Reported Decision : 153 A Crim R 372 New South Wales Court of Criminal Appeal CITATION: R v Peter William Schaffer [2005] NSWCCA 193 HEARING DATE(S): 18/05/2005 JUDGMENT DATE: 18 May 2005 JUDGMENT OF: Simpson J at 25; Buddin J at 1; Hall J at 26 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: Sentence - break and enter with intent - threaten to cause injury to a judicial officer intending to influence that person in his conduct as a judicial officer - nature and seriousness of offence involving judicial officer. Crimes Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 R v Jaques [2002] NSWCCA 444 CASES CITED: Registrar of the Court of Appeal v Manian (No2) (1992) 26 NSWLR 309 at 314 Veen v The Queen (No2) (1988) 164 CLR 465 Regina PARTIES: Peter William Schaffer FILE NUMBER(S): CCA 2005/395 D Frearson SC (Crown) COUNSEL: JR Young (Applicant) S Kavanagh (Crown) SOLICITORS: A Bilias (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/1234 LOWER COURT JUDICIAL OFFICER: Hock DCJ IN THE COURT OF CRIMINAL APPEAL 2205/395 SIMPSON J BUDDIN J HALL J WEDNESDAY 18 MAY 2005 REGINA v PETER WILLIAM SCHAFFER Judgment 1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court in respect of two separate offences. 2 In respect of a charge of break and enter with intent to commit a serious indictable offence, namely larceny, brought pursuant to s 113(1) of the Crimes Act, the applicant was sentenced to a fixed term of 12 months imprisonment. The applicant was also sentenced in respect of an offence brought pursuant to s 322(c) of the Crimes Act of threatening to cause injury to a magistrate, intending thereby to influence him in his conduct as a judicial officer. In respect of that offence, a non-parole period of 18 months imprisonment with a total term of 3 years was fixed. The maximum penalty for each offence is 10 years imprisonment. 3 The latter sentence was ordered to commence 9 months after the commencement of the earlier sentence and the overall effective sentence is thus a non-parole period of 2 years 3 months with a total term of 3 years 9 months. The sentencing judge found special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act by reason of the fact that the sentences were partially accumulated and because her Honour determined that "the offender will benefit from a longer period of supervision". 4 In sentencing the applicant for the latter offence, the sentencing judge took into account two charges of goods in custody which were on a Form 1 document. 5 It is convenient to set out, subject to minor amendments, the Agreed Statement of Facts which relate to the respective offences: Break and enter with intent to commit serious indictable offence, namely larceny on 26 June 2003 (Count 1) At 12.05 pm on 26th June 2003 the victims, Terrence Daley and Bruno Henriques returned to their unit at 2/10 Oxley Avenue Jannali. Prior to leaving for their bike ride Henriques checked that the lock on the garage door was secure. Upon returning to the rear car park at that location Henriques noticed that the Colourbond garage door had been forced open and was bent towards the outside. Henriques got off his bike and looked into the garage where he saw the offender Peter Schaffer looking through some bags of clothing. Henriques asked what the offender was doing in the garage and the offender replied that he had "permission from Mowie to come and get his stuff". Henriques said, "No that can't be possible because his stuff is already gone, he's been gone three months." A statement from Mohammed (aka "Mowie") confirms that Mohammed had not left any property at the unit and had never had a conversation with the offender about collecting any property for use. Henriques walked into the garage area in an effort to locate any property that may have been removed. The offender walked out of the garage and started to walk towards Oxley Avenue. Henriques yelled, "Stay where you are I am going to call the coppers". Henriques went into the premises and contacted Police via telephone. He returned and saw the offender walking towards the end of Oxley Avenue. He then picked up a wooden stick from the garage and ran after the offender. Henriques yelled at the offender to stop as the "coppers are coming." The offender turned and walked towards Henriques. Henriques said, "Stop don't walk towards me." The offender kept walking towards Henriques and put his right hand in his right pocket and mumbled words that were unrecognisable to Henriques. Henriques said, "Stop don't walk towards me." Henriques felt threatened and stepped back to distance himself from the offender. The offender took another two steps towards Henriques and Henriques subsequently swung the stick that he was carrying and struck the offender to the left hand side of his head. Henriques returned to his premises at 2/10 Oxley Street Jannail. The offender was observed walking towards Jannali Railway Station. Police attended Jannali Railway Station a short time later and spoke to the offender. The offender had a laceration to the left hand side of his head and Police contacted Ambulance Personnel. The offender began vomiting and complaining of blurred vision. Ambulance attended and treated the offender who was not charged with this offence at that time. Threaten to cause injury to a judicial officer intending to influence that person in his conduct as a judicial officer on 27 June 2003. (Count 2) During the morning of Friday, 27 June 2003 the offender attended