R v Darren Linney [2012] NSWSC 1564

Supreme Court New South Wales

Medium Neutral Citation: R v Darren Linney [2012] NSWSC 1564 Hearing dates: 10 December 2012 Decision date: 14 December 2012 Before: Bellew J Decision: 1. For the offence pursuant to s326(1) of the Crimes Act 1900 the offender is convicted. 2. I find special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act. 3. The offender is sentenced to a non-parole period of 2 years and 5 months imprisonment, commencing on 4 May 2012 and ending on 3 October 2014, with an additional period of 1 year and 4 months imprisonment, commencing on 4 October 2014 and ending on 3 February 2016. 4. The total term is one of 3 years and 9 months imprisonment. 5. The offender will be eligible for release on parole on 4 October 2014 and his sentence will expire on 3 February 2016. 6. I record the fact that but for the plea of guilty, the total term would have been one of 5 years imprisonment. Catchwords: CRIMINAL LAW - offence of threatening judicial officer - threats of death - objective seriousness of the offending - where offender serving sentence of imprisonment in a different state to his family - need for general and specific deterrence - whether requirement for general deterrence reduced on account of the offender's mental state - full time custodial sentence the only alternative having regard to the nature of the offending - whether special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: 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; (2001) 34 MVR 160 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 Category: Sentence Parties: Regina Darren Linney - Offender Representation: L Lungo - Crown G Heathcote - Offender Director of Public Prosecutions NSW - Crown Proctor and Associates - Offender File Number(s): 2012/124787 Publication restriction: Nil

Judgment

INTRODUCTION 1On 5 October 2012 Darren Linney ("the offender") pleaded guilty to an indictment alleging an offence against s 326(1)(b) of the Crimes Act 1900 (NSW) in the following terms: "Between 10 April 2012 and 16 April 2012 at Sydney in the State of New South Wales did threaten to cause injury to Peter Lind Johnstone, a Judicial Officer, on account of a thing lawfully done to wit, a judgment delivered by the said Peter Lind Johnstone on 15 March 2012 in the District Court of New South Wales in the matter of King v Linney." 2The maximum penalty for an offence against s 326(1)(b) is imprisonment for 10 years. No standard non-parole period is prescribed.

BACKGROUND 3Before proceeding further, it is necessary for me to set out some matters of background. 4The offender originally pleaded guilty in the District Court to an indictment in the terms previously outlined, following which sentence proceedings commenced, and effectively concluded, before his Honour Judge King on 30 August 2012. It appears that at some stage shortly thereafter, a view was reached that in light of the nature of the offending and the identity of the victim, it was inappropriate that a Judge of the District Court sentence the offender. 5By letter of 5 September 2012, the Director of Public Prosecutions wrote to the Chief Justice seeking permission pursuant to s 128(2) of the Criminal Procedure Act to present an indictment in this court. By letter of 12 September 2012 the Chief Justice informed the Director that he was prepared to grant that permission. 6The offender's first appearance in this court was before Barr AJ on 5 October 2012, at which time he pleaded guilty as set out in paragraph (1) above. The matter was then listed before me for sentence on 9 November 2012. 7After the matter was referred to me, I received a report of Dr Scott Clark, Psychiatrist, of Justice Health. That report was addressed to the District Court, and although it was dated 13 September 2012, I did not receive it until 26 October 2012. Judge King had apparently ordered this report, the offender's representatives not having qualified a Psychiatrist. It was evident from the second last paragraph of Dr Clark's report that because of the absence of material which he considered relevant to his assessment, he was not able to come to any final opinion about the offender's mental state. He recommended that a further report be prepared once he had been given access to some additional material. 8In these circumstances, I vacated the sentence date of 9 November 2012, and ordered that Dr Clark provide a further report. The necessary material to enable him to do so was subsequently provided by the offender's representatives and the matter came before me on 10 December 2012. 9On that day I granted leave to the Crown, pursuant to s 20(2) of the Criminal Procedure Act, to amend the indictment by deleting the date of 16 April 2012 and substituting, in lieu thereof, the date of 28 April 2012. This amendment was made in circumstances where the matter had, at all times, proceeded on the basis that the relevant offending ceased on the latter date. 10It should be noted that amongst the material tendered before me on sentence was an extract of the evidence given by the offender, and by his partner Ms Tanya Morris, before Judge King. Ms Morris gave some additional oral evidence before me, but the offender did not. I have therefore not had the advantage, enjoyed by Judge King, of observing the offender give evidence.

THE FACTS

The District Court proceedings involving the offender 11A statement of facts was tendered to the court without objection. Those facts may be summarised as follows. 12In 2003, Brendan Murphy, Wendy King and their children were living at a property at Emerald Beach in northern New South Wales. In about November of that same year, the offender, Ms Morris, and their children, moved into premises adjacent to those of Mr Murphy and Ms King. For the following 18 months there was a cordial relationship between the two families. However that relationship subsequently soured, following which Mr Murphy and Ms King sold their premises and moved to another location. 13After their relocation, Mr Murphy and Ms King brought proceedings in the District Court against the offender and Ms Morris claiming damages for nuisance, defamation and personal injury. The hearing of those proceedings commenced on 6 February 2012 before his Honour Judge Johnstone and continued until 22 February 2012. In a judgment delivered on 15 March 2012, Judge Johnstone found in favour of Mr Murphy and Ms King, and awarded them damages totalling $189,074.60. 14Neither the offender nor Ms Morris were present in court at the time of the judgment being delivered, the offender having previously informed Ms Vicky Bethel, Judge Johnstone's Associate, that he did not wish to attend. After the judgment was handed down, Ms Bethel sent an email to the offender, attached to which was a copy of the judgment, together with details as to further orders which had been made in relation to costs. 15After she had sent the email to the offender, Ms Bethel received a reply in which the offender made a number of derogatory remarks, about both the judgment and the Judge. Ms Bethel informed Judge Johnstone of the email and placed a hard copy of it on the court file. She also replied to the offender, informing him that Judge Johnstone had no further function to perform in relation to the case.

