time period. I will give you a bit of time to think about it. I will come back in a week and you can tell me what you are going to do. (xv) THE ACCUSED: It is just the way it is. I cannot change it and, as I said, dude, this guy has been doing it for 30 or 40 years. And dude, you do not think who he is or where he comes from, and as I said, the next time someone comes down it might not be me. It might be someone else, so you are not going to know who he is or where it is coming from or whatever. (xvi) THE ACCUSED: He is not the sort of guy that will threaten your kids. He will never threaten your kids. Your kids and your wife would never be hurt. You have my word. You do not have to worry about anyone coming down into your house.” (xvii) THE COMPLAINANT: So you are basically telling me it is 60 grand for my life? THE ACCUSED: Hopefully it will not come to that, but it could come down to that. (xviii) THE COMPLAINANT: So what you are saying, I have to come up with 60? THE ACCUSED: You will have to, come up with a certain amount to start with to show that, you know, you are serious, that you are going to pay it back. (xix) THE ACCUSED: But you have got to understand, there is people out there that has been the same sort of stuff (…I interpose…) that they do not have the money. He hears it all the time and then they say, “I do not have that money. I do not have this, I do not have that.” They go around and chop his hand off or break his legs and all of a sudden he gets the money the next day. (xx) THE ACCUSED: Well, I will give you a week. I will come - I will give you a week, right? I will come back next week, okay? (xxi) THE ACCUSED: If you are trying, well, he is not a prick. He is not a prick, but one way or the other he is going to want the money. (xxii) THE ACCUSED: Obviously what we are doing is semi‑legal. We tried to go about it the best way we can. We try to go about it as nicely as possible. We are not going to come down here and say, “Listen, if you do not have the money in two days, well, then…” No, we come down, all right, we will be nice. We will try and sort the situation out in the best way possible. (xxiii) THE ACCUSED: As long as you can come up with a lump sort of a sum, like 20 or 30 grand, I am telling you about, like, you are going to have to come up with something like that to sort of go, “Well, here is this to show you that I am not going to fuck you around.” And say, “Well, I am going to need this amount of time.” And like, he is not going to want, you know, to send someone down here to collect 3,000 once a week. (xxiv) THE COMPLAINANT: I just cannot come up with big dough like that. THE ACCUSED: Well, you are going to need to have to come up with at least probably $20,000 just to show him you are serious. (xxv) THE ACCUSED: I am quite sure if you come up with 20 to start with, at least 20 to start with, anything other than that he is going to go - I can tell you, you are going to want a bit of time to pay it. (16) On 17 March 2011 the complainant reported what the accused had said to him to police. He gave police a recording of the conversation (see Exhibit D1). (17) On 17 March 2011 the accused attended again at the complainant's business premises and he spoke to the complainant's wife, and they arranged that he would meet the complainant at about 3.30 pm the following day at the Plum on Tennant café in Fyshwick. The complainant told police about this arrangement. (18) Accordingly, at about 3.20 pm on 18 March 2011 the accused attended at the Plum on Tennant café in Fyshwick to meet the complainant and he was met by Senior Constable Liam O’Marney, who said, “I am from the police. Chris, is that your name?” And the accused replied, “Yes.” And then he said, “Chris, you are under arrest for the offence of make demands accompanied with threats against one Craig Miller.” And the accused replied, “I am just passing on a message.” Police took the accused to the City Watch-House. (19) At the police station, after declining, as he was entitled to do, to answer questions about what had happened between him and the complainant on 4 March 2011, the accused was charged with the offence that on 4 March 2011, with a threat to endanger the health of a person, he made a demand of the complainant contrary to s 32(2)(a) of the Crimes Act (ACT) and after being charged he was remanded in custody to appear on the following day before a magistrate in the Magistrates Court to answer the charge. (20) Accordingly, on 19 March 2011 the accused appeared before a magistrate in the Magistrates Court in relation to the charge and a magistrate stood over the proceedings to 8 April 2011 and granted conditional bail to the accused. (21) On 28 April 2011 the accused appeared again before a magistrate in the Magistrates Court and, on his being arraigned with the charge, he pleaded not guilty to it and the proceedings were stood over for a case management hearing. (22) On 22 July 2011 the accused was committed