Sutherland Local Court to see his girlfriend Nerida Douglas who was at the time in the custody of Corrective Services, having been arrested the previous day for the break and enter with intent at Jannali. Douglas was appearing at Sutherland Local Court this date in an attempt to obtain bail and was on the court list to be put before the Sutherland Magistrate, Mr Clugston. The offender was not able to see his girlfriend and eventually left the court. At approximately 3.15 pm the offender called Sutherland Court from a public phone near Redfern Railway station. The Sutherland Court Registrar Colin McDermid answered the phone. The offender said, "Unless my girlfriend gets out there is going to be blood flowing. I don't mind killing people she is innocent. I want you to organise this now". The offender went on to say that he was referring to his girlfriend, Nerida Douglas. He identified himself as Peter Schaffer. McDermid informed the offender that he could not overturn a magistrate's decision. The offender then stated, "I'm going to cut someone's throat over this if she's not out. There is people walking by here now". McDermid said that he did not know if the decision to have her bail refused was right or wrong. The offender then said, "The decision's fucken wrong, she shouldn't be in there, she's fucken innocent. That fucken magistrate Clugston has got it wrong. You have got to get it listed again before four o'clock, if you don't I'm going to kill someone. I know where that Clugston lives, unless he releases her, then so be it". The offender also said that, "I know she hasn't gone, I have people casing the place, I know the prison van hasn't left yet. If you don't get her out today, I told you I am going to kill someone". The offender hung up the phone and called his girlfriend's mother, Pam Douglas and left a message. Call records show that this call was made from a public phone at Redfern Railway Station. On Tuesday, 8 July 2003 Ms Douglas was listed to appear at Central Court in relation to another bail application. Sutherland Detectives waited in the foyer of Central Court until 3.10 pm. At that time the offender entered the court and was arrested and conveyed to the Surry Hills Police station. When police arrested the offender at Central Local Court he was found to be in possession of a Virgin Mastercard and a Commonwealth Bank cheque, each of which had been stolen. The offender agreed to be electronically interviewed and was interviewed by way of ERISP. The offender admitted attending Sutherland Court on the morning of 27 June 2003 as his girlfriend Nerida Douglas was listed there. He further admitted calling Sutherland Court and speaking with a male person between three and four PM that afternoon. The offender admitted threatening to kill someone if Ms Douglas was not given bail, but stated that he was mainly referring to himself. The offender also admitted that he had said "I don't mind killing someone over this, I'm a person that's done time, don't take my threats lightly", but again he said this was a reference to himself. He also admitted saying that, "I know where Clugston lives, unless he releases her then so be it". … The offender stated that he believed Mr Clugston would have felt threatened by his comments to the court officer over the phone, but that he only wanted [his girlfriend] to get bail. 6 The applicant, who was aged 30 at the time of sentence, has a criminal record dating back to when he was 11 years of age. He has served a number of terms of imprisonment for offences of dishonesty. The longest sentence which he has previously served was a minimum term of 2 years with an additional term of 2½ years, commencing in 1997, for offences of break, enter and steal. Indeed, convictions for break, enter and steal feature prominently in his antecedents. In December 2002 he was sentenced to 3 months imprisonment for various dishonesty offences. At the same time he was also placed on a 12 month bond for an offence of larceny, which was still current at the time the offences in respect of which this application is brought, were committed. After the applicant was sentenced for the present matters, he was sentenced in respect of other unrelated offences. Those sentences were ordered to be served wholly concurrently with the pre-existing sentences. 7 The sentencing judge took into account the applicant's troubled family background. His father was a Vietnam veteran who abused alcohol and was often violent towards the applicant. His mother, to whom he was close, died of a rare disease whilst he was in custody in 1996. Her Honour also took into account the fact that the applicant had at times been engaged in gainful employment. 8 The evidence revealed that the applicant had significant problems arising from his dependency upon illicit drugs. At the time of the offences he had been using 7 grams of amphetamines on a daily basis. Her Honour referred to the psychiatric evidence which suggested that whilst the applicant was not suffering from a psychotic illness, it was possible that "he may have had an acute psychotic episode when acutely intoxicated with amphetamines or in the early withdrawal phase". Her Honour also took into account evidence from a psychologist to the effect that the applicant was, and remained, pre-occupied with suicidal thoughts. 