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Court of Criminal Appeal 5 November 2013

Linney v R

[2013] NSWCCA 251

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL OFFENCE OF THREATENING JUDICIAL OFFICER THREATS OF DEATH STERN SENTENCE APPROPRIATE

Citation: Linney v R [2013] NSWCCA 251
Court: Court of Criminal Appeal, New South Wales
Date: 5 November 2013
Judge(s): Gleeson JA, R A Hulme J, Adamson J

Background

Following an adverse judgment in a District Court civil proceeding, the appellant sent a series of three emails containing graphic death threats directed at the presiding judge. The emails, sent over several weeks in April 2012, explicitly referenced the 1980 murder of a Family Court judge, stated that the appellant knew where the judge lived, and included threats to visit the judge at his home. The judge and his associate both reported significant distress, with the judge informing his family and expressing ongoing concern for their safety.

The appellant pleaded guilty in the Local Court to one charge of threatening to cause injury to a judicial officer on account of something lawfully done, namely delivering a civil judgment, contrary to s 326(1) of the Crimes Act 1900 (NSW). The case was transferred from the District Court to the Supreme Court for sentencing, given that the victim was a District Court judge. Bellew J imposed a sentence of 3 years 9 months imprisonment with a non-parole period of 2 years 5 months.

The appellant sought leave to appeal against sentence on the grounds that the sentencing judge failed to give adequate weight to his subjective circumstances and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to give adequate consideration to the appellant's subjective features, including his personal background, remorse, financial hardship, and the conditions under which the threats were made.
  • Whether the sentencing judge erred in characterising the objective seriousness of the offence by confining the relevant conduct to "threatening" behaviour, thereby overlooking that the offence also encompasses actually causing injury or detriment.
  • Whether the sentence imposed was manifestly excessive given the full range of conduct encompassed by s 326(1).

Decision

The Court of Criminal Appeal rejected the submission that the sentencing judge had overlooked the appellant's subjective features. Bellew J had expressly considered the appellant's personal circumstances, including that he had no prior criminal history, had been financially ruined by the civil judgment, had sent the emails in a state of emotional distress during time spent alone in remote mining accommodation, and had expressed remorse. The appellant also received a discount for his guilty plea and a finding of special circumstances reducing the non-parole period.

On the question of objective seriousness, the Court examined the sentencing remarks carefully. The appellant argued that Bellew J erred by treating the threatening conduct as occupying the highest range without accounting for the fact that the offence can also encompass conduct that actually causes injury or detriment, not merely threats. The Court found this argument unpersuasive. Reading the sentencing remarks as a whole, Bellew J was plainly addressing the range of threatening behaviour encompassed by the section, not the full spectrum of all conduct the section could cover.

The Court confirmed that the objective seriousness of the offence was correctly assessed as very high. The threats were not spontaneous: they were repeated across three separate emails over several weeks, referenced a real historical murder of a judge, indicated knowledge of the judge's home address, and caused genuine and lasting fear to both the judge and his associate. These features, combined with the need for stern denunciation of conduct that directly attacked the administration of justice, supported the sentence imposed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Upholding the sentence, the Court of Criminal Appeal confirmed that conduct amounting to a direct attack on the administration of justice calls for a severely denunciatory sentencing response, even where the offender had no prior criminal history and significant personal misfortune.
  • Under s 326(1) of the Crimes Act 1900 (NSW), the maximum penalty is 10 years imprisonment, and the offence encompasses a wide range of conduct, from threats of minimal impact at one end to conduct approaching more serious offences at the other.
  • A sentencing court's assessment of objective seriousness is not vitiated simply because the offence provision also covers conduct beyond what the offender actually did, provided the remarks are read fairly and in context.
  • No error was established in the treatment of subjective factors merely because the sentencing outcome was severe: a plea of guilty, remorse, and personal hardship were all acknowledged, but did not displace the need for significant punishment.
  • Repeated death threats that invoke historical acts of judicial murder and demonstrate knowledge of a judge's home address represent conduct at the very highest end of the range for this offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 326(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- King v R [2010] NSWCCA 33
- Makarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Baker [2000] NSWCCA 85
- R v David Linney [2012] NSWSC 1564 (the sentencing judgment below)
- R v Dodd (1991) 57 A Crim R 349
- R v GWM [2012] NSWCCA 240