SUPREME COURT OF QUEENSLAND

1. THE COURT:  The applicant was dealt with in the District Court on 9 July 1999 in respect of widely varying offences.  Firstly there was an indictment charging him with stalking with a circumstance of aggravation and further offences of breaking, entering and wilfully damaging property and stealing. Secondly he was dealt with for breaches of probation orders made on earlier occasions by judges in the District Court and was re-sentenced in relation to the original offences the subject of those orders.  These included various offences of breaking, entering and stealing, wilful damage, forgery and written threats to murder.  Thirdly he was dealt with upon 20 summary offences consisting of two breaches of bail, one possession of a graffiti instrument and 17 offences of using the postal services in an offensive manner.

2. On the stalking count he was sentenced to five years imprisonment. On the other matters on the present indictment he was sentenced to concurrent sentences of 12 months and three months imprisonment respectively. On the re-sentences following breach of the probation orders he was sentenced to various terms of concurrent imprisonment ranging from three months to 18 months, the latter sentence being imposed on the count of making written threats to murder.

3. On the summary matters which were dealt with under s 651 of the Code, he was sentenced to nine months imprisonment in respect of the 17 postal system offences, one month concurrent imprisonment on the possession of a graffiti instrument and one month on each of the breaches of bail, cumulative on each other and with the sentences imposed upon the postal system offences. The sentences on these summary matters were made cumulative with the other sentences imposed. That is to say they resulted in 11 months additional to the five years which represents the combined effect of all the other sentences. There was no recommendation as to parole. There was a declaration that 318 days in custody from 26 August 1998 to 19 July 1999 should be treated as pre-sentence custody.

4. Unfortunately the learned sentencing judge was not told that the applicant had recently been dealt with in the Inala Magistrates Court for other offences of using a telecommunications service in an offensive manner and had been sentenced to four months imprisonment. He was still serving that sentence at the time of imposition of these sentences. The relevance of this will emerge in due course. It is also the case that his Honour's attention was not drawn to the need to observe the complex sentencing regime prescribed under s 17A, s 19 and s 19AC of the Crimes Act 1914 (Cth), and that this resulted in some procedural irregularity.

5. The applicant is a 22 year old man. He has a fairly extensive and worrying criminal history including previous convictions for breaching the Bail Act 1980 and breaching bail undertakings, entering premises without lawful excuse, failing to appear, breaking, entering and stealing, receiving, behaving in a disorderly manner, wilful and unlawful damage to property, attempted stealing and wilful and unlawful destruction of property (in addition to the matters on which he had been granted probation orders in the District Court and upon which he now fell to be re-sentenced).  He had been sentenced to terms of imprisonment on several previous occasions despite having been given a variety of non-custodial options by the courts.

Circumstances of offences

6. The aggravated stalking offence was committed against a man whom it would seem the applicant had not met before the stalking commenced. The only apparent connection between them was that a brother of the complainant once taught a brother of the applicant at a high school. In February 1997 the applicant sent an obscene letter to the complainant demanding $50,000 and threatening harm to the complainant's children. Abusive and obscene phone calls ensued. There was a bomb threat in August 1997. The applicant then sent to the Children's Commissioner a letter purportedly written by the complainant's son detailing allegations of sexual abuse at the hands of the complainant. This resulted in the complainant being subjected to a police inquiry by the Child Abuse Unit. The applicant proceeded to send offensive material to clients of the complainant (who was engaged in real estate) referring to him as a child molester. Various other acts of harassment were arranged by the applicant including unwanted delivery of pizzas, and the arrival of taxis.

7. The circumstance of aggravation in the stalking count was the use of unlawful violence against the complainant's property. Considerable damage was caused by the applicant (who was in company with his brother) in and around the carpark area of the complainant's real estate premises at Paddington. They were apprehended but were released on bail the same night and returned to the general area. A security guard asked them why they were doing this to the complainant. They explained their actions as "payback" because of the unsuccessful attempt to extort $50,000 and boasted of "fucking him and his family" and of being happy that the complainant was spending so much money on security.

8. The sentencing procedure below was adjourned to enable a further report from the Community Forensic Mental Health Service to be obtained. Whilst on remand the applicant further harassed the complainant and his wife by means of phone calls from the Arthur Gorrie Correctional Centre. In order to expedite proceedings the Crown indicated its willingness to incorporate this additional behaviour, by amendment, into the stalking count currently before the court. The indictment was amended so that the last date on that count was 27 March 1999 and the applicant was re-arraigned and pleaded guilty.

9. The breaking and entering count involved entry of the Brisbane State High School in 1994. This was achieved by throwing a brick through a glass window and subsequently extensive damage was done inside the administration block including the smashing of computers, photocopiers and PABX systems. Over $6,000 damage was caused. The other count on the indictment involved the hiring of a carpet cleaning machine under a false name followed by failure to return it. The applicant used a false driver's licence in the course of hiring the equipment.

10. The postal service offences involved letters sent by the applicant to the Lord Mayor, the Police Commissioner, the Premier, a Criminal Justice commissioner and the Children's Commissioner. All had a similar offensive and obscene theme.

