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Court of Criminal Appeal 18 May 2005

Peter William Schaffer v R

[2005] NSWCCA 193

Also reported as 153 A Crim R 372
Theft & propertyPublic order & justice offences
SENTENCE BREAK AND ENTER WITH INTENT

Citation: Peter William Schaffer v R [2005] NSWCCA 193
Court: NSW Court of Criminal Appeal
Date: 18 May 2005
Judge(s): Simpson J, Buddin J, Hall J

Background

The applicant had been sentenced in the District Court on two offences. The first was break and enter with intent to commit larceny, arising from an incident in which he was found inside a garage at a residential unit complex. The second, and more serious, offence arose the following day when, after attending Sutherland Local Court to seek bail for his girlfriend, the applicant telephoned the court from a public phone and made explicit threats to kill, including a threat directed at the presiding magistrate by name, stating he knew where the magistrate lived.

The magistrate was informed of the threats during his sitting day and did not resume until police had searched the court building. He requested that officers remain in court for the rest of the day, was escorted home by detectives, and remained concerned about his personal safety until the applicant was arrested nearly two weeks later.

The applicant was sentenced to a fixed term of 12 months for the break and enter, and a non-parole period of 18 months with a total term of 3 years for the threatening offence. The sentences were partially accumulated, producing an overall non-parole period of 2 years and 3 months and a total term of 3 years and 9 months. He sought leave to appeal those sentences to the Court of Criminal Appeal.

  • Whether the sentences imposed, particularly for the offence of threatening a judicial officer with intent to influence his conduct, were manifestly excessive
  • Whether the fact that the applicant had identified himself by name during the threatening phone call operated to reduce the objective seriousness of the offence

Decision

The Court rejected the submission that the applicant's self-identification during the phone call diminished the seriousness of the offence. Buddin J noted that in one sense it aggravated matters, because the magistrate knew the applicant from having previously sentenced him to a custodial term.

The Court characterised the threatening offence as one of considerable objective gravity. It was described as a blatant attempt to improperly influence a judicial officer in the performance of his sworn duty, striking at the very heart of the administration of justice. The Court drew on the principle that courts must dispense justice in an orderly fashion and that conduct of this kind must be appropriately denounced so that judicial authority is vindicated rather than undermined.

The Court found no error in the sentencing judge's approach. Leave to appeal was granted but the appeal was dismissed, with Simpson J and Hall J both agreeing with the reasons given by Buddin J.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Threatening a judicial officer with intent to influence that officer's conduct is an offence of considerable objective gravity that strikes at the foundations of the administration of justice.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that self-identification by an offender during the making of threats does not necessarily reduce the seriousness of the offending, and may in fact aggravate it in the particular circumstances.
  • Where a threat to a judicial officer discloses knowledge of the officer's home address and causes the officer to alter their conduct out of concern for personal safety, those consequences bear directly on the objective seriousness of the offence.
  • The principle that judicial authority must be vindicated rather than undermined informs the sentencing exercise for offences under s 322(c) of the Crimes Act, making appropriate denunciation a significant sentencing consideration.
  • Partial accumulation of sentences for separate offences committed on consecutive days was treated as a relevant basis for finding special circumstances under the Crimes (Sentencing Procedure) Act, supporting a longer parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 113(1), 322(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314
- R v Jaques [2002] NSWCCA 444
- Registrar of the Court of Appeal v Manian (No 2) (1992) 26 NSWLR 309
- Veen v The Queen (No 2) (1988) 164 CLR 465