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District Court 8 February 2016

Misra v R

[2016] NSWDC 8

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEALS AGAINST GAOL SENTENCES VIOLENT THREATS VIA EMAIL AND PHONE RESISTING ARREST ASSAULT POLICE BREACH OF GOOD BEHAVIOUR BONDS

Citation: Misra v R [2016] NSWDC 8
Court: District Court of New South Wales
Date: 8 February 2016
Judge: Cogswell SC DCJ

Background

The appellant was an unrepresented man who had accumulated a criminal history involving stalking, intimidating, and contravening apprehended violence orders (AVOs) in favour of former solicitors. Despite this pattern of conduct, he had repeatedly received good behaviour bonds rather than custodial sentences.

In October 2015, the appellant resisted arrest and struck a police officer while being arrested in a public place, adding offences of actual personal violence to his record. Then, in early November 2015, he left a voicemail message at his former solicitor's office threatening to bomb and burn the premises, stating the threat was "not a joke" and that he would "reign terror" on the solicitor.

A Local Court magistrate sentenced him to 11 months imprisonment (with a non-parole period of 7 months) for contravening the AVO, 7 months for using a carriage service to threaten serious harm, and 3 months each for resisting arrest and assaulting police. The appellant appealed all of those sentences to the District Court.

  • Whether the 11-month sentence for contravening an AVO was manifestly excessive, having regard to the appellant's personal circumstances
  • Whether the 7-month sentence for using a carriage service to threaten serious harm was excessive
  • Whether the 3-month sentences for resisting arrest and assaulting police were appropriate, given the relatively minor nature of the conduct on those occasions
  • Whether the appellant's difficult personal circumstances (bereavement, cessation of medication, alcohol dependency, marriage breakdown) warranted a more lenient outcome

Decision

Cogswell SC DCJ upheld the sentences for the AVO contravention and the carriage service offence, finding both were justified. The threatening voicemail was serious: it was graphic, repeated, explicit about timing, and directed at people in an ordinary workplace. The court noted that the courts had already been very lenient with the appellant, and the combination of a prior criminal record for similar conduct and the fact that he was on good behaviour bonds at the time of offending were aggravating factors, not mitigating ones.

The appellant's personal circumstances, including his mother's death, his cessation of medication, his alcohol problem, and the breakdown of his marriage, were acknowledged. The District Court accepted these explained the context of his offending to a degree, but found they did not justify the commission of serious crimes. People, the court observed, are entitled to feel safe in their working and domestic environments.

On the police-related offences, the court took a different view. His Honour found the 3-month sentences for resisting arrest and assaulting police were somewhat harsh for what was a relatively minor example of that type of offending. Those sentences were reduced to 2 months each, though by the time of the appeal they had already expired.

The overall non-parole period remained 3 July 2016, with the total sentence expiring 6 November 2016. The District Court declined to order the appellant's early release.

Orders Made

  • Appeals against sentence for the AVO contravention offence (s 14(1), Crimes (Domestic and Personal Violence) Act 2007): dismissed; 11-month sentence with 7-month non-parole period upheld
  • Appeal against sentence for using a carriage service to threaten serious harm (s 474.15(2), Criminal Code Act 1995 (Cth)): dismissed; 7-month sentence upheld
  • Appeal against sentence for resisting an officer in execution of duty (s 58, Crimes Act 1900): allowed; sentence reduced from 3 months to 2 months, commencing 4 December 2015 and expiring 3 February 2016
  • Appeal against sentence for assaulting a police officer in execution of duty (s 60(1), Crimes Act 1900): allowed; sentence reduced from 3 months to 2 months, commencing 4 December 2015 and expiring 2 February 2016

Key Takeaways

  • A history of leniency does not insulate an offender from a custodial sentence when the seriousness and repetition of conduct escalates; the District Court found that the appellant's record for precisely the same type of behaviour was an aggravating factor, not a neutral one.
  • Offending while subject to good behaviour bonds constitutes a further aggravating factor in sentencing, compounding the seriousness of the primary offence.
  • Difficult personal circumstances, including grief, mental health difficulties, and substance abuse, may explain the context of offending but do not, of themselves, justify the commission of serious crimes involving threats of violence.
  • Under s 474.15(2) of the Criminal Code Act 1995 (Cth), using a carriage service to threaten serious harm is treated as a serious offence; a voicemail threatening to bomb and burn a workplace was found to warrant imprisonment, particularly given prior offending of a similar character.
  • In dismissing the bulk of the appeal, the District Court confirmed that sentences for AVO contraventions involving explicit, repeated threats of violence will attract significant custodial terms, especially where the offender has been given multiple prior opportunities to comply.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 60(1)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Criminal Code Act 1995 (Cth), s 474.15(2)

Cases cited: None cited in the judgment.