Linney v R

The applicant's account to others 25The applicant told the author of the Pre Sentence Report that after the judgment had been delivered "he was angry and frustrated at the judicial system, claiming he was not afforded a fair hearing. He stated that it was this anger that lead to the commission of the offence". It was the author's opinion that the applicant "failed to accept the gravity of his actions". 26Dr Scott Clark, forensic psychiatrist, reported that the applicant did not feel that he was treated fairly by the judge; the plaintiffs' lawyer was corrupt; and that he intended to seek further legal advice and wished to prosecute the judge, the police, and his neighbours. He wanted a retrial. But the applicant had also described the emails as "stupid and impulsive" and said that he had no intention of hurting anyone. 27Bellew J referred to the evidence of the applicant's partner, Ms Tanya Morris. She referred to him having suffered a nervous breakdown in 2009 as a result of the litigation and the financial cost. She subsequently observed him to suffer from stress, sleepless nights and depression. He was taking anti-depressant medication but he had managed to stop drinking alcohol. She observed him to be still suffering from depression at the time the judgment was delivered. She said "the reality of losing the case, the family home to bankruptcy and some possessions was taking a toll on him".

Assessment of the seriousness of the offending 28Bellew J observed (at [31]) that it was inevitable that an unsuccessful litigant will be affected in some way by the adverse outcome and would, at the very least, be disappointed. He also noted that it is unfortunately the case that an adverse outcome may be to the financial detriment to the unsuccessful party. But, his Honour continued: [32] Whilst these circumstances, and those referred to by Counsel as forming the background of the offending in the present case, might go some way to explaining the context in which such offending occurred, under no circumstances can they excuse such offending, much less justify it. No amount of disappointment, no amount of frustration with the judicial process, and no financial consequence however significant, could ever excuse or justify conduct of the kind in which the offender engaged in this case. 29In response to statements in testimonials by Ms Morris and another person to the effect that sending the emails was the applicant's way of "venting", his Honour said (at [34]) that this was to completely ignore the vile, contemptible and confronting terms in which the emails were expressed. 30His Honour accepted (at [35]) a submission that the offending was not planned but also did not regard it as spontaneous, having regard to it involving three emails sent over a period of some weeks. 31His Honour accepted (at [37]) that the terms of the emails would have left the recipient in little doubt that the threats were genuine. But he concluded (at [38]) that he could not be satisfied one way or the other as to whether the offender intended to carry out the threats; the evidence did not allow him to reach a definitive conclusion on this topic. 32His Honour found it "unsurprising" that the stark terms of the threats caused the judge to immediately fear for the safety of himself and his family. He concluded (and this is relevant to ground 2 of the proposed appeal) (at [40]): Irrespective of whether the offender did not intend to act upon the threats, the emotional harm to his Honour consequent upon such threats being made was clearly substantial. That is an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act [1999]. 33It was submitted on behalf of the applicant that at the time of the offending he lacked an appreciation of the gravity of his conduct. After a brief review of the evidence relied upon in support of that submission his Honour rejected it (at [44] and [46]): What the offender did, in blunt terms, was threaten a judicial officer with death. He did so in terms that were specific, stark and chilling. In my view, even when full regard is had to the offender's psychiatric issues ... it is inconceivable that he lacked an appreciation of the seriousness of his conduct. ... It is clear that in sending the emails, and quite apart from their terms, the offender intended to convey, to Judge Johnstone, a threat to his life. He intended that Judge Johnstone would interpret what had been written in that way. I reject the submission that in circumstances where the offender had that intention, he was not aware of the seriousness of what he was doing. I am satisfied that it was obvious to the offender at the time that such conduct was of the utmost seriousness. 34Similarly, his Honour viewed claims by the applicant to the author of the Pre Sentence Report and to Dr Clark that his offending was "stupid" or "stupid and impulsive" as indicating that he failed to fully and properly acknowledge the seriousness of his actions ([47]-[49]). 35His Honour noted (at [51]) that the offending was not isolated but extended over a period of time; it was carried out in the full knowledge by the applicant of the seriousness of his actions; and there was an intention to convey to the judge that his life was under threat. He concluded (at [53]) that the offence "falls above the mid-range" of objective seriousness. (More will be said about this later in the context of one of the grounds of appeal.)

