THE CIRCUMSTANCES OF THE OFFENDING
27 Counsel for the offender submitted that the starting point of any assessment of the objective seriousness of the offending was a recognition of the circumstances in which it occurred. In this regard, Counsel referred to the fact that the second and third emails were sent by the offender on a Saturday, at a time when the offender was away from his family as a result of his work, and where he had been "stewing" about the outcome of the proceedings before Judge Johnstone and the financial ramifications which had resulted.
28A testimonial provided by the offender's partner, Ms Morris, contained the following observations which are relevant to the background of the commission of the offence:
"In December 2009 Darren suffered a nervous breakdown due to the long litigation (since 2007) - King v Linney (2008/289190) and financial costs. As a result of the breakdown I continued to witness Darren suffering from stress, sleepless nights and depression. Darren started taking anti-depressant medication during this time. On a positive note, Darren decided to stop drinking alcohol and has been successful in doing so until this day.
Darren continued to suffer his depression when the judgment (King v Linney 2008/289190) was delivered in April 2012 via email. The reality of losing the case, the family home to bankruptcy and some possessions was taking a toll on him, including working away from his family in the mines (Western Australia and Mackay in Queensland) to fund the legal costs."
29Ms Morris gave similar evidence on oath before Judge King, which was not the subject of any serious challenge.
30Counsel submitted that the outcome of the proceedings before Judge Johnstone had affected the offender greatly, and had played a significant role in his decision to send, in particular, the second and third emails. Counsel also relied upon the offender's evidence before Judge King that he had acted out of "frustration".
31It is inevitable that an unsuccessful litigant will be affected in some way by the adverse outcome of litigation to which he or she is a party. As a matter of common sense, he or she is bound, at the very least, to be disappointed. He or she might well be frustrated, as the offender maintained in his evidence before Judge King was the case here. In civil proceedings such as those to which the offender was a party before Judge Johnstone, it is unfortunately sometimes the case that an adverse outcome may be to the financial detriment of the unsuccessful party.
32Whilst 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.
33Two of the testimonials before me, namely that of Ms Morris and another of a Mr Parks, expressed the view that sending the emails was just the offender's way of "venting". Ms Morris expressed the matter in this way:
"As I have known and lived with Darren for 15 years I can purely say the emails he had written was his way of venting and had no intention of carrying out the threats. After speaking to Darren he stated all he wanted was someone to look into this case and wishes he did not write those emails. I believe he has shown remorse for what he has done and I continue to support him in this matter."
34A description of the offender's conduct as being "his way of venting" is, in my view, a wholly inapposite categorisation of what he actually did. To effectively dismiss the offender's conduct as amounting to nothing more than "venting" is to overlook the reality of what occurred and to completely ignore the vile, contemptible and confronting terms in which the emails were expressed.
35Counsel for the offender submitted that the offending was not planned or pre-meditated, and the Crown did not suggest otherwise. Whilst I accept that this is so, it is equally the case that the offending could not, in my view, be properly regarded as spontaneous. In this respect, one needs only to have regard to the fact that there were three separate emails sent by the offender, over a period of some weeks.
36Counsel for the offender, whilst acknowledging that an offence under this particular section is complete upon the making of the threat, placed some emphasis on the offender's evidence before Judge King that despite the terms of the emails, the offender did not, at any time, intend to carry out the threats that he had made and further, that he in fact did not know where Judge Johnstone lived. Counsel correctly observed that the offender's evidence in this regard was not challenged by the Crown who appeared before Judge King (whom I note was not the Crown who appeared before me).
37The offender's evidence before Judge King that he had no intention to carry out the threats he made would seem to be at odds with his edict in the first email to "take him seriously". Although there was no specific statement in the second and third emails (they being those sent to Judge Johnstone's Associate) to a similar effect, the general tenor of those emails, which included references to "doing the same" to Judge Johnstone as was done to Justice Opas, would leave a recipient in little doubt that the threat was genuine. There is certainly nothing in the second and third emails to suggest that the threat would not be carried out. On the contrary, the terms in which the threats were expressed gave every indication that they would.
38I am, for the reasons previously outlined, at somewhat of a disadvantage in not having been able to observe the offender when he gave that evidence. In circumstances where there was no direct challenge in cross examination in relation to this issue, I am not satisfied that the offender intended to carry out the threats that he had made. Equally, having regard to the evidence of the emails themselves, I cannot be satisfied that he did not. The evidence simply does not allow me to reach a definitive conclusion in relation to this issue.