by a magistrate in the Magistrates Court to appear in this court to stand his trial. (23) On 6 December 2011 the accused signed a notice electing, pursuant to section 68(b) of the Supreme Court Act (ACT) to be tried by a judge alone. I am satisfied that the accused received advice from his solicitor as to the effect of electing to have trial by a judge alone rather than a trial by a judge and jury. (24) Also on 6 December 2011 the Registrar of this court fixed the trial for 25 March 2013. However, on 18 May 2012 the date for the trial was brought forward to 9 July 2012. It was later changed to 12 July 2012. (25) Thus, on 12 July 2012 the accused appeared before me to stand his trial. He was arraigned with the charge and he pleaded not guilty to it. Although I did not hear evidence from any witness called by the Crown prosecutor, I received the following exhibits tendered by the Crown prosecutor: (A) A notice of admission that the accused is the male person whose voice is heard on the recording having a conversation with Craig Miller on for March 2011; (B) Statement 7 March 2011 of Craig Michael Miller; (C) Statement 8 March 2011 of Jodie Ann Miller; (D1) USB stick of the recording; (D2) Transcript of the recorded conversation; (E) Statement 25 April 2011 of Senior Constable Liam O’Marney. I record that the accused did not give evidence or call evidence during the trial. (26) As I am the judge of the facts as well as the judge of the law, I recognise that the following principles which are designed to ensure that an accused receives a fair trial according to law govern the trial. (i) The Crown has the burden to prove the guilt of the accused. (ii) The accused does not have any burden to prove anything. (iii) The level or standard of proof is proof beyond reasonable doubt. (iv) The accused is presumed to be innocent unless and until his guilt is proved by the evidence beyond reasonable doubt. (v) I must bring an open and unbiased mind to the evidence. I must view it coldly, clinically and dispassionately and I must not let emotion enter into the decision-making process. (vi) I must assess the evidence rationally, using logic and common sense. (viii) I may accept a witness' evidence wholly or in part or reject a witness' evidence wholly or in part. (viii) The accused's silence in court is not evidence against him. It does not constitute an admission of anything by him. It cannot be used to fill any gaps in the evidence that I see. It cannot be used to add weight to the evidence that I accept. (ix) If the evidence satisfies me beyond reasonable doubt of the accused's guilt, then the accused loses the presumption of innocence and I must find him to be guilty. (x) If, however, the evidence fails to satisfy me beyond reasonable doubt of the accused's guilt, then the accused remains presumed to be innocent and I must find him to be not guilty. (27) The essential elements of the charge brought against the accused are that: (i) The accused made a demand of the complainant; (ii) The demand was with a threat; (iii) The threat was to endanger the health, safety or physical wellbeing of a person; and (iv) The person against whom the threat was made is a person other than the person making the demand or an accomplice of the person making the demand. Of course, the accused must be found to have intended to make the demand and have intended to make the threat. (28) The Crimes Act (ACT) does not define either demand or threat. However, although the Criminal Code (ACT) does not define demand, the Code defined threat to include, “A threat made by any conduct, whether explicit or implicit, and whether conditional or unconditional.” (29) The Oxford English Dictionary defines demand to mean, as a noun, “[An] insistent and peremptory request made as of right.” And as a verb, “To ask for something insistently and urgently as a right.” (30) The Macquarie Dictionary defines demand to mean, inter-alia, “To ask for with authority, to claim as of right, to ask for peremptorily or urgently.” (31) The Oxford English Dictionary defines threat to mean, “A declaration of an intention to punish or hurt, an indication of something undesirable coming, and a warning of the infliction of harm.” (32) The Macquarie Dictionary defines threat to mean: (i) “A declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for or conditionally upon some action or course; menace.” (ii) “An indication of probable evil to come; something that gives indication of causing evil or harm.” (33) Whether words amount to a demand is a question of fact to be answered on an objective test. If all the circumstances are such that an ordinary reasonable man would understand that the demand was being made on him, then a demand has been made. I do not doubt that those things numbered (x), (xiii), (xiv), (xviii), (xxi), (xxiii), (xxiv) and (xxv) in paragraph (15) said by the accused to the complainant amount in all the circumstances to a demand and that the accused, when