Personal circumstances of the applicant and subjective mitigating features 36His Honour noted a number of features of the evidence concerning the personal circumstances of the offender. It is not contended that his Honour overlooked or was mistaken about anything in this respect. 37The applicant was 46 years of age. He had been in a relationship with Ms Morris for the past 15 years and they had three children aged between 7 and 11. The youngest and eldest of children had certain medical issues. Ms Morris had to defer her nursing diploma studies in order to care for the children. 38The judge noted the applicant's employment history; in the three years leading up to the offence he worked as a boilermaker in the mining industry. He was described as having a good work history. 39A particular matter to which his Honour had regard was the fact that the applicant's family lived in Queensland. Because of geographical and financial reasons, Ms Morris had been unable to visit the applicant since he had been taken into custody in May 2012. It was submitted that this was a mitigating factor in that it rendered the fact of custody more onerous for the applicant. This submission was accepted and the matter was taken into account in the applicant's favour. 40An allowance of 25 per cent was made for the applicant's early plea of guilty in the Local Court in recognition of its utilitarian value. 41His Honour accepted that the applicant did not have a significant record of criminal convictions and that he was of prior good character, although he noted that some of the testimonial evidence in support of the latter proposition was qualified by the authors tending to diminish the seriousness of the offending. 42His Honour declined to accept a submission that the applicant had good prospects of rehabilitation and was unlikely to re-offend. This is the subject of ground four of the proposed appeal and will be discussed more fully in that context. 43His Honour rejected a submission that the applicant was genuinely remorseful. His claims in this respect were regarded as no more than expressions of regret. The applicant raises no complaint about this. 44The offender's mental state was the final subjective matter discussed by his Honour in his sentencing remarks. He said, "the offender's mental state is a matter of some significance in determining the appropriate sentence" (at [88]). 45The applicant had previously been prescribed anti-depressant medication during the course of the civil litigation with his former neighbour. He had been placed on this type of medication again after coming into custody. 46Dr Clark's second report included an opinion that the applicant had "personality problems of a paranoid nature, and he appears to be highly vulnerable to loss and abandonment". Continuation of the applicant's abstention from drug or alcohol use was recommended as they "could exacerbate personality problems as well as depression". His Honour also quoted from Dr Clark's second report: Mr Linney will benefit from psychiatric review and psychotherapy to assist him to deal constructively with his problems and manage his anger and frustration. He remains on antidepressant medications and, following further contact with a psychiatrist, the use of low-dose antipsychotic medication may be recommended. 47Despite there being no submission made on the applicant's behalf, his Honour was prepared to accept (at [94]) that considerations of general and specific deterrence, whilst important in such a case, were of "less significance than might otherwise have been the case had the applicant's mental state been different".

Assessment of sentence 48Bellew J concluded that no sentence other than one of imprisonment was appropriate: s 5 of the Crimes (Sentencing Procedure) Act. 49He concluded that such a sentence should exceed two years and so was compelled, for that reason alone, to reject a submission that the sentence should be suspended: s 12 of the same Act. He had regard to the principle that a sentence must not reflect undue weight to an offender's subjective circumstances and result in something that is not reasonably proportionate to the gravity of the offence, citing R v Dodd (1991) 57 A Crim R 349 at 354 and R v GWM [2012] NSWCCA 240 at [136] per Johnson J. 50His Honour did, however, find that there were special circumstances which warranted a reduction of the proportion of the sentence represented by the non-parole period. These comprised the applicant's "psychological state and the need for him to have an extended period of release which is subject to medical and other supervision" (at [102]). 51In the end, his Honour reiterated the seriousness of the applicant's offence (at [103]-[105]). He remarked that an offence against s 326(1)(b) is, by its nature, serious; it strikes at the heart of the administration of justice. He said that to do other than impose stern punishment would fail to have proper regard to the authority of the courts which, in turn, would undermine the administration of justice. For that reason such conduct should be appropriately denounced in order that the authority of the courts is vindicated rather than undermined. The applicant raised no criticism of those remarks in this Court.