The first e mail 16At 8.30 am on 10 April 2012, an email was received at the New South Wales Police Force Customer Assistance Unit from the offender. It is necessary for me to set out that email, which was the first in a series of 3 emails sent by the offender, in its entirety: "Dear Sir, I am writing this letter to personally thank you and your team of incompetence (sic) that refused to helpme (sic) in a various amount of complaints due to the actions of my old neighbours. I am now bankrupt and loosing (sic) my home, relocating my kids to the 3rd school and area to live. I will now state exactly what I was threatened with. "I'M GONNA SORT YOU OUT CUNT". By my neighbour and his no show witness. Remember Judge OPAS. The next is Judge Jonestone (sic) of the District Court (emphasis added). That is unless you investigate my complaint. As this clown stated in court the actions I complained were mearly (sic) dreams. Even though I had clear cemented evidence. Only that I was self represented after 4 years of stupid court dribble and the lawyers of the old neighbours. Sorry, also blatantly friendly with my neighbours lawyer and needing help to judge the case. A bullet in his head for him would not be a dream (emphasis added). See how those dictating the law like the same of that in which I am making complaint. Threats - abuse - damage to our property - pet dogbaited. And as stated by the Judge - "SO WHAT IF HE ENTERED YOUR YARD WHEN YOU WERE NOT THERE AND REMOVED YOUR PROPERTY". Does this mean I can enter his and your property. I do believe so. This is intranscript (sic). I will be tracking all involved places of residence and see the standards equal between all. That is fairness and unbias. Agree? I will track these people down and conduct ALL acts on them that my old neighbours did. NO DOUBLE STANDARDS. Please take me seriously (emphasis added). All I have worked for is gone due to the failure of the police. That includes you, if again, you refuse to help. Are you wanting to join my list. Don't think this is a joke (emphasis added). Have the spine to talk to me and not send some letter written by one of your assistant's (sic) Thank you".

17The reference in that email to "Judge Opas" was, obviously, a reference to the Hon. Justice David Opas. It is a matter of public record that in 1980, at a time when he was a Judge of the Family Court of Australia, Justice Opas was shot and killed at his home by an unidentified gunman.

The second email 18On Monday 16 April 2012, 6 days after the email sent to the police, Ms Bethel arrived at work to find that she had received an email from the offender which had been sent at 8:23am on Saturday 14 April 2012. The terms of that email were as follows: "Judge Johnstone. You completely fucked up a judgement and walk away with clean hands. You pathetic piece of shit. Your bias and blatant friendly nature with Bates was evident. Do you fuck each other faggot. Does he fuck you. Remember I can say these things because according to you my recollection of events were a dream. All you did was cut and paste their documents. Good paid bribes from legal companies hey faggot. You could not have made it more evident. You asked Bates for assistance. You stated you needed to study up on Defamation. How desperate are the courts. To utilise an incompetent and corrupt faggot like you to judge in area's (sic) you have no idea. Pathetic. Just for your information I now have evidence on where you live. Great. I now CAN enter your property, remove or destroy anything and not be accountable (emphasis added). No double standards, right you dirty piece of shit. These acts were conducted by the Plaintiff's (sic) and your corrupt judgment has ruined not only my life but destroyed opportunities for my 3 children. REMEMBER JUDGE OPAS. YOU SHOULD JOIN HIM (emphasis added). I WILL NOW DO THE SAME TO YOU (emphasis added) and once I know Bates address do and conduct the same acts that of which the plaintiff's DID to me, my partner and our property. Not to mention poisoning an animal, our family pet. What a well organised scam we suffered. You fuckwits are the criminals. High paid criminals. You being such an incompetent and corrupt judge and a faggot should be wasted (emphasis added). You should never in any circumstance have personal connection with people to make judgement (sic). Faggots like you who sit behind protected doors have no idea. Evidence was given to you and you failed. Maybe you should start digging your own hole. You will rot in hell much quicker and earlier than you anticipate (emphasis added). Your a complete cunt. Can't wait to see your arrogant faggot face. At close rang (sic) at your house (emphasis added). Lets see your values then, you dirty sleazy faggot. YOU FAILED IN YOUR DUTY AND NOW YOU MUST PAY FOR YOUR ACTIONS (emphasis added). YOU WILL SUFFER THE SAME ACTS THAT WAS PUT TO US. PLEASE ENJOY THEM JUST LIKE WE DID'NT (sic). IN OUR SO = CALLED DREAMS. EVEN YOUR FAGGOT SPINELESS SUPERIOR MANNERISMS WERE HIGHLIGHTED WHEN YOU TURNED AWAY WHEN I DELIVERED MY DEFENCE. REVIEW THE TRANSCRIPTS AGAIN AND YOU, ANOTHER JUDGE OR ANYONE WITH MINIMAL KNOWLEDGE WILL IDENTIFY MY COMPLAINT AND COMPLETE LACK OF RESPECT TO A FAGGOT LIKE YOU WHO HAS NOT, AND DID NOT DO A JOB PROFESSIONALLY AS PER REQUIRED" (my emphasis in each case). 19I should note that the references to "Bates" are references to counsel who appeared for Mr Murphy and Ms King in the proceedings before Judge Johnstone.

