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District Court 5 February 2021

R v Korat

[2021] NSWDC 29

Public order & justice offences

Citation: R v Korat [2021] NSWDC 29
Court: District Court of New South Wales
Date: 5 February 2021
Judge: Bennett SC DCJ

Background

The offender pleaded guilty in the Local Court to a single charge under s 474.16 of the Criminal Code Act 1995 (Cth): using a carriage service to make a hoax threat. The offending occurred on approximately 26 March 2019 at Newcastle, when the offender used a mobile phone to send a communication falsely claiming that an explosive device had been left on Singapore Airlines flight SQ423. The maximum penalty for the offence is ten years' imprisonment.

The hoax triggered the deployment of military fighter jets in response to the reported threat. The offender was committed to the District Court for sentence after entering his guilty plea below.

A significant feature of the sentencing proceedings was the offender's history of chronic alcoholism, which he had developed before the offending occurred. The sentencing judge was asked to consider the extent to which that condition mitigated his moral culpability.

  • Whether the offending sat at the lower end of objective seriousness, as submitted on behalf of the offender, or at the mid-range
  • Whether the offender's chronic alcoholism reduced his moral culpability, and how that factor should be weighed against the gravity of the conduct
  • What weight, if any, could be given to statements made by the offender to report authors, where the offender had not given evidence in the proceedings
  • Whether the appropriate sentence could be a non-custodial outcome
  • The correct approach to sentencing a federal offender in a State court, including the application of the Crimes Act 1914 (Cth)

Decision

Bennett SC DCJ assessed the offence as sitting at the mid-range of objective seriousness. The defence submission that it fell at the lower range was rejected. The judge noted that the hoax prompted the deployment of fighter jets and that this response was clearly necessary in the circumstances, reflecting the real disruption and public risk the conduct caused.

On the question of moral culpability, the judge accepted that chronic alcoholism was a relevant mitigating factor, consistent with the principles discussed in Tepania v R, Muldrock v The Queen, and Munda v State of Western Australia. However, the judge found that the offender had not been raised in an environment where alcohol abuse was common. His alcohol misuse developed later, as a response to personal difficulties, and had to be balanced against the seriousness of the offending through the process of intuitive synthesis described in Markarian v The Queen.

The judge addressed the use of hearsay material in pre-sentence reports with care. Because the offender had not given evidence, considerable caution was applied to representations attributed to him in those reports, consistent with R v Qutami and Imbornone v R. The judge made clear that the offender's choice not to give evidence was not held against him beyond the circumspection those authorities require.

A custodial sentence was imposed. The submission that the matter should be resolved without imprisonment was rejected. A 25% discount was applied for the early guilty plea, and the resulting sentence was rounded down to two years, structured under s 20(1)(b) of the Crimes Act 1914 (Cth) with a conditional release mechanism rather than a formal non-parole period.

Orders Made

  • The offender was convicted of the offence under s 474.16 of the Criminal Code Act 1995 (Cth)
  • A sentence of 2 years' imprisonment was imposed, commencing 4 February 2021
  • Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender is to be released after 12 months (on 3 February 2022) on condition that he enter into a recognisance to be of good behaviour for 3 years
  • The recognisance is in the sum of $5,000

Key Takeaways

  • The District Court placed the hoax bomb threat offence at the mid-range of objective seriousness, rejecting the submission that it belonged at the lower end, particularly given the deployment of military aircraft in response.
  • Chronic alcoholism can reduce an offender's moral culpability, but the sentencing court must weigh that factor against the gravity of the conduct through a process of intuitive synthesis rather than mechanical reduction of the sentence.
  • Where an offender relies on personal circumstances through reports rather than by giving evidence, the sentencing court must apply considerable caution to statements attributed to the offender in those materials, consistent with the principles in R v Qutami and Imbornone v R.
  • Under s 20(1)(b) of the Crimes Act 1914 (Cth), a State court sentencing a federal offender may structure a sentence with conditional release rather than a formal non-parole period.
  • A 25% discount for an early guilty plea was applied and the sentence was rounded down, illustrating the practical operation of the intuitive synthesis methodology in federal offender sentencing.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 474.16
- Crimes Act 1914 (Cth), s 20(1)(b)
- Mental Health Act 2007 (NSW)

Cases
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- Munda v State of Western Australia [2013] HCA 38
- Veen v The Queen (No. 2) [1988] HCA 14
- Tepania v R [2018] NSWCCA 247
- Xiao v R [2018] NSWCCA 4
- Imbornone v R [2017] NSWCCA 144
- R v Qutami [2001] NSWCCA 353
- R v Gambier [2009] QCA 138
- R v Cooney (Unreported, QLD District Court, Bowskill QC DCJ, 27 February 2017)
- R v Rosario (Unreported, WA District Court, Bowden DCJ, 22 March 2012)
- R v Siddiq-Conlon (Unreported, NSW District Court, Hock DCJ, 23 November 2012)
- Western Australia R v Stewart (Unreported, WA District Court, McCann DCJ, 3 May 2010)