51 The sentencing judge in his remarks on sentence and counsel for the respondents in their submissions referred to and relied on the decision of this Court in Jaques.
52 In Jaques the offender, who had been committed for trial by a magistrate on a criminal charge, attended a court office in a country town to complete a form. While in the court office, the offender said, apparently to a court officer, with respect to his being committed for trial, "if I go to gaol for this then when I get out I'm going to kill him (the magistrate)". The offender was charged with an offence under s 326(1)(b) of the Crimes Act of threatening to cause injury to the magistrate for something lawfully done by the magistrate as a judicial officer.
53 The Court of Criminal Appeal allowed an appeal by the offender against a sentence of two years imprisonment with a non-parole period of one year and sentenced the offender to imprisonment for a term of 12 months to be served by way of periodic detention.
54 The leading judgment in the Court of Criminal Appeal was given by Dowd J, with whom the other members of the Court agreed. In par 12 of his judgment Dowd J said:-
"His Honour is correct that there is a need for deterrence for this sort of offence. However, in the circumstances of an offence which was not made in the face of the court, which was done in an office where there were other people present, and although it appears it was uttered in anger, it was not such as to clearly indicate an intention to commit the offence that was threatened."
55 What Dowd J said in par 12 of his judgment in Jaques was quoted by the sentencing judge in the present case and the sentencing judge added "to my mind those remarks apply in each of these cases".
56 It was submitted on behalf of the respondents that the offence in Jaques was worse than the offences in the present case, because in Jaques the offender had made a threat to kill and not merely a threat of reprisals.
57 This Court has, of course, on many occasions cautioned against determining an appeal against sentence by some kind of comparison of the case under appeal with a single other case. However, to the extent to which such a comparison is legitimate, I would not agree that Jaques was worse than, or closely comparable to, the present case. Although the threat made in Jaques was a threat to kill, and in that respect more serious than the present case, it was not a threat that violence would be inflicted by a group of persons known for violence, it was expressed to be conditional, it was not a threat made to the person threatened, the threat would not appear to have induced fear in any one and the threat did not cause any actual interference with the course of justice. In my opinion, the sentencing judge placed excessive reliance on the decision of this Court in Jaques.
58 It was submitted on behalf of the respondents that the Crown in the proceedings for the sentencing of the respondents had conceded that the offences were not so serious as to fall in the middle of the range. I do not consider that this submission should be accepted.
59 The transcript of the proceedings on sentence shows that the Crown's representative handed up written submissions on sentence. It is apparent that in these written submissions the Crown submitted that the offences were in the middle of the range of objective seriousness for offences of their kind. Immediately after receiving the Crown's written submissions, the sentencing judge said "I don't agree that this is an offence at the middle of the range of offences of its type". The sentencing judge added that his impression of the offences was that they had to be some of the most stupid offences he had ever seen committed. His Honour said that the offences were "spur of the moment" and committed in circumstances where it was inevitable that the offenders were going to get caught and be successfully prosecuted. The Crown's representative then said:-
"I heard you speak against those submissions (by the Crown); indeed I wouldn't speak against those observations of your Honour. The only thing I would say is that given all of those, regrettably, the remarks did have the effect to put the witness in fear, so much so that he couldn't give his evidence."
60 I would accept that the Crown's representative said that she would not contest the "observations" the sentencing judge had made about the offences being "spur of the moment" and "stupid", in the sense indicated by his Honour. I would not, however, interpret what she said as being a withdrawal of the submission that the offences were in the middle of the range of objective seriousness. Almost immediately afterwards the sentencing judge said to the Crown:-
"I don't accept the proposition that they fall in the middle of the range of offences of their type, I think that they probably fall at the bottom of the range."
61 I consider that this ground of appeal should be upheld. In the case of each offence, even after allowing for the fact that the offence involved the making of a threat and not the actual causing of injury, that the threat was not a threat to kill, that the threat was not made clandestinely, that there was no clear indication of any intention to carry out the threat and that the threat was made in a location where a number of persons were present who might be able to lend support to the person threatened, and applying the principles which this Court must apply in deciding whether to disturb an assessment by a sentencing judge of the level or degree of objective seriousness of an offence, I consider that it was not open to the sentencing judge to find that each offence fell "toward the bottom of the range". Each respondent made a threat against a person who was in the foyer of a courthouse waiting to give evidence in a hearing at that courthouse that, because he was going to be a witness, there would be reprisals against him by persons who had a reputation for violence and the making of the threat actually interfered with the course of justice by so intimidating the person threatened that he did not give evidence on that day.