Grounds of appeal 52Four grounds of appeal were relied upon. The first involves a contention that the sentence is manifestly excessive and in relation to it the applicant relies upon submissions made in support of the other grounds. For that reason I will deal with that ground last.

Ground 2 The sentencing judge erred in treating as an aggravating factor, in the absence of any victim impact statement or other sufficient evidence, that the emotional harm, to the victim of the offence, was substantial. 53The applicant submitted that "there was no victim impact statement from Judge Johnstone in evidence at the sentence proceedings". In order for emotional harm suffered by a victim of an offence to amount to an aggravating factor, it has to be both "substantial" and more than would be expected from an offence of the kind committed. 54These submissions were made with reference to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act which provides that it is an aggravating factor if "the injury, emotional harm, loss or damage caused by the offence was substantial". 55Reliance was also placed upon King v R [2010] NSWCCA 33 in support of a contention that any harm caused in this case was not beyond what would be expected from an offence of its kind. A discussion of that proposition appears in my judgment in King v R, with whom Grove and Simpson JJ agreed, at [34]-[35]. I referred to various cases in this Court where it had been found that a sentencing judge had erred by taking into account as an aggravating factor a matter that is an inherent characteristic of an offence, or a particular class of offence. I also referred to the recognition that a factual matter that may be an element of an offence, or an inherent characteristic of it, may be present to a greater degree than is necessary to establish the element, or that is normally a characteristic of the offence, and so may legitimately be taken into account as an aggravating factor. 56At the hearing of the application, counsel for the applicant clarified that the point sought to be made under this ground was that it was not so much the absence of evidence of harm itself, but that there was an absence of evidence that it was "substantial". It was submitted that the statement of Johnstone DCJ only established that he was "extremely concerned" and "extremely upset" and that this was insufficient to establish harm of a substantial kind. Here, unlike other cases where substantial emotional harm has been found, there was no evidence of the victim having to seek out counselling or psychiatric assistance. 57There are three responses to made in dealing with this ground. First, emotional harm is not an inherent characteristic of the offence in s 326. The offence involves threatening to do or cause, or actually doing or causing, injury or detriment. The injury or detriment can be at any level of gravity. Threatening to let down the tyres on a judicial officer's car would be a "detriment" caught by the section but it would not necessarily give rise to emotional harm. And as Ms Wilson, senior counsel for the Crown, submitted, it is at least theoretically possible for a threat to cause injury or detriment to be punishable notwithstanding it was not even communicated to the putative victim. 58Second, whether there was substantial emotional harm caused by the applicant's offending conduct is a question of fact. I am not persuaded that it was not open to Bellew J to find, on the material contained in the judge's statement, that the aggravating factor was established beyond reasonable doubt. In fact, I think it would be perfectly understandable that even the most emotionally robust judge might be terrified by explicit death threats from a disgruntled and volatile litigant, particularly when they are accompanied by statements indicating the litigant knew where the judge lived with his wife and two of his children. 59Third, the aggravating factor in s 21A(2)(g) does not require there to be long term psychological damage for it to be established. There is no requirement for there to be evidence of a victim requiring counselling or psychiatric care. 60Ground 2 should be rejected.

Ground 3 The sentencing judge erred in failing to take into account or did not give sufficient weight to relevant considerations which ought to have mitigated the otherwise appropriate penalty. 61Four "relevant considerations" were identified in the expression of the ground. They were (a) that any term of imprisonment would be more burdensome because his family lived in Queensland and had been, and would be, unable to visit; (b) that the applicant underwent sentence proceedings in the District Court before they were aborted and the case transferred to the Supreme Court; (c) that the applicant did not have a significant record of previous convictions; and (d) that his mental state was such that general and specific deterrence were of less importance than they otherwise would be. 62The contention that the judge "failed to take into account" these matters was abandoned; it being accepted that his Honour considered each of them. The first, third and fourth matters were each accepted by his Honour to be mitigating factors. As to the second matter, his Honour said (at [60]) that he had regard to the delay in the sentence proceedings by virtue of the transfer from one court to another. But he considered it was something that was "deserving of very little weight" on account of there being an "absence of evidence of its precise effect upon the offender". 63Counsel for the applicant contended that the point sought to be made was that the sentence was manifestly excessive having regard to these, and other, matters. It was effectively conceded on the hearing of the application that this ground on its own could not succeed. Such a concession was appropriate when one recalls the often cited statement of Spigelman CJ in R v Baker [2000] NSWCCA 85 at [111]: Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined.