The third e mail 20On 28 April 2012, Ms Bethel arrived at work and found a further email sent by the offender, the contents of which were in the following terms: "Maggot, you are still hiding behind your little circus wall. This proves you can fuck peoples (sic) lives and walk away. JUST TO LET YOU KNOW I WILL NOT DISAPPEAR. NOT UNTIL YOU DIE. YOUR (sic) NOT GOING TO KEEP DOING THIS TO NOT ONLY ME BUT OTHERS (emphasis added). You failed to look at given evidence of proof. You took the easy way out to assist your faggot mates you fuck within this corrupt legal system, a faggot like you dictates. I end up with nothing to show for my life due to leaching corrupt maggots like you. NICE HOUSE YOU HAVE MAGGOT. IM GLAD YOU WON'T GET TO ENJOY IT MUCH LONGER. WHAT GOES AROUND COMES AROUND. YOU FUCK PEOPLES (sic) LIVES - THEY FUCK YOURS, MAGGOT" (emphasis added). 21Following the third email, the offender was arrested in Queensland, where he was living at the time on 4 May 2012. He has been in custody, solely in respect of this matter, since that time.

The statement of Judge Johnstone 22 Part of the material tendered by the Crown was a statement from Judge Johnstone. I have set out parts of that statement further below. Unsurprisingly, and with ample justification, his Honour expressed considerable concern for his own safety, as well as the safety of his family, after being shown the emails.

The evidence of the offender 23As I have noted, an extract of the oral evidence given by the offender and Ms Morris before Judge King was tendered before me. 24The offender told Judge King that upon receiving the judgment of Judge Johnstone he felt "gutted" and that, as a consequence of the judgment, both he and Ms Morris had been declared bankrupt. The effect of his evidence was that it was a combination of these circumstances which caused him to send the three emails. 25In evidence in chief, and when asked about the references made to Justice Opas the offender said: "I just remember it in the news because it was pretty thing in the 80's, and then I'm well aware of there was another one where a judge or his family were hurt in Belrose - I'm sure it was in the Belrose area because that was the way I used to travel to where I was employed as an apprentice." Q Now there's reference, certainly very clear implication in those emails as to knowing the houses of (Counsel for the other party) and his Honour Judge Johnstone. Do you in fact know where either of those persons live? A I have no idea where either of them live. I made that quite clear even talking to the police. It was just the sheer frustration of what had happened with our house or our life. Q The threats you made are very grave, are very serious threats. What do you say about making those threats now? How do you feel about what you did? A I regret it big time, they were brainless. Yeah, I regret it. Q Putting yourself in their shoes and you it caused some concern? A It would - yeah, obviously its going to concern them. I would probably no doubt feel the same, but its all through sheer frustration in my head of what has progressed in the last 7 years. Q You know there's a proper way to deal with things when you're not satisfied with something that happens in your life, don't you? A In the mental side of things and the use of the police as well. Q Do you apologise to his Honour Judge Johnstone? A Big time. Q To his Honour's Associate who was a person who was actually addressed - the emails were addressed to, Ms Bethel. Do you apologise to her? A I would like to, yes. Q What about (counsel for the other party)? A If its got to be in written format or face to face I'm quite willing to do so. Q Did you ever have any intention to carry out any of your threats? A Not whatsoever, for what I've lost already. 26In relation to the second email, in which the offender had told Judge Johnstone that he would "rot in hell much quicker" he said: "I wanted him to feel how I had been feeling. What I have felt like. What our neighbours had concocted to get me into court. They told me what their actions were going to do. They dug a hole and basically I fell in it. I had no intentions, I have no intentions, I will never have any intentions of hurting (Counsel for the other party) or Judge Johnstone or any other person..."