9 Complaint is made about the length of each of the sentences. It is asserted that the sentence in respect of count 1 is manifestly excessive. It was contended that her Honour must have overestimated the objective gravity of the offence because it was one which fell at the lower end of the scale of seriousness. It was also submitted that it was an offence which did not necessitate the imposition of a full-time custodial sentence. 10 I do not accept that submission. At the time of each of these offences, the applicant was still subject to the bond to which reference was made earlier. Moreover, it was a relevant sentencing consideration that he had a not insignificant history for similar matters: See Veen v The Queen (No2) (1988) 164 CLR 465. Furthermore, the victim of this offence observed the applicant whilst he was in the process of committing the offence and felt threatened by the applicant's response when he challenged him about his entitlement to be in the premises. 11 The applicant pleaded guilty to this offence on the day of trial. It was in those circumstances that a discount of 15% was extended to him. Until then he had maintained a version of events which was transparently false. Indeed he continued to do so even when he was interviewed by the author of the pre-sentence report. 12 It was also submitted that the sentencing judge had erred in not apparently taking into account the sentence imposed upon the applicant's co-offender, Ms Douglas. However, her Honour's attention was drawn by the Crown to the fact that Ms Douglas had been placed on a bond in the Local Court for her involvement in this matter after having apparently served 26 days in custody. Her Honour was informed that her criminal record was "negligible" and that accordingly no issue of parity arose. More importantly, counsel who then appeared on behalf of the applicant did not make a submission to the contrary. In my view there is no real basis upon which, in those circumstances, the applicant can entertain a justifiable sense of grievance by reason of the sentence which was imposed upon Ms Douglas. Nor, in my view, has it been demonstrated, when proper regard is paid to the matters to which reference was made earlier, that the sentence imposed in respect of count 1 was manifestly excessive. 13 In relation to count 2, it is likewise asserted that the sentence is manifestly excessive by reason of the fact that the sentencing judge took a more severe view of the offence than its objective gravity warranted. Before considering that submission, it is necessary to first address a specific error which is asserted by the applicant. As I have said, the sentencing judge allowed the applicant a discount of 15% on account of the plea of guilty in respect of count 1. However, her Honour allowed a discount of only 10% for the plea of guilty in respect of count 2, albeit that both pleas were entered at the same time, namely on the day of trial. Moreover, it was urged that there was a particular utilitarian benefit in not requiring a judicial officer to give evidence. It is true that her Honour did not provide an explanation for having differentiated between the two pleas of guilty. The explanation may lie in the fact that, initially at least, there was to be a contested hearing as to the facts in respect of count 2. In the final analysis, that issue resolved itself but the fact that such a contest had been foreshadowed meant that the utilitarian value of that plea was thereby reduced. Alternatively, it may be that the plea in respect of count 1 followed negotiations between the parties as to the appropriate charge, whereas the plea in relation to count 2 did not. 14 In those circumstances, I would not be disposed to find error on the part of the sentencing judge, although I accept that it would have been preferable had her Honour exposed her reasons for quantifying the pleas in the manner in which she did. 15 The applicant quite properly conceded that a full-time term of imprisonment was required in respect of count 2. Complaint was made, however, about the length of the sentence and the associated non-parole period. In essence, it was submitted that the sentencing judge "erred in failing to consider that the conduct was an impulsive amphetamine induced hoax call". 16 The applicant relied upon this court's decision in R v Jaques [2002] NSWCCA 444 as providing some support for the contention that the sentence imposed was manifestly excessive. That offender was found guilty of an offence of threatening a reprisal against a judicial officer pursuant to s 326(1)(b) of the Crimes Act. The offence occurred when the offender attended a country court office for an entirely legitimate purpose. Whilst there he was reminded by an officer at the court that he had to attend at another court for a matter in respect of which he had been committed for trial. That prompted the offender to say, in respect of the magistrate who had made the order committing him to stand trial, that "If I go to gaol for this, then when I get out I'm going to kill him". A full-time custodial sentence was imposed at first instance. This Court intervened and substituted a sentence of periodic detention. The Court pointed to the spontaneous nature of the offender's outburst which had occurred in the presence of a number of people. It also had regard to the fact that there was no clear evidence of an intention to carry out the threat, the offence being complete upon the uttering of the treat. Moreover, as the Crown pointed out, the threat in that case was of a contingent nature only and accordingly it lacked the immediacy of the threats which were made in the present case. Those considerations place that decision in a somewhat different category from the one which is presently under consideration. 