Ground 4 The sentencing judge erred in declining to find the Applicant was unlikely to re-offend and has good prospects of rehabilitation. 64Bellew J discussed matters relevant to the applicant's prospects of re-offending and of rehabilitation at length (at [71]-[79]). He considered that there was "some force" in the submission by the applicant's counsel that certain matters supported favourable findings as to these mitigating factors. 65However, his Honour then referred to evidence that indicated that the applicant had not "moved on with his life", contrary to the evidence of his wife. He had told Dr Clark that he wanted to "prosecute" Judge Johnstone and the author of the Pre Sentence Report noted that he continued to question the judge's integrity. There was also the statement the applicant made to the latter to the effect that he proposed to cease his medication regime when released from custody. The applicant had said something to the contrary in his evidence before King DCJ but Bellew J remained concerned nonetheless. He concluded: [79] In my view, the offender's prospects of rehabilitation are largely dependent upon him abandoning the intentions he originally expressed to Dr Clark about pursuing various matters associated with the earlier proceedings, adhering strictly to any medication regime which might be put in place for him and undergoing psychiatric review. On the evidence before me, significant issues arise at least as to the first and second of those matters. In these circumstances, I am not able to come to any positive conclusion about the offender's prospects of rehabilitation or his likelihood of re-offending. 66Counsel for the applicant submitted that Bellew J "did not have regard to the position that the offence was committed by a person at the end of his tether and that when in that position the Applicant committed the offence by sending the threatening emails. Those matters were very unlikely to be repeated." 67It was also contended that the judge had failed to take into account, in this context, that the applicant was of prior good character, had no significant record of convictions, had a supportive family, and had employment. 68The judge was not persuaded that the applicant was genuinely remorseful. He said, in that context (at [86]), that what the applicant had said was "little more than an expression of regret". In this Court it was submitted that "regret" was "very relevant" to the question of the likelihood of re-offending and prospects of rehabilitation in the context of a 46-year-old man of good character who had been in custody for the first time for more than seven months at the time of sentence. 69This ground, like the second, challenges findings of fact by the sentencing judge. I readily accept that it would have been open to his Honour to have found in the applicant's favour in respect of these two mitigating factors (although personally I consider that doing so would have been generous). But the important point is that, the evidence was not all one way and such a conclusion was not the only one available to be drawn. 70It is implicit in the remarks on sentence that his Honour was aware that the applicant had offended when "at the end of his tether". But there was little to provide comfort that he would not offend if he found himself again in such a state. 71His Honour only referred to statements by the applicant contained in the psychiatric and Pre Sentence reports. He could also have referred to some things the applicant said in his evidence before King DCJ. While professing to be apologetic to the judge, the applicant also conveyed that he remained critical of the judge and disgruntled over his judgment. 72The applicant bore the onus of establishing these mitigating factors on the balance of probabilities. In my view, it was well open to Bellew J to conclude that they had not been established.