THE CIRCUMSTANCES OF THE OFFENDING 27 Counsel for the offender submitted that the starting point of any assessment of the objective seriousness of the offending was a recognition of the circumstances in which it occurred. In this regard, Counsel referred to the fact that the second and third emails were sent by the offender on a Saturday, at a time when the offender was away from his family as a result of his work, and where he had been "stewing" about the outcome of the proceedings before Judge Johnstone and the financial ramifications which had resulted. 28A testimonial provided by the offender's partner, Ms Morris, contained the following observations which are relevant to the background of the commission of the offence: "In December 2009 Darren suffered a nervous breakdown due to the long litigation (since 2007) - King v Linney (2008/289190) and financial costs. As a result of the breakdown I continued to witness Darren suffering from stress, sleepless nights and depression. Darren started taking anti-depressant medication during this time. On a positive note, Darren decided to stop drinking alcohol and has been successful in doing so until this day. Darren continued to suffer his depression when the judgment (King v Linney 2008/289190) was delivered in April 2012 via email. The reality of losing the case, the family home to bankruptcy and some possessions was taking a toll on him, including working away from his family in the mines (Western Australia and Mackay in Queensland) to fund the legal costs." 29Ms Morris gave similar evidence on oath before Judge King, which was not the subject of any serious challenge. 30Counsel submitted that the outcome of the proceedings before Judge Johnstone had affected the offender greatly, and had played a significant role in his decision to send, in particular, the second and third emails. Counsel also relied upon the offender's evidence before Judge King that he had acted out of "frustration". 31It is inevitable that an unsuccessful litigant will be affected in some way by the adverse outcome of litigation to which he or she is a party. As a matter of common sense, he or she is bound, at the very least, to be disappointed. He or she might well be frustrated, as the offender maintained in his evidence before Judge King was the case here. In civil proceedings such as those to which the offender was a party before Judge Johnstone, it is unfortunately sometimes the case that an adverse outcome may be to the financial detriment of the unsuccessful party. 32Whilst these circumstances, and those referred to by Counsel as forming the background of the offending in the present case, might go some way to explaining the context in which such offending occurred, under no circumstances can they excuse such offending, much less justify it. No amount of disappointment, no amount of frustration with the judicial process, and no financial consequence however significant, could ever excuse or justify conduct of the kind in which the offender engaged in this case. 33Two of the testimonials before me, namely that of Ms Morris and another of a Mr Parks, expressed the view that sending the emails was just the offender's way of "venting". Ms Morris expressed the matter in this way: "As I have known and lived with Darren for 15 years I can purely say the emails he had written was his way of venting and had no intention of carrying out the threats. After speaking to Darren he stated all he wanted was someone to look into this case and wishes he did not write those emails. I believe he has shown remorse for what he has done and I continue to support him in this matter." 34A description of the offender's conduct as being "his way of venting" is, in my view, a wholly inapposite categorisation of what he actually did. To effectively dismiss the offender's conduct as amounting to nothing more than "venting" is to overlook the reality of what occurred and to completely ignore the vile, contemptible and confronting terms in which the emails were expressed. 35Counsel for the offender submitted that the offending was not planned or pre-meditated, and the Crown did not suggest otherwise. Whilst I accept that this is so, it is equally the case that the offending could not, in my view, be properly regarded as spontaneous. In this respect, one needs only to have regard to the fact that there were three separate emails sent by the offender, over a period of some weeks. 36Counsel for the offender, whilst acknowledging that an offence under this particular section is complete upon the making of the threat, placed some emphasis on the offender's evidence before Judge King that despite the terms of the emails, the offender did not, at any time, intend to carry out the threats that he had made and further, that he in fact did not know where Judge Johnstone lived. Counsel correctly observed that the offender's evidence in this regard was not challenged by the Crown who appeared before Judge King (whom I note was not the Crown who appeared before me). 37The offender's evidence before Judge King that he had no intention to carry out the threats he made would seem to be at odds with his edict in the first email to "take him seriously". Although there was no specific statement in the second and third emails (they being those sent to Judge Johnstone's Associate) to a similar effect, the general tenor of those emails, which included references to "doing the same" to Judge Johnstone as was done to Justice Opas, would leave a recipient in little doubt that the threat was genuine. There is certainly nothing in the second and third emails to suggest that the threat would not be carried out. On the contrary, the terms in which the threats were expressed gave every indication that they would. 38I am, for the reasons previously outlined, at somewhat of a disadvantage in not having been able to observe the offender when he gave that evidence. In circumstances where there was no direct challenge in cross examination in relation to this issue, I am not satisfied that the offender intended to carry out the threats that he had made. Equally, having regard to the evidence of the emails themselves, I cannot be satisfied that he did not. The evidence simply does not allow me to reach a definitive conclusion in relation to this issue. 39In any event, and as Counsel properly conceded, it is the making of the threat which constitutes the offence. It is unsurprising that in the present case, the threats made by the offender, and the stark terms in which they were expressed, caused Judge Johnstone to immediately fear for the safety of himself and his family. That much is clear from the statement of Judge Johnstone which was tendered before me and which contained the following: "The contents of the email sent by Mr Linney to my Associate have caused me extreme concern. It is not so much the personal abuse, it is the threats. In particular, the reference to Justice Opas and an insinuation that Mr Linney knows where I live, and he is proposing to come to my house, have been particularly upsetting". 40Judge Johnstone had an obvious concern, stemming solely from the contents of the emails, that the threats might well be carried out. He was not to know that the offender may not have intended so doing. Irrespective of whether the offender did or did not intend to act upon the threats, the emotional harm to his Honour consequent upon such threats being made was clearly substantial. That is an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act ("the Sentencing Act"). 41In terms of other statutory aggravating factors, the Crown has submitted that although the victim was a judicial officer (s 21A(2)(a) of the Sentencing Act) and although the offence involved the threat of violence (s 21A(2)(b) of the same Act), both of those matters are elements of the offence and therefore should not be taken into account as factors which further aggravate the offending. I accept that submission. 42Counsel for the offender also submitted that I should find that the offender had a "lack of insight in not appreciating the seriousness of the offence". As I understood the submission, that lack of insight was said to stem from the fact that the offender did not intend to carry the threats into effect. The evidence in support of this submission included a statement of Ms Morris to Dr Clark, which appears in the second of Dr Clark's reports, to the effect that she "did not think that (the offender) knew that writing to the Judge as he did was serious". 43Having accepted that the report of Dr Clark accurately recorded what she had said, Ms Morris gave the following evidence before me: "HIS HONOUR Q What makes you think that your partner did not think that this was serious? A I just - the way that he - when I ask him why from the beginning, why did you do it, he just said: I just wanted to get it looked into, and it was just his way of getting their attention. Q You would appreciate, would you not, that there are ways of getting people's attention without threatening them? A Definitely." 44I do not accept the submission that the offender lacked an appreciation of the seriousness of the offending at the time at which he engaged in it, nor do I accept the views expressed by Ms Morris to Dr Clark. What the offender did, in blunt terms, was threaten a judicial officer with death. He did so in terms that were specific, stark and chilling. In my view, even when full regard is had to the offender's psychiatric issues (to which I have referred in more detail below) it is inconceivable that he lacked an appreciation of the seriousness of his conduct. 45I am fortified in that view by evidence given by the offender before Judge King. In the course of being cross examined, and having reiterated that he did not have any intention of carrying out the threats which he had made, the offender gave the following additional evidence in response to a specific question from Judge King: "HIS HONOUR Q But what the Crown is really asking you is this, did you intend by making that comment "remember Judge Opas, you should join him" that the Judge would interpret that as being a threat to his life. A He could do your Honour. Q Not that he could do, the question is, was that your intention to convey to him a threat to his life by referring to - - A I would have to say yes if you read it in that context, your Honour." 46It is clear that in sending the emails, and quite apart from their terms, the offender intended to convey, to Judge Johnstone, a threat to his life. He intended that Judge Johnstone would interpret what had been written in that way. I reject the submission that in circumstances where the offender had that intention, he was not aware of the seriousness of what he was doing. I am satisfied that it was obvious to the offender at the time that such conduct was of the utmost seriousness. 47Before the court is a pre-sentence report which includes the following statement under the heading "Attitude to the offence": "The offender admitted that he sent the emails, however disputed the exact wording of the emails as contained in the Police Fact Sheet. He acknowledged that his actions were "stupid". However he appeared to minimise the seriousness of the offence, stating "what could I have done, I was over 1000km away" as well as questing (sic) the integrity of the victim of the offence". 48Further Dr Clark, in his first report, recorded that the offender had said that his offending was "stupid and impulsive". 49For the reasons I have already expressed, it is my view that the offender's actions were not impulsive. In terms of the offender's categorisation of his actions as "stupid" the Crown submitted, and I accept, that any such categorisation grossly understates the seriousness of what occurred. It also reflects a failure on the part of the offender to fully and properly acknowledge the seriousness of his actions, an issue which I have considered further below. 50Counsel for the offender submitted that the objective seriousness of the offending was "mid range, if not a little above". The Crown submitted that it was further towards the high range. 51The offending was not isolated. It extended over a period of time. Any further comment about the nature and terms of the threats which were made would be superfluous. They were, in my view, carried out by the offender in full knowledge of the seriousness of his actions, and with an intention to convey to Judge Johnstone that his life was under threat. 52There is necessarily a wide range of threatening behaviour encompassed by the section which creates the offence. Towards the higher end of the scale such behaviour might include, for example, a face to face threat made with the use of a weapon. At the lower end of the scale, the behaviour might manifest itself in a spontaneous threat of harm, as opposed to death. 53The objective seriousness of the present offending falls somewhere between those two extremes. In my view, taking into account all of the matters to which I have referred, it falls above the mid range.