17 Whilst I am dealing with the question of what may loosely be described as comparative cases, of which there are fortunately relatively few, mention might be made of the decision in Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314. That offender pleaded guilty to two charges of contempt arising out of proceedings which had been brought in the Children's Court by the Director General of the Department of Community Services. An order was sought that the offender's infant son remain in its care until he reached the age of 18. The offender told the mother's solicitor, prior to the commencement of the proceedings, that if his son stayed in foster care he would "get a Beretta and take his child". He also said that "they won't know anything about it until after I am out of the country as there will be two dead bodies". In his evidence in chief he said that he "could not guarantee the safety" of the foster parents if the child was placed with them. He also said that the child "won't be in foster care … no matter where they try and hide him I've got quite a few friends who can find him." The following exchange then took place between the magistrate and the offender: Q Are you effectively trying to force me to make a decision that's in accordance with your wishes? A No, I am leaving the final decision up to you. My course of action, once you've made that decision, is entirely my decision. 18 That offender had a long history of violence and was on parole at the time. The Court of Appeal had regard to the maximum penalty prescribed under s 322 of the Crimes Act, in determining that a minimum term of 2 years imprisonment with an additional term of 18 months should be imposed. 19 The Court observed that: As has been pointed out threats were made by him before, during and after his giving of evidence. It could not be suggested that his statements reflected his frustration or anger in the heat of the moment. The thrust of what he said during his evidence reflected his determination to let the magistrate, and others, know that there was a considerable risk in leaving the child in the custody of the foster parents. In the context those statements could only be understood as being deliberately made with the intention of putting pressure upon the magistrate to make an order the effect of which was to remove the custody of the child from the foster parents. Indeed the calculated nature of the threats is one of the factors which renders the offences such serious ones. … It is impossible to know whether he intended to carry out his threat if the magistrate had given a decision which he regarded as adverse. Of course that is not to the point for it was clearly his intention to influence the magistrate in his decision. (at 318-9) 20 Notwithstanding the clear differences between the cases, it appears to me that the observations which appear in the passages to which reference has just been made are apposite to the present case. 21 Moreover, the impact which the applicant's threat had upon the magistrate in the present case can be readily gleaned from the contents of the statement which he furnished to police. In it he said that: After being informed of the phone call made by Peter Schaffer I became concerned for my safety and the safety of my family, having regard to the nature of the threat made by him to the Registrar and his statement to the Registrar that he knew where I lived. As a result I did not resume sitting on that day until Sutherland Police attended the Court and conducted a search of the Court House building. I then requested that Police Officers remain in my Court until the end of the sitting day to ensure my personal safety. At the conclusion of my Court matters I had a meeting with Sutherland Police, local Sheriffs Officers and the other Sutherland Magistrates in relation to the threats that were made by Peter Schaffer. That meeting was held for the purpose of establishing a security plan to ensure the protection of myself and my family from the threat made by Peter Schaffer. At the conclusion of the meeting I was driven to my residential address by Detective Sergeant Hutcheson from Sutherland Police. Between the 27 June 2003 until his arrest on the 8 July 2003 I continued to be concerned in relation to the threats made by Peter Schaffer. My concern was mainly due to the statement he made to the Sutherland Court Registrar that he was aware of my residential address. 22 I am not attracted to the submission that because the applicant provided his name to the Registrar of the court during the course of their conversation, that that thereby diminished the seriousness of the offence. Indeed in one sense it made matters worse because the Magistrate indicated that he knew of the applicant, having previously imposed a full-time custodial sentence upon him at that very complex. 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 Manian (No2) (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. 24 In my view, this Ground of Appeal should be rejected. I propose that leave to appeal should be granted but that the appeal should be dismissed. 25 SIMPSON J: I agree. 26 HALL J: I also agree. 27 SIMPSON J: The orders of the Court will be as proposed by Buddin J. ********** 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.