39In any event, and as Counsel properly conceded, it is the making of the threat which constitutes the offence. It is unsurprising that in the present case, the threats made by the offender, and the stark terms in which they were expressed, caused Judge Johnstone to immediately fear for the safety of himself and his family. That much is clear from the statement of Judge Johnstone which was tendered before me and which contained the following:
"The contents of the email sent by Mr Linney to my Associate have caused me extreme concern. It is not so much the personal abuse, it is the threats. In particular, the reference to Justice Opas and an insinuation that Mr Linney knows where I live, and he is proposing to come to my house, have been particularly upsetting".
40Judge Johnstone had an obvious concern, stemming solely from the contents of the emails, that the threats might well be carried out. He was not to know that the offender may not have intended so doing. Irrespective of whether the offender did or 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 ("the Sentencing Act").
41In terms of other statutory aggravating factors, the Crown has submitted that although the victim was a judicial officer (s 21A(2)(a) of the Sentencing Act) and although the offence involved the threat of violence (s 21A(2)(b) of the same Act), both of those matters are elements of the offence and therefore should not be taken into account as factors which further aggravate the offending. I accept that submission.
42Counsel for the offender also submitted that I should find that the offender had a "lack of insight in not appreciating the seriousness of the offence". As I understood the submission, that lack of insight was said to stem from the fact that the offender did not intend to carry the threats into effect. The evidence in support of this submission included a statement of Ms Morris to Dr Clark, which appears in the second of Dr Clark's reports, to the effect that she "did not think that (the offender) knew that writing to the Judge as he did was serious".
43Having accepted that the report of Dr Clark accurately recorded what she had said, Ms Morris gave the following evidence before me:
"HIS HONOUR
Q What makes you think that your partner did not think that this was serious?
A I just - the way that he - when I ask him why from the beginning, why did you do it, he just said: I just wanted to get it looked into, and it was just his way of getting their attention.
Q You would appreciate, would you not, that there are ways of getting people's attention without threatening them?
A Definitely."
44I do not accept the submission that the offender lacked an appreciation of the seriousness of the offending at the time at which he engaged in it, nor do I accept the views expressed by Ms Morris to Dr Clark. 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 (to which I have referred in more detail below) it is inconceivable that he lacked an appreciation of the seriousness of his conduct.
45I am fortified in that view by evidence given by the offender before Judge King. In the course of being cross examined, and having reiterated that he did not have any intention of carrying out the threats which he had made, the offender gave the following additional evidence in response to a specific question from Judge King:
"HIS HONOUR
Q But what the Crown is really asking you is this, did you intend by making that comment "remember Judge Opas, you should join him" that the Judge would interpret that as being a threat to his life.
A He could do your Honour.
Q Not that he could do, the question is, was that your intention to convey to him a threat to his life by referring to - -
A I would have to say yes if you read it in that context, your Honour."
46It 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.
47Before the court is a pre-sentence report which includes the following statement under the heading "Attitude to the offence":
"The offender admitted that he sent the emails, however disputed the exact wording of the emails as contained in the Police Fact Sheet. He acknowledged that his actions were "stupid". However he appeared to minimise the seriousness of the offence, stating "what could I have done, I was over 1000km away" as well as questing (sic) the integrity of the victim of the offence".
48Further Dr Clark, in his first report, recorded that the offender had said that his offending was "stupid and impulsive".
49For the reasons I have already expressed, it is my view that the offender's actions were not impulsive. In terms of the offender's categorisation of his actions as "stupid" the Crown submitted, and I accept, that any such categorisation grossly understates the seriousness of what occurred. It also reflects a failure on the part of the offender to fully and properly acknowledge the seriousness of his actions, an issue which I have considered further below.
50Counsel for the offender submitted that the objective seriousness of the offending was "mid range, if not a little above". The Crown submitted that it was further towards the high range.
51The offending was not isolated. It extended over a period of time. Any further comment about the nature and terms of the threats which were made would be superfluous. They were, in my view, carried out by the offender in full knowledge of the seriousness of his actions, and with an intention to convey to Judge Johnstone that his life was under threat.
52There 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.
53The 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.