THE OFFENDER'S SUBJECTIVE CASE

General considerations 54Included in the material tendered by the Crown were the two reports of Dr Clark which were prepared in the circumstances I have previously outlined. A number of matters relating to the offender's background may be drawn from those reports. 55The offender is 46 years old. He has been in a relationship with Ms Morris for the past 15 years and together they have three children, aged 11, 9 and 7. In the course of her evidence before Judge King, Ms Morris explained that her 7 year old son has a cleft pallet condition which affects his speech. As a consequence, he is required to undergo speech therapy, as well as therapy to develop his fine motor skills. According to the history provided to Dr Clark, the offender's eldest son has recently been diagnosed with Attention Deficit Hyperactivity Disorder, for which he has been prescribed medication. Ms Morris also gave evidence before Judge King that she is studying a Diploma of Nursing and that the offender's incarceration had caused her to postpone her studies, as there is no other person who can care for her children. 56Hardship to the family of an offender is an unavoidable consequence of a custodial sentence. Before a court may take such a matter into account on sentence, the hardship must be of a kind which is regarded as exceptional (see for example R v Edwards (1996) 90 A Crim R 510; T v R (1990) 47 A Crim R 29.). Counsel for the offender did not submit that the hardship in the present case fell into the exceptional category. I am satisfied that it does not. 57The offender has had various forms of employment in his working life. In particular, he was employed during the 3 years leading up to the commission of the offence as a Boilermaker in the mining industry, a position which apparently required him to be absent from his family for weeks at a time. He has, generally speaking, a good work history. 58Before the court is an undated document under the hand of Patrick Mather from UGL Resources (Services) Limited whom I understand to be the offender's former employer in Mackay. That document is in the following terms: "On Darren's resignation from UGL the assessment was that we would be happy to rehire him should future opportunities arise". 59I should observe that the document is silent on the question of whether or not the offer to rehire the offender remains open in light of his commission of the present offence.

The location of the offender's family 60The offender's partner Ms Morris, who resides with her children in Queensland, gave evidence before me that because of both geographical and financial considerations, she had not been able to visit the offender since he was taken into custody in May of this year. It was submitted to me that this was a mitigating factor, and one which rendered the fact of custody more harsh for the offender than would be the case if he were living in the same location as his family. 61Such a proposition was considered by the Court of Criminal Appeal in R v Chaaroui (CCA (NSW) unreported 4 November 1994) where Gleeson CJ (with whom Badgery-Parker and Bruce JJ agreed) observed: "That the applicant is a resident of Melbourne is not a matter which ought to have produced any different result from that imposed by the sentencing judge. Even taking account of that matter, it seems to me that the sentence imposed was entirely appropriate and the consideration referred to would not warrant a lesser sentence". 62I do not understand his Honour's observations to suggest that the question of geographical location is irrelevant, but rather that such a factor did not impact upon the appropriateness of the sentence which was imposed in that particular case. The fact that it did not impact on the sentence in that case does not mean that it is an irrelevant consideration. 63More recently, in Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145, a sentencing Judge had applied a 25% reduction in the minimum term of imprisonment on account of the fact that the offender was required to serve a sentence in Victoria when his family was resident in New South Wales and that, as a consequence, any term of imprisonment would be more burdensome for him. It was conceded by the Crown on appeal (at [43]) that the location of the offender's family vis a vis the location at which he was to serve his custodial sentence was a relevant factor to be taken into account. However, the Crown argued that the reduction of 25% which was applied in that case was excessive. The Victorian Court of Appeal certainly agreed with the second of those propositions, and did not express any disagreement with the first. 64In these circumstances, I take the view that the matters advanced by counsel for the offender should be taken into account in the offender's favour, and I have done so.