he said those things to the complainant, intended to make a demand upon the complainant. Frankly, I cannot see any valid argument that the accused did not make the demand upon the complainant for payment of an amount of $60,000 with an initial payment of at least $20,000. (34) Whether words or conduct, or words and conduct, amount to a threat is also a question of fact to be answered on an objective test. Although concerning the offence of making a demand with the menace in R v Clear, [1968] 2 WLR122, the Court said: [The test of whether the threat is a menace is whether it is] of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand. I accept that those things numbered (xi), (xii), (xv), (xvi), (xvii), (xix) and (xxii) in paragraph (15) said by the accused to the complainant amount to a threat and that the accused, when he said those things to the complainant, intended to threaten the complainant. Again, I cannot see any valid argument that the accused did not make the threat to the complainant that, if he did not pay the amount demanded, something would happen to him or his wife or his children. (35) As to the issues of demand and threat, the head note to the appeal of Collister v Warhurst, (1955) 39 Cr. App. R. 100 is this: On a charge of demanding money by menaces, an actual substantive demand, either express or by unequivocal gesture, is not an essential ingredient of the offence, nor need the menaces be expressed. If, although there has been no such expressed demand or threat, the demeanour of the prisoner and the circumstances of the case are such that an ordinary, reasonable man would understand that a demand for money was being made on him and that demand has been accompanied by menaces, whether direct or veiled, so that the balance of an ordinary mind would likely to be upset, these two elements of the offence are established. And Starke J, S-t-a-r-k-e, in [the] appeal of Dixon-Jenkins, (1985) 14 A Crim R 372, said this: In order to establish a demand and a threat to injure, it must be established that the accused deliberately and consciously made the demand on another and accompanied that demand with a threat to injure some person, and if that is proved, the offence is established. The person to be injured has not got to be the person to whom the demand is made and it is not an element of the crime and it does not matter if the accused did not intend to carry out the threat. In my view, the demand made by the accused to the complainant with the threat falls squarely within the four corners of these decisions. (36) The next issue, whether the threat was made by the accused was a threat to endanger the health, safety or physical well-being of another person, is, like the other issues, a question of fact to be answered on an objective test. The person making the threat need not be the person who is to carry out the threat. Indeed, the person making the threat need not intend that the threat be carried out. The person to whom the threat is made need not be the person upon whom the threat is to be carried out. Indeed, the person upon whom the threat is to be carried out maybe any person other than the person making the demand or an accomplice of that person. However, the threat must be one to endanger the health, safety or well-being of a person. A threat to bring down a building or the set fire to a motor vehicle or to blow up an aircraft or to disclose an adulterous relationship or to publish compromising photographs is not a threat to endanger the health, safety or well-being of another person. I accept that those things numbered (xii), (xiii), (xv), (xvi), (xvi), (xvii), (xix) and (xxii) in paragraph (15) said by the accused to the complainant amount to a threat to endanger a person's health or well-being. I infer from what the accused said that the threat was to harm the complainant or the complainant's wife or the complainant's children. The fact that the accused referred to the complainant's wife and children was intended to instil fear in the complainant that his wife and children were exposed to harm. I do not doubt that the accused intended that the complainant would fear that the threat might be carried out and that his purpose when making the threat was that the accused would so fear that it would be carried out. For whatever reason, I ask myself rhetorically, [would] the accused have made the threat to the complainant? (37) The final issue is whether the person against whom the threat was made is a person other than the accused or an accomplice of the accused. It would be obvious from what I have said that the person against whom the threat was made [was] the complainant or his wife or his children. (38) In the result, I am satisfied beyond reasonable doubt that, on 4 March 2011, the accused made a demand upon the complainant with a threat to endanger the health or well-being of a person contrary to s 32(2)(a) of the Crimes Act and I find him to be guilty of the offence.