Ground 1 The sentence is manifestly excessive 73To succeed on this ground the applicant must establish that the sentence imposed was "unreasonable or plainly unjust": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ. 74Bellew J accepted a number of matters in the applicant's favour. In summary, they were that he had no significant record of previous convictions; he was of prior good character; he had overcome alcohol and substance addictions; he would serve his sentence in more onerous circumstances because his family, who were supportive of him, lived in Queensland; and that general and specific deterrence were less important than they otherwise would be on account of his mental condition. 75An allowance of 25 per cent was made for the utilitarian value of the applicant's plea of guilty. 76Is the starting point of 5 years unreasonable or plainly unjust when considered against the statutory guidepost of a maximum penalty of 10 years when regard is had to the various matters the judge took into account in the applicant's favour? 77It was conveyed to counsel before the hearing of the application that the Court was interested to hear submissions as to the following passage of the sentencing remarks in the light of the range of conduct encompassed by s 326(1): [52] There is necessarily a wide range of threatening behaviour encompassed by the section which creates the offence. Towards the higher end of the scale such behaviour might include, for example, a face to face threat made with the use of a weapon. At the lower end of the scale, the behaviour might manifest itself in a spontaneous threat of harm, as opposed to death. [53] The objective seriousness of the present offending falls somewhere between those two extremes. In my view, taking into account all of the matters to which I have referred, it falls above the mid-range. (Emphasis added) 78Counsel for the applicant had submitted that his Honour should find that the objective seriousness of the offence was "mid-range, if not a little above". The Crown Prosecutor (who did not appear in this Court) responded by submitted that "it would be in the middle of the mid-range, in the middle from the mid-range to the high range". I confess to be confused about what that meant. 79It is appropriate to look at the terms of s 326(1). It provides: (1) A person who threatens to do or cause, or who does or causes, any injury or detriment to any person on account of anything lawfully done by a person: (a) as a witness or juror in any judicial proceeding, or (b) as a judicial officer, or (c) as a public justice official in or in connection with any judicial proceeding, is liable to imprisonment for 10 years. 80Counsel for the applicant submitted in this Court that his Honour had erroneously confined his consideration of the criminality dealt with by the provision to threatening behaviour and had omitted to consider that that an offence will be more serious if it involves actually doing or causing injury or detriment. Accordingly, the assessment of objective seriousness should have yielded a conclusion that it was below mid-range. He accepted that his submission at first instance had been based upon the same erroneous confinement. 81It was submitted that, in addition to the various favourable subjective matters, this aspect provided further support for the proposition that the sentence was manifestly excessive. 82The Crown's response was to submit that it should not be concluded that his Honour overlooked the fact that the section was concerned with both threatening and doing or causing injury or detriment. His Honour's assessment set out above involved a consideration of comparable conduct caught by the section, namely behaviour that was threatening. Senior counsel accepted as a general proposition that, ordinarily, threatening harm would be less serious than causing harm, but submitted that the range of conduct that could amount to the offence was wide so this was not always the case. 83Threats of harm might be made but with the offender obviously having no ability to carry them out. Injury or detriment might actually be caused but could be quite superficial in nature. At the other end of the scale, there would be a practical limit on the extent of injury that might be caused before the offender would be prosecuted for a more serious offence. 84So, the Crown submitted that the present case was correctly characterised by the sentencing judge in terms of its objective seriousness. There were threats of death; they were not spontaneous and were repeated; and they were made in circumstances where the recipient was given real cause to fear that they could be carried out. It was submitted that as far as threats to a judicial officer might go, these were "at the very highest end of the range". 85The Crown submissions should be accepted. I do not accept that his Honour inadvertently overlooked the fact that the offence can involve doing or causing injury or detriment as well as threatening to do so. 86I emphasised the word "threatening" in the passage set out above from paragraph 52 of the sentencing remarks to highlight that his Honour was considering "threatening behaviour encompassed by the section". The submissions for the applicant would have force if his Honour had simply referred to "behaviour encompassed by the section" and then proceeded to give examples at either extreme of threatening conduct. 87Once it is accepted that the characterisation of the seriousness of the offence was not attended by error and was one that was open to his Honour to make, as I believe it was, the conclusion must be reached that the sentence is not manifestly excessive. All of the favourable subjective matters identified in the applicant's submissions were considered and taken into account. The applicant had the benefit of the allowance for his plea of guilty and the further allowance of a reduced non-parole period following his Honour's finding of special circumstances. 88The sentence was undoubtedly a severe one to pass upon a person of the applicant's background and personal circumstances. But his conduct, amounting as it did to a direct attack upon the administration of justice, called for a severely denunciatory sentencing imposition.

Orders 89I propose the following orders:

1. Leave to appeal against sentence granted.
2. Appeal against sentence dismissed. 90ADAMSON J: I agree with R A Hulme J.

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