Delay 65It was also submitted that the circumstances in which the matter had come to be finalised in this court had resulted in some delay which should be taken into account. In particular, it was submitted that at a time when the offender was about to be sentenced by Judge King, the proceedings were referred to this court in the circumstances I have previously outlined. There is no evidence before me in relation to the impact that this has had upon the offender, but it was submitted that the delay in not knowing the outcome of the proceedings had a generally stressful and unsettling effect. 66I accept that the circumstances of this case are, in this particular respect, a little unusual. However, whilst there has been some delay in the finalisation of the matter following the offender's appearance before Judge King, the proceedings have moved relatively quickly to finality. I have had regard to the delay, but bearing in mind that it is on any view minimal, and in the absence of any evidence of its precise effect upon the offender, it is a matter which, in my view, is deserving of very little weight.

The plea of guilty 67There is no dispute between the parties that having been arrested on 4 May 2012, the offender pleaded guilty to the present offence in the Local Court on 26 June 2012, which was at the first available opportunity. 68In these circumstances I propose to apply a discount of 25% to reflect the utilitarian value of his plea (see generally R v Thomson; R v Houlton (2000) 49 NSWLR 383).

The offender's criminal history 69The offender's criminal history is limited to three entries. The first was in 1984, when he was fined $150.00 for an offence of malicious injury. The second was in 1990, when he was fined, and placed on a bond, in respect of two separate counts of common assault. The third was in 2006 when he was fined for destroying property. Whilst these matters might generally come under the heading of offences of violence, two of them occurred well in excess of 20 years ago. It was submitted on behalf of the offender that he fell into the category of a person who did not have any record of significant convictions, and the Crown did not argue against that conclusion. That is a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act. 70Counsel for the offender further submitted that in light of the testimonial evidence I should find that the offender was a person of prior good character. Whilst some of that evidence does seek, in the sense that I have previously described, to diminish the seriousness of the offending, it also attests to (inter alia) various personal attributes of the offender, which I accept. I have had regard to those matters in determining the appropriate sentence.

The offender's prospects of rehabilitation 71It is particularly difficult, in the circumstances of the present case, to come to a firm conclusion about the offender's prospects of rehabilitation, and the likelihood of re-offending. Counsel for the offender submitted that I would reach a favourable conclusion in relation to each of those matters. He pointed, in particular, to the offender's previous efforts in overcoming his alcohol and substance addictions, and the fact that he enjoyed the continuing support of Ms Morris. This, he submitted, was some evidence that the offender had the necessary resolve, and family support, to properly rehabilitate himself and not re-offend. Whilst there is some force in that submission, it must be balanced against a number of other factors. 72A particular concern stems from the offender's statements to Dr Clark, at the time of Dr Clark's examination of him on 8 September last, which Dr Clark recorded in the following terms: "Mr Linney told me that he intends to seek further legal advice and wishes to prosecute the Judge, the Police, and his neighbours. He said that he wants a re-trial of Judge Johnstone's findings. He said to me 'the outcome needs to be deleted and a retrial needs to occur at the State's cost'. He said that if this was not achieved he would take his story to the media". 73Counsel for the offender pointed out that it was the right of every citizen to seek legal advice if he or she wished to do so. Whilst that it undoubtedly correct, it is evident that in telling Dr Clark that he intended to seek such advice, the offender expressed a clear desire to take matters further. In light of the particular offending which gives rise to the charge, that expression of desire tends against a finding that the offender's prospects of rehabilitation are favourable, and that he is unlikely to re-offend. A further concern stems from the contents of the pre-sentence report, to which I have previously referred, where it was observed that the offender not only appeared to minimise the seriousness of his actions but questioned the integrity of Judge Johnstone. 74In his most recent report, Dr Clark, having interviewed Ms Morris, reported as follows: "Ms Morris described her current circumstances as difficult in relation to their living situation and separate from Mr Linney. She believes that they have to give up any further legal or other action in relation to what has occurred and 'move on'". 75That, of course, was a statement of the views of Ms Morris and there was at that time no indication that such an approach was shared by the offender. However, Ms Morris gave evidence before me that although she is not in a position to visit the offender, she speaks with him regularly by telephone and that he has spoken about "moving on with his life". I accept the evidence of Ms Morris that such statements were made by the offender. However, those statements do not sit comfortably with statements made by the offender to Dr Clark and the author of the pre-sentence report only a matter of months ago. Wanting to "prosecute" Judge Johnstone (as Dr Clark reported) and continuing to question his integrity (as the author of the pre-sentence report noted) are, in my view, the antithesis of "moving on". 76In his second report, to which I have referred in more detail below, Dr Clark's conclusions included the following: "Mr Linney has expressed a conviction that injustice has been done to him and that this needs to be righted through further action on his part. It is possible that these views may have moderated in the intervening period, however I remain concerned for Mr Linney's condition should he continue to pursue these matters, or the individuals involved, for recompense or restitution". 77Clearly, this was a reference to the earlier statements made by the offender. In fairness to the offender, it should be pointed out that for reasons beyond the control of each of them, Dr Clark was not able to interview the offender prior to the preparation of his most recent report, and was thus not given the opportunity to determine whether the views which had previously been expressed by the offender had altered in any way. 78It is also of some significance, in light of the final opinion of Dr Clark more fully set out below, that the offender told the author of the pre-sentence report that he proposed to cease his medication regime when released from custody. When giving evidence before Judge King the offender sought to distance himself from that comment by explaining that although he had a dislike of drugs of any kind, he would comply with any medication regime which might be imposed as a condition attaching to his release. The offender was not asked about his intention to observe any medical regime which was put in place independently of any such condition. Once again it is difficult, in circumstances where that evidence was not given before me, to make a proper assessment of it. The statement recorded by the author of the pre sentence report about the offender's cessation of his medication remains of obvious concern. 79In my view, the offender's prospects of rehabilitation are largely dependent upon him abandoning the intentions he originally expressed to Dr Clark about pursuing various matters associated with the earlier proceedings, adhering strictly to any medication regime which might be put in place for him and undergoing psychiatric review. On the evidence before me, significant issues arise at least as to the first and second of those matters. In these circumstances, I am not able to come to any positive conclusion about the offender's prospects of rehabilitation or his likelihood of re-offending.