The appellant’s Amended Notice of Appeal cited the following grounds: a) The learned Trial Judge misdirected himself as to the elements of the offence created by section 32(2)(a) of the Crimes Act 1900. b) His Honour found the offence proved on a basis that was not relied upon by the Crown as a particular of the charge. Thereby the conduct of the proceedings was both unfair and irregular. c) The verdict is unsafe and unsatisfactory. d) The sentence is manifestly excessive. e) The sentencing Judge failed to give proper consideration to alternatives to a sentence of full-time imprisonment. f) The sentencing did not reflect current sentencing practice in the Australian Capital Territory. g) The sentencing Judge failed to properly assess the objective seriousness of the offence. h) The sentencing Judge placed undue reliance on his finding that the threats extended to the complainant’s wife and children as an aggravating feature. i) The sentencing Judge made findings contrary to the evidence. Particulars The sentencing Judge found that the appellant was an ‘even chance’ of reoffending. Such a finding was, without explanation, contrary to the balance of the evidence.
With due respect to the submission of counsel that what the appellant said to Mr Miller was merely a warning, it seems to us that his Honour was correct to find that it did convey a threat of harm to Mr Miller to be avoided only by the payment of money. We agree that it is not necessary that the person conveying the threat holds himself or herself out as the person who might execute the threat.
We do not think that the mention of Mr Miller’s wife and children could be interpreted as a threat of harm to them but the threat to Mr Miller was clear and, to our minds, unambiguous. We dismiss the appeal against conviction. APPEAL AGAINST SENTENCE
As to sentence, the Court on 6 May 2013 considered the sentence imposed by Nield AJ should be amended.
The head sentence was not challenged; that being three years from 11 March 2013. We did not, therefore, propose that it be reduced.
We considered there were made out two grounds for reducing the non-parole period to 12 months dating from 11 March 2013.
The first reason for that conclusion was that we did not consider that the threat made by the appellant could reasonably be construed as including the complainant’s family. That removed a circumstance of aggravation his Honour had found to be present. The second was that it seemed to us that the learned trial judge had given insufficient weight to the appellant’s prospects for rehabilitation.
The appellant had several minor matters on his criminal history. The appellant did concede some past illicit drug use in the Pre-Sentence Report. There were no ongoing substance or alcohol abuse problems.
The appellant claimed that he did not understand that his conduct had been unlawful. He was assessed as being of low risk of further offending but it was considered that he needed to challenge his beliefs as to the wrongness of his conduct. The conviction and sentence will undoubtedly have that effect.
As Higgins CJ observed on 5 May 2013: The other matter upon which we consider that the trial judge erred in respect of sentence is upon the prospects for rehabilitation, and that relates to the knowledge by the appellant to the unlawfulness of his conduct. His Honour so found but no reasons were advanced for it. He seemed to indicate at the beginning of the recording of the conversation an indifference to whether the conversation was being recorded or not, which is perhaps supported by his comment at one point that what they were doing was semi-lawful. As I say, whatever that means is not entirely clear but it does seem, to me at least, to mean that he thought that his part in the process was the lawful part, though there might be some unlawfulness involved later. That doesn’t mean, of course, that he escapes punishment for it. But it does indicate that if he did not expressly understand that his conduct was unlawful, he will be less likely to repeat it when he is told that it is. Again, there were no reasons advanced by his Honour for rejecting the view.
For those reasons we upheld the appeal against sentence and reduced the non-parole period to 12 months. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.