474.17 CONVICTION OVERTURNED OVERTURNEDOVERTURNEDNEWS
Brett David Starkey, 50, wins appeal of conviction for menacing emails sent to 107 people
File picture. A man convicted of using a carriage service to menace - sending dozens of angry emails to 107 people - has won an appeal against the sentence.
Source: Supplied
Source: Supplied
A SPAMMER who sent 88 emails to more than 100 recipients over 46 days calling for the extermination of "left-leaning politicians and their associates" has had his conviction overturned on appeal.
Brett David Starkey, 50, was convicted in the Brisbane Magistrates Court of using a carriage service to menace and was sentenced to one year of probation in December for sending the emails to 107 people between February 15 and April 11, last year.
The majority of the recipients were federal and state politicians but also included media organisations, the Australian Electoral Commission and government organisations.
The emails were numerous but included the claim Kevin Rudd MP was a "treasonous criminal" who needed to be "jailed or shot" and calls for "Labor and Greens Parties" to be "eliminated from existence".
Other emails written by Starkey claimed certain "conspirators", named as Prime Minister Julia Gillard, Mr Rudd, former Greens leader Bob Brown and Malcolm Turnbull, should "face charges of treason".
Starkey appealed the decision on numerous grounds, including the assertion that a "reasonable person" would not have found the emails "menacing, harassing or offensive".
He argued only one complaint was made about the emails, despite some 106 others receiving them, and it came from an individual who had an "opposing ideology" and "who failed to absorb all of the emailed communication".
Lawyers for the Commonwealth Director of Public Prosecutions argued the recipients of the emails would have had no idea what the sender was capable of, other than he was "very angry, very aggressive" and referred to people "being shot in the head".
They claimed a recipient of the emails might "reasonably conclude that the sender was not calling for so much the taking up of arms but for exterminating left-leaning politicians and their associates".
In a 13-page published decision, District Court Judge Kiernan Dorney QC set Starkey's conviction aside and dismissed the complaint against him.
Judge Dorney said he was not satisfied beyond a reasonable doubt the emails were "menacing, harassing or offensive" when applied to the objective test of what a reasonable person would find so.
He said the objective test for "menace" would imply the receipt of the email would cause apprehension, if not a fear, for the recipient's own safety.
"It might even be projected that the significant concern was whether to consign each to the 'DELETED' folder or to the 'SPAM' folder in the email software program," Judge Dorney said.
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