The offender's remorse 80It was submitted on behalf of the offender that I should find that the offender had exhibited remorse within the meaning of s 23A(3)(i) of the Sentencing Act. That section provides that remorse shown by the offender is a mitigating factor only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions; and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 81I have already noted those parts of the pre-sentence report in which reference is made to the offender attempting to minimise his offending, categorising his actions as "impulsive and stupid", and questioning the integrity of Judge Johnstone. All of these matters, it seems, caused the author of the report to express the following view: "Whilst the offender acknowledged the commission of the offence, it would appear that he has failed to accept the gravity of his actions". 82The offender was taken to this material when giving evidence before Judge King. In the course of a long, discursive and at times non-responsive answer, he told the court that the opinion of the author of the pre-sentence report was "that person's assumption of analysing (him)". 83There were, however, parts of the evidence of the offender before Judge King which in my view are capable of providing support for the conclusion that, notwithstanding his expressed apology, he has failed to accept the gravity of his conduct, and has shown no genuine remorse. For example, when it was put to him that that part of the second email of 28 April 2012 which stated "I will not disappear, not until you die" was a serious statement, the offender replied: "It depends on how you define it too ..." 84That failure on the part of the offender to accept the obvious seriousness of what he had said in that email was compounded by the fact that he proceeded, in the same answer, to openly criticise what he considered to be a lack of courtesy and respect shown to him by Judge Johnstone when the proceedings were before him. The offender's evidence in this respect was, in my view, at odds with genuine remorse. 85The testimonial provided by Ms Morris made reference to her view that the offender had expressed "remorse". When asked by the Crown, in cross examination before me, what led her to form that view, Ms Morris said: "He tells me he wishes he never wrote those letters, emails, and that he has sorry that he has done it. Q Has he ever mentioned to you anything about the Judge himself, about his feelings about the Judge? A No" 86I accept that the offender may well wish that he had never engaged in the conduct that brings him before the court. However, it is important that what is, in reality, little more than an expression of regret is not elevated to an expression of genuine remorse to which s 21A(3)(i) is directed. 87On the whole of the evidence, I am not satisfied that the offender has shown the genuine remorse to which the section is directed.

The offender's mental state 88Leaving aside the statutory mitigating factors, the offender's mental state is a matter of some significance in determining an appropriate sentence. 89The evidence establishes that on 23 July 2012, that is after the offender had been taken into custody, he was commenced on anti-depressant medication, the dose of which was subsequently increased. He continues taking that medication. He has a history of stimulant and alcohol abuse, although on the history provided to Dr Clark the offender was, to his credit, able to overcome both of those addictions. The offender told Dr Clark that his mental health problems began in the context of conflict with his former neighbour and that as a consequence he had, prior to the commission of the offence, been prescribed anti-depressant medication and had been referred to a psychologist. 90Because of the paucity of information which had been available to him, Dr Clark was only in a position to express a preliminary opinion following his initial examination of the offender. He concluded that the offender exhibited a persecutory and paranoid thought process. Dr Clark expressed concerns for the offender's condition, particularly in the event that the offender chose to pursue the matters he had foreshadowed as set out in paragraph [72] above. Dr Clark recommended that the assessment be completed in circumstances where the offender's psychiatric history could be considered in more detail, and an opportunity provided for Dr Clark to speak with Ms Morris. 91In his second report of 7 December 2012, Dr Clark, having spoken to Ms Morris, and having reviewed the notes of the offender's psychologist, expressed the following opinion: "Mr Linney has evidenced a paranoid and persecutory demeanour concerning the Police and others who he perceives as not meeting his expectations or openly deceiving or undermining him. There is evidence that this may in part be related to his experiences in his childhood and adolescence with a domineering and deceitful father, who in Mr Linney's eyes never suffered any consequences for the pain his behaviour caused Mr Linney and his mother. From the information available, I consider it less likely that Mr Linney has a paranoid (psychotic) disorder, but there is evidence of personality problems of a paranoid nature, and he appears to be highly vulnerable to loss and abandonment. His abstention from alcohol or other drug use is positive, and other strengths include the support of his partner, a strong family bond, and a good work history. I recommend that he continue to avoid drug or alcohol use as this could exacerbate personality problems as well as depression. Mr Linney will benefit from psychiatric review and psychotherapy to assist him to deal constructively with his problems and manage his anger and frustration. He remains on antidepressant medications and, following further contact with a psychiatrist, the use of low-dose antipsychotic medication may be recommended". 92In R v Sharrouf [2009] NSWSC 1002 Whealy J (at [61]) observed that the presence of a substantial and chronic mental illness is relevant not only to an assessment of objective criminality, but also to a determination of whether or not the case is one that calls for a measure of specific or general deterrence. In making that observation, his Honour referred to a number of authorities, including R v Matthews [2004] NSWCCA 112. 93The nature of the offending in the present case is such that both general and specific are primary considerations. Even though there was considerable focus on the evidence provided by Dr Clark, no submission was advanced on behalf of the offender that his mental state was such as to render him an inappropriate vehicle for general deterrence, or to otherwise render general deterrence of less significance. Despite the fact that no such submission was advanced, and I having raised it, the Crown conceded that this was a case which attracted the application of the principles to which Whealy J referred. 94I am satisfied, for the reasons I have previously stated, that the offender was fully aware of the seriousness of his conduct. I accept the opinions of Dr Clark as to the offender's mental state. However, that is not to say that considerations of general and specific deterrence are of no relevance at all in the sentencing process. They certainly remain relevant, but are of less significance that might otherwise have been the case had the offender's mental state been different.

