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Court of Criminal Appeal 23 April 2010

R v Gaudry, R v MacDonald

[2010] NSWCCA 70

Public order & justice offences

Citation: R v Gaudry, R v MacDonald [2010] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 23 April 2010
Judge(s): James J, Howie J, Davies J

Background

The two respondents were convicted by a jury of threatening to cause injury to a witness in judicial proceedings, contrary to s 326(2) of the Crimes Act, which carries a maximum penalty of ten years' imprisonment. The threats were made in the foyer of the Downing Centre courthouse on 12 November 2007, directed at a man who had been summoned to give evidence against one of the respondents in an unrelated criminal matter. The foyer was crowded at the time, with uniformed police officers present along with plain-clothes detectives.

At sentencing in the District Court, Judge Toner imposed suspended terms of imprisonment of 14 months on MacDonald and 12 months on Gaudry. The sentencing judge found the offences sat toward the bottom of the range, partly because he regarded them as "stupid" given how obvious apprehension and prosecution were in the circumstances. The Crown appealed both sentences.

The victim was sufficiently frightened that he refused to give evidence on the day of the threats. He did, however, ultimately come forward and give evidence in subsequent proceedings.

  • Whether the sentencing judge erred in treating the "stupidity" of the offences (that is, the near certainty of apprehension) as a mitigating factor placing the conduct toward the bottom of the range
  • Whether suspended sentences were appropriate for offences of threatening a witness in judicial proceedings, given the need for general deterrence
  • Whether the Court of Criminal Appeal should exercise its continuing discretion to decline intervention, notwithstanding the Crown appeals

Decision

The Court of Criminal Appeal allowed both Crown appeals and re-sentenced each respondent to full-time imprisonment. James J (with Howie J and Davies J agreeing) concluded that suspended sentences were not appropriate for offences of this kind. The court was satisfied that no sentence other than actual imprisonment could be justified.

The sentencing judge's treatment of the offences as falling toward the bottom of the range was a central issue. The Court of Criminal Appeal rejected the view that the near certainty of apprehension was a mitigating circumstance. Rather, the reckless brazenness of making threats to a witness in a crowded courthouse foyer in front of police officers reflected the serious nature of the conduct, not a reason to reduce its gravity.

The court recognised that all offences threatening the integrity of judicial proceedings are serious, and that general deterrence is a significant sentencing consideration for such offences. The difference in roles between the two respondents was noted: MacDonald made the first threat, was the person who stood to benefit from the intimidation, and received a marginally longer sentence than Gaudry.

The court backdated the commencement of the new sentences to 16 October 2009, the date of the original sentencing. No special circumstances were found under s 44(2) of the Crimes (Sentencing Procedure) Act that would warrant adjusting the standard ratio between the non-parole period and the balance of term.

Orders Made

MacDonald:
- Appeal allowed
- Original sentence quashed
- Non-parole period of one year and nine months, commencing 16 October 2009 and expiring 15 July 2011, with a balance of term of seven months
- Directed to be released on parole on 15 July 2011 (unless in custody for other reasons)

Gaudry:
- Appeal allowed
- Original sentence quashed
- Non-parole period of one year and six months, commencing 16 October 2009 and expiring 15 April 2011, with a balance of term of six months
- Directed to be released on parole on 15 April 2011 (unless in custody for other reasons)

Key Takeaways

  • Under s 326(2) of the Crimes Act, an offence of threatening a witness in judicial proceedings is complete upon the making of the threat; there is no requirement that the offender intend to carry out the threat (confirmed in the earlier decision of R v Jaques [2002] NSWCCA 444 and applied here).
  • The near certainty of apprehension arising from the circumstances of an offence does not, of itself, operate as a mitigating factor reducing the objective gravity of the conduct; the Court of Criminal Appeal rejected the sentencing judge's reasoning on this point.
  • Offences that threaten the integrity of judicial proceedings attract a significant general deterrence component at sentencing, which the Court of Criminal Appeal treated as a weighty consideration against the imposition of suspended sentences.
  • Suspended sentences were found to be manifestly inadequate for offences of this character, and the court substituted terms of full-time imprisonment in both matters.
  • Where two offenders are jointly involved in witness intimidation, the degree of role differentiation between them remains relevant, but a modest disparity in sentence may reflect only a minor difference in culpability.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 326(2)
- Crimes (Sentencing Procedure) Act (NSW), ss 12, 44(2)
- Crimes (Appeal and Review) Act (NSW)
- Criminal Appeal Act (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- R v Jaques [2002] NSWCCA 444
- R v Zamagias [2002] NSWCCA 17
- Mulato v R [2006] NSWCCA 282
- R v JW [2010] NSWCCA 49
- R v Carroll [2010] NSWCCA 55