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Supreme Court 14 December 2012

R v Darren Linney

[2012] NSWSC 1564

Public order & justice offences
CRIMINAL LAW OFFENCE OF THREATENING JUDICIAL OFFICER THREATS OF DEATH OBJECTIVE SERIOUSNESS OF THE OFFENDING WHETHER SPECIAL CIRCUMSTANCES

Citation: R v Darren Linney [2012] NSWSC 1564
Court: Supreme Court of New South Wales
Date: 14 December 2012
Judge(s): Bellew J

Background

The offender was the defendant in civil proceedings brought in the District Court by former neighbours, who claimed damages for nuisance, defamation and personal injury arising from a neighbourhood dispute. In March 2012, Judge Johnstone found against the offender and awarded damages of approximately $189,000. The offender did not attend court to hear the judgment delivered.

Following the judgment, the offender sent a series of emails containing explicit threats of death directed at Judge Johnstone. The emails, sent between 10 April and 28 April 2012, included references to the 1980 murder of a Family Court judge, statements about obtaining the judge's home address, and explicit threats of violence. The offender was already serving a sentence of imprisonment in Queensland at the time of sentencing.

Because the victim was a District Court judge, the Director of Public Prosecutions sought and obtained the Chief Justice's permission to present an indictment in the Supreme Court, on the basis that it was inappropriate for a District Court judge to sentence the offender in those circumstances.

  • What was the objective seriousness of the offending under s 326(1)(b) of the Crimes Act 1900 (NSW), which prohibits threatening a judicial officer?
  • What weight should be given to general and specific deterrence in sentencing?
  • Whether the offender's mental state reduced the need for general deterrence.
  • Whether a full-time custodial sentence was the only appropriate sentencing option.
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.

Decision

Bellew J found the offending to be of considerable objective seriousness. The emails contained unambiguous threats of death, including an explicit reference to a historical assassination of a sitting judge, and statements that the offender had located the judge's home address. The court characterised the offending as a direct attack on the administration of justice.

On the question of deterrence, Bellew J emphasised both general and specific deterrence as significant sentencing considerations. The court acknowledged the offender's mental health history as addressed in psychiatric reports prepared by Dr Clark of Justice Health, but found that any reduction in the need for general deterrence on account of the offender's mental state was limited. The court noted that threats of this nature must attract condign punishment, or the authority of the courts risks being undermined.

The court rejected any alternative to a full-time custodial sentence. Bellew J accepted that the offender's personal circumstances, including his separation from family due to his Queensland imprisonment and the effect of that on his children, were mitigating factors. However, these did not displace the primacy of deterrence and denunciation given the gravity of the offending.

Special circumstances were found to exist under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying an extended parole period relative to the non-parole period. A discount was applied to the sentence to reflect the guilty plea, with Bellew J recording that the total term would have been five years but for the plea.

Orders Made

  • The offender was convicted of the offence under s 326(1)(b) of the Crimes Act 1900.
  • Special circumstances were found under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period of 2 years and 5 months, commencing 4 May 2012 and ending 3 October 2014.
  • Additional parole period of 1 year and 4 months, commencing 4 October 2014 and ending 3 February 2016.
  • Total term: 3 years and 9 months imprisonment.
  • Eligible for release on parole on 4 October 2014; sentence to expire 3 February 2016.
  • Bellew J recorded that but for the guilty plea, the total term would have been 5 years.

Key Takeaways

  • Threatening a judicial officer under s 326(1)(b) of the Crimes Act 1900 carries a maximum of 10 years imprisonment, and the Supreme Court treated the offence as one striking at the heart of the administration of justice, warranting a firm sentencing response.
  • A guilty plea resulting in a meaningful sentencing discount does not insulate an offender from full-time custody where the objective gravity of the offending is high and deterrence is a dominant consideration.
  • Where an offender's mental health is relevant, the court may still maintain a substantial requirement for general deterrence, particularly where the offending targets the judicial system itself.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be established on the facts of a particular case, justifying an extended supervisory period on parole relative to the non-parole period.
  • The procedural mechanism under s 128(2) of the Criminal Procedure Act 1986 allowed the DPP to transfer sentencing to the Supreme Court where it was considered inappropriate for a District Court judge to sentence an offender who had threatened a judicial officer of that court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 326(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Procedure Act 1986 (NSW), ss 20(2), 128(2)

Cases
- Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145
- Lobsey v R [2012] NSWCCA 239
- R v Chaaroui (CCA (NSW), 4 November 1994)
- R v Dodd (1991) 57 A Crim R 349
- R v Edwards (1996) 90 A Crim R 510
- R v Gaudry; R v McDonald [2010] NSWCCA 70
- R v GWM [2012] NSWCCA 240
- R v Jacques [2002] NSWCCA 444
- R v Kaliti [2001] NSWCCA 268
- R v Matthews [2004] NSWCCA 112
- R v Schaffer [2005] NSWCCA 193
- R v Sharrouf [2009] NSWSC 1002
- R v Thomson; R v Houlton (2000) 49 NSWLR
- R v Zamagias [2002] NSWCCA 17
- T v R (1990) 47 A Crim R 29