conclusion 95The parties referred me to the decisions in R v Jacques [2002] NSWCCA 444, R v Gaudry; R v McDonald [2010] NSWCCA 70 and R v Schaffer [2005] NSWCCA 193. I am grateful for the assistance provided by the parties in bringing those authorities to my attention. That said, facts of cases differ and it is my function to sentence this offender having regard to the evidence before me. I am mindful of the caution which must be exercised in engaging in comparisons between one case and another (see Lobsey v R [2012] NSWCCA 239 at [28] and the authorities cited therein). 96Having regard to the provisions of s 5 of the Sentencing Act, I must not sentence an offender to a term of imprisonment unless I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The seriousness of the offending in the present case was such that in my view, no penalty other than a term of imprisonment is appropriate. 97Counsel for the offender submitted that it would be open to me, if I came to that view, to suspend any such sentence pursuant to s 12 of the Sentencing Act. In support of this submission, Counsel referred to the offender's mental state and his need to continue treatment. Leaving aside the evidence to which I have referred, and which to some degree calls into question the offender's intentions in that regard, I am not prepared to take the course urged by counsel for two reasons. 98Firstly, the terms of s 12 apply only to terms of imprisonment which do not exceed two years. Having determined that no penalty other than a term of imprisonment is appropriate, I have determined that the appropriate term exceeds two years. 99Secondly, in the circumstances of the present case, the suspension of a term of imprisonment would, in my view, completely fail to properly reflect the seriousness of the offending. In R v Zamagias [2002] NSWCCA 17 Howie J (at [32]) observed that although the purpose of punishment is the protection of the community, that purpose can in some circumstances be properly served by a sentence designed to assist in the rehabilitation of the offender. At the same time, his Honour recognised that a suspended sentence is a significantly more lenient penalty than any other sentence of imprisonment. 100In my view, the objective seriousness of the offending in the present case is such as to render the suspension of any sentence of imprisonment inappropriate. It is important to bear in mind that in determining the appropriate sentence I must not give undue attention to the offender's subjective circumstances, to the point where such attention results in the imposition of a sentence which is not reasonably proportionate to the gravity of the offence to which he has pleaded guilty (see R v Dodd (1991) 57 A Crim R 349 at 354, cited in R v GWM [2012] NSWCCA 240 at [136] per Johnson J). 101It was submitted on behalf of the offender that in the event that I concluded that a suspended sentence was not appropriate, I should find special circumstances pursuant to s 44(2) of the Sentencing Act. One of the matters put in support of that submission was the fact that this is the offender's first time in custody. Considerable doubt has been expressed as to whether a subjective circumstance such as that, either of itself or in combination with matters such as an offender's age and lack of antecedents, can be properly elevated so as to constitute special circumstances. Care must be taken not to allow that to occur (see for example R v Kaliti [2001] NSWCCA 268; (2002) 34 MVR 160 per Wood CJ at CL at [9] - [12]; 161 - 162). 102However, I am prepared to accept the submission made on behalf of the offender, which was supported by the Crown, that I should find special circumstances pursuant to s 44(2) of the Sentencing Act so as to allow a longer period on parole. I have come to that view having regard to the evidence of the offender's psychological state, and the resultant need for him to have an extended period of release which is subject to medical and other supervision. 103An offence against s 326(1)(b) of the Crimes Act is, by its very nature, a serious offence. It strikes at the very heart of the administration of justice. That is a circumstance which, in my view, must be reflected in the sentence which is imposed in the present case. A person who chooses to offend in this way must expect the imposition of condign punishment. To do otherwise would be to fail to have proper regard to the authority of the courts which would, in turn, undermine the administration of justice. 104In Schaffer (supra) which was one of the authorities to which I was referred, and in which the offender had threatened a judicial officer intending to influence him in his conduct as a judicial officer, Buddin J (with whom Simpson and Hall JJ agreed) made the following observations (at [23]): "In my view this was an offence of considerable objective gravity involving as it did a clear threat to the Magistrate. It was a blatant endeavour to improperly influence a judicial officer in the performance of his sworn duty to uphold the law. In that sense, it is an offence that strikes at the very heart of the administration of justice which the courts must dispense in an orderly fashion: see Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 per Kirby P. It is necessary that conduct of the kind displayed by the applicant should be appropriately denounced in order that the authority of the courts is vindicated rather than undermined". 105In my view, notwithstanding the fact that his Honour's observations were made in the context of the commission of a different offence to that committed by the present offender, they are nevertheless apt in this case.

orders (1)For the offence pursuant to s 326(1)(b) of the Crimes Act 1900 the offender is convicted. (2)I find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. (3)The offender is sentenced to a non-parole period of 2 years and 5 months imprisonment, commencing on 4 May 2012 and ending on 3 October 2014, with an additional period of 1 year and 4 months imprisonment commencing on 4 October 2014 and ending on 3 February 2016. (4)The total term is one of 3 years and 9 months imprisonment. (5)The offender will be eligible for release on parole on 4 October 2014 and his sentence will expire on 3 February 2016. (6)I record the fact that but for the plea of guilty, the total term would have been one of 5 years imprisonment

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2012