Citation: Kennedy v R [2018] NSWCCA 43
Court: Court of Criminal Appeal, NSW
Date: 28 March 2018
Judges: Meagher JA, Rothman J, Button J
Background
The appellant was sentenced in the Local Court at a regional centre in May 2016 to seven months imprisonment for driving whilst disqualified. Five days after being taken into custody, he handed prison officers a handwritten letter demanding it be faxed to the courthouse where he had been sentenced. The letter contained explicit threats to kill the magistrate and blow up the courthouse.
Over the following days, the appellant repeated these threats orally to prison officers, told police he had hidden a bomb in the courthouse's male toilets, and provided detailed hand-drawn diagrams of the alleged device's location. A comprehensive police search of the courthouse found nothing. In a subsequent recorded interview, the appellant confirmed he had researched courthouse security, noted the magistrate's daily arrival times, and stated he would "not bat an eyelid" if he had to kill him.
The appellant pleaded guilty in the District Court to two counts of threatening injury to a person on account of something lawfully done as a judicial officer (s 326(1)(b), Crimes Act 1900) and one count of conveying false information that a person or property is in danger (s 93Q(1), Crimes Act 1900). Judge Frearson SC imposed an aggregate head sentence of four years and three months imprisonment, with an aggregate non-parole period of two years and nine months. The appellant then sought leave to appeal against that sentence.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the threats, specifically by failing to account for the fact that the threats were not communicated directly to the magistrate and by finding there had been a "long-hatched plan with considerable deliberation"
- Whether the sentencing judge failed to give appropriate weight to the appellant's mental illness
- Whether the appellant was denied procedural fairness when the judge described his record as manifesting "persistent disobedience"
- Whether the aggregate sentence was manifestly excessive
Decision
Objective seriousness and the indirect communication point: Button J rejected the argument that the threats' indirect communication to the magistrate (via prison officers rather than directly) reduced their seriousness. Rothman J added that the appellant was at least reckless as to whether the magistrate would be told, and that notifying prison officers of a threat to kill a judicial officer necessarily creates the expectation that authorities will act on that information. No evidence was led to displace the inference that the appellant knew the magistrate would be informed. The finding of a "long-hatched plan" was supported by the appellant's own statements in the recorded interviews about researching security, purchasing materials via the dark web, and forming the intention to kill the magistrate well before his court appearance.
Mental illness: Button J found the sentencing judge had not erred in his treatment of the appellant's psychological and psychiatric difficulties. The appellant himself had repeatedly insisted in his police interviews that he was sane, a complicating factor for any submission that mental illness materially explained the offending. The judge had acknowledged the appellant's background and difficulties but balanced them against the gravity of the conduct.
Procedural fairness: The Court found no denial of procedural fairness in the judge's observation about the appellant's criminal record. The lengthy criminal history was before the court, and no new finding of fact was made that required the appellant to be given a further opportunity to respond.
Manifest excess: Button J concluded the aggregate head sentence fell within the range open to the sentencing judge. The court identified significant countervailing factors: the profound gravity of threatening to bomb a courthouse and murder a magistrate in retaliation for a lawful sentence; the fact that the threats were sustained over an extended period in both oral and written form; the appellant's confirmed access to firearms; the waste of police resources; and the particular vulnerability of judicial officers sitting in regional towns. Indeed, the Court noted the aggregate non-parole period might be characterised as lenient.
Orders Made
- Leave to appeal granted.
- Appeal against sentence dismissed.
Key Takeaways
- Threatening a judicial officer indirectly, through third parties such as prison officers, does not reduce the seriousness of the threat. The Court of Criminal Appeal confirmed that communicating such a threat through prison staff necessarily carries the expectation that authorities will act on the information and that the threatened person will be informed.
- A sentencing court does not err simply by finding deliberation and planning where the offender's own recorded admissions establish prior research, preparation, and a formed intention to offend.
- Where an appellant has repeatedly asserted his own sanity during police interviews, that assertion can legitimately complicate a later submission that mental illness should have been weighted more heavily in mitigation.
- Particular vulnerability of judicial officers in regional centres, who exercise their duties without the security infrastructure available in metropolitan courts, is a relevant aggravating consideration in assessing the seriousness of threats directed at them.
- In dismissing the appeal, the Court treated the aggregate non-parole period of two years and nine months as potentially lenient, signalling that the sentence overall was at the moderate end of what the circumstances warranted rather than the severe end.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 93Q, 326
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases:
- Cowan v R [2015] NSWCCA 118
- Linney v R [2013] NSWCCA 251
- R v Engert (1995) 84 A Crim R 67
- R v Jaques [2002] NSWCCA 444
- R v Linney [2012] NSWSC 1564
- Turner v R [2016] NSWCCA 44
- Veen (No.2) [1988] HCA 14; (1988) 164 CLR 465
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460