The Queen v Rosenlund[1997] QCA 311

COURT OF APPEAL

MACROSSAN CJ

McPHERSON JA

de JERSEY J

CA 271 OF 1997

THE QUEEN

v.   

ADAM CAMPBELL ROSENLUNDApplicant

BRISBANE

DATE 26/08/97

JUDGMENT

McPHERSON JA:  The applicant was sentenced on a plea of guilty to imprisonment for two and a half years on one count of stalking committed between 1 October 1995 and 28 November 1995.

The victim was a 22-year-old married woman who worked in a clothing shop at the Myer Centre in the city.  She was a complete stranger to the applicant.  He first appeared at the shop in October 1995 and said he wished to try on some women's clothing.  He was advised to return at 5.00 p.m. when other customers would be absent and he did so.  On arrival he began behaving strangely and security guards were called, whereupon he became aggressive and began yelling at them.

He returned to the shop on 19 October and was seen looking at himself in a mirror.  When the complainant called a security guard he turned on her and said, "You f'ing bitch."  He came back on 26 October and proceeded to stand and stare at the complainant.  When she asked whether there was a problem he smiled and walked away.

His next visit was on 8 November, but on that occasion he left before the security guards arrived.  They found him and brought him back, whereupon he shouted at the complainant and the other shop assistants, "F'ing bitches, I have done nothing.  You f'ing bitches."  At 11.00 a.m. on 24 November he returned to the shop again and stood looking at the complainant.  

After a security guard was called he went up the escalator pointing his finger at the complainant as if it were a pistol.  At 1.00 p.m., on the same day, he came back again, pointed at the complainant and shouted, "What is her name?  I want to know her name."  He was escorted out and the police later called on him at his home. 

When interviewed, he said that the complainant had taken a fancy to him, liked to see him going up escalators and kept looking at his buttocks.  He added that there was a relationship between her and one of the security guards.  Otherwise, he generally denied the allegations that were put to him.

This naturally all had a very disturbing effect on the complainant.  She became so scared that, at work, she needed to be accompanied by someone else when going to the toilet, and she became afraid to walk out into the Mall.  She began working only part-time and at what might be described as unexpected hours in order to avoid being seen by the applicant.  Eventually, she gave up her job.  She still feels nervous walking in the city.

The maximum sentence for stalking without, as is the case here, any circumstances of aggravation is imprisonment for three years.  The records of sentencing for this offence that have been put before us show a wide spectrum of sentences ranging from a good behaviour bond to two years in cases where there is no circumstance of aggravation.

That puts this sentence at the higher end of the range, and, as has been pointed out to us with some emphasis, closer to the maximum penalty for a non-aggravated instance of this kind of offence.  Serious as the circumstances of this offence are, it might, perhaps, not justify a sentence of two and a half years for an offender who is now only 20 years old were it not for other circumstances involved.

The applicant has a lengthy record of convictions.  In, and since, 1994 but before this offence was committed, he had been sentenced for unlawful use of a motor vehicle, armed robbery of a convenience store, wilful damage, break enter and steal, drug and street offences and breach of bail.  Various sentencing options were tried in respect of those offences but without success.  He was admitted to probation on three occasions and has also been given a suspended sentence.  He was twice sentenced to imprisonment, on the second occasion to a term of six months for breach of probation. 

In addition, since the stalking offence was committed in late 1994, he has sustained a further series of convictions.  He was convicted of aggravated assault on a girl aged 12 who was playing in the street.  He kicked her three times in the legs and then chased her into her home, or the yard of her home, where he tripped her, pushed her down and stood on her ribs as she lay on the ground.  He has assaulted his mother, with whom he was living, by punching her in the arm with his clenched fist causing her considerable pain, and then proceeding to kick her in the left upper thigh, while, at the same time threatening, to use his words, to drill her head to or through the wall.

He claims she tried to kill him as a child and seems to have the view that this belief on his part justifies such treatment of his mother.  At home, he is reported to engage in punching holes in walls and smashing mirrors.  His mother and 12 year old sister are sometimes so afraid of him that they have to lock themselves into a room in order to escape his rages.

In addition, during the period after the subject offence was committed he assaulted a railway ticket collector by kicking him in the leg and spitting on him.  On another occasion, after a complaint was received about shots being fired in the street, the police searched his residence and found a .177 air rifle loaded with pellets, for which he had no licence.

There are other convictions for assault, making a total of four in all, since the subject offence was committed, as well as convictions for receiving and false pretences committed during 1996.  In respect of those offences, that is, the ones committed since the stalking offence, the usual sentencing options have all been tried again without success.  That is to say he has been placed on probation, he has been fined, he has been subjected to a suspended sentence of imprisonment and so on.  The only result of all these efforts to rehabilitate or reform him has been another instance of breach of probation.

The sentencing on the subject stalking offence was deferred while a pre-sentence report was obtained, and it seems to have been during that period that the further offences were committed in 1996.  Needless to say, the diagnosis that has been obtained by this means is that the applicant has an anti-social personality disorder with narcissistic traits.  He suffers from delusions of grandeur and believes the nation is conspiring against him.

Unfortunately, while he was in prison on a previous occasion he was assaulted by others.  There was some concern that he might have suffered a head injury and an EEG was performed, but it turned out to be normal.  No evidence was found, on psychiatric examination, that the applicant was suffering from depressed moods or suicidal ideation.  He simply denies that he engages in violent behaviour and continues to believe that people are conspiring against him.

He is plainly in need of psychiatric treatment; but on occasions when attempts have been made to help him he has declined to cooperate or report, or submit voluntarily to treatment or examination that has been offered.  The report of the community correctional officer and of the psychiatrist who assessed him is that the only appropriate outcome for the applicant is a term of imprisonment coupled with psychiatric treatment.

The assessor is said to have serious concerns that the applicant's aggressive behaviour could escalate with more serious results to others than have hitherto been observed.  There really is no question about the outcome in a case of this kind.  The only point pursued on this application for leave to appeal is that the sentence of two and a half years is excessive.

It may be that if the stalking offence stood alone, and could be viewed in isolation from his other conduct, this Court might be disposed to intervene.  However, despite the applicant's youth he has a lengthy history of offences many of them involving violence of an irrational kind, for which he has been treated with leniency and concern in the past.

Those attempts to rehabilitate or reform him have signally failed to produce results.  It is necessary, if his behaviour is not to become a more serious threat to others, that he now be subjected to a disciplined regime in which he can be required to undergo treatment in an attempt to improve his outlook and conduct.

The sentence, as I view it, evidently takes account of that requirement. Plainly a reformation or treatment of the  applicant will not be achievable if a further short period of imprisonment is imposed comparable to the sentences to which he has been subjected in the past.  The case is not one, I should emphasise, in which the applicant was sentenced to a period of preventive detention disproportionate to the offence involved or, indeed, at all.  On the contrary, it appears to me to be one in which the applicant has now received a sentence that is not only appropriate to the nature of the offence and the surrounding circumstances, including his conduct in the past and the promise of things to come, but one which, it is to be hoped, may provide an opportunity for treatment that, so far as I can see, represents the only discernible hope of his rehabilitation in the future.

In all the circumstances, I consider that the application should not be granted and that this Court should not interfere with the sentence below.

THE CHIEF JUSTICE:  I agree.

de JERSEY J:  I also agree.

THE CHIEF JUSTICE:  The application is refused.