11. It is unnecessary to give specific details of the various other offences upon which the applicant was re-sentenced. So far as the charge of making written threats to murder is concerned, it is enough to say that the applicant sent to a police officer who had arrested him on a previous occasion numerous drawings and crude, obscene and very threatening statements.

12. Various pre-sentence reports were tendered, all of which indicated that the applicant felt no remorse for his offending behaviour and had no use for community based orders. A report from a psychiatrist noted however that he had been admitted to an adolescent centre in 1992 and that a diagnosis of Asperger's syndrome was made. Such a condition is a pervasive developmental order that is thought to relate to autism. People with this condition have restricted and stereotyped patterns of behaviour and interests but do not suffer disturbance of language development or cognitive development. The applicant was also thought to be suffering from "a conduct disorder of moderate severity with an adolescent onset" which had now developed into an anti-social personality disorder manifested by a failure to conform with societal norms. The applicant has shown a propensity to allege against persons whom he decides to harass that they commit sodomy and that they indecently deal with young children. In this matter he alleged that the complainant had sexually abused him when he was 10 years old, but the learned sentencing judge rightly in our view rejected that assertion.

13. There is little point in engaging in further discussion of the nature and consequences of the applicant's behaviour. His conduct towards the principal complainant and his family was devastating and his actions were of the most scandalous and destructive kind. He has obscenely and offensively intruded into the lives of a number of persons. The applicant has shown absolutely no remorse and represents a distinct danger to society.

14. It was claimed in the Notice of Appeal that his Honour ought to have made an early recommendation for parole, but this was not pursued. It seems to us that his Honour correctly observed that despite the applicant's plea of guilty, such a recommendation would be better not made and it was preferable that the parole authorities not be fettered. It is to be noted that the normal provisions under the Corrective Services Act 1988 permit consideration of parole at the half way point of the sentence if that course seems desirable.

15. Counsel for the applicant submitted that there were three identifiable errors in the sentencing process, resulting in the overall effect of the sentences being higher than they should. Firstly it was submitted that the applicant had suffered double punishment. The applicant had already been punished by sentences imposed by a magistrate at Inala on 16 June 1999 for two offences of improper use of carriage services, contrary to s 85ZE(b) of the Crimes Act 1914 (Cth).  These offences occurred on 26 March 1999 when the applicant made phone calls from the Arthur Gorrie Correctional Centre to the complainants in the stalking offence.  An element of these summary offences is the use of a carriage service in a way others would regard as being offensive.  These phone calls made by the applicant on 26 March 1999 formed the basis for the amendment of the stalking charge, to which the applicant subsequently pleaded guilty.  Telephoning or otherwise contacting another person is a "concerning act" under s 359A(7)(b) of the Code (as it then was).

16. The maximum penalty at that time for stalking with a circumstance of aggravation was five years. That penalty was imposed in relation to the applicant's conduct covered by the period 1 February 1997 to 27 March 1999, which included the two phone calls of 26 March 1999. The learned sentencing judge was not informed by the prosecutor that the applicant had been dealt with in the Inala Magistrates Court on 16 June 1999 in relation to those two telephone offences and that a sentence of 4 months imprisonment had been imposed. Having regard to the imposition of the maximum penalty in this case for stalking with a circumstance of aggravation, it was submitted that prima facie the applicant has been punished twice for the same acts, namely for his two phone calls to the complainants on 26 March 1999. It was further submitted that this was contrary to the prohibition of double punishment for the same act or omission expressed in s 16 of the Code.

17. The question of overlapping offences and double punishment was considered by the High Court in Pearce v The Queen.^[1]  The majority in that case (McHugh, Hayne and Callinan JJ) considered that although the effect of the sentences imposed on Pearce was not disproportionate to the criminality of his conduct, the individual sentences imposed on two particular counts were flawed because they doubly punished him for a single act (in that case the infliction of grievous bodily harm).  It was therefore necessary that he should be re-sentenced.^[2]  Gummow J, who agreed with the majority in the result, considered that there was a rule of practice, if not a rule of law, against duplication of penalty for what is substantially the same act.^[3]  The approach of Kirby J, who dissented, reveals a cautious approach to identifying situations which will justify a plea of autrefois convict or autrefois acquit.  His Honour did not consider the "gist or gravamen" of the relevant counts upon which Pearce had been sentenced to have been the same.^[4] 

18. However, in this case, on any view of the present facts, the applicant's conduct in making phone calls to the complainant from the prison was a particular of the offence of stalking and it cannot be dismissed as of minor relevance. Indeed these calls have an exacerbating effect on the seriousness of the conduct charged. Consistently with the requirements of s 16 of the Code, which require that a person not be punished twice for the same act or omission, it is necessary in this case to uphold the submission that prima facie the applicant has been punished, at least to some extent, twice for the same conduct. The question of what allowance should be made in order to compensate for this will be later considered.

19. The next point taken on behalf of the applicant is that no credit was given for his pleas of guilty. There has been a considerable societal benefit from the pleas in that various complainants have been spared the embarrassment of giving evidence and the costs of a trial have been avoided, although this is a clear case where remorse has played no part in the process. There were we think good reasons for the learned sentencing judge concluding that the statutory half-way mark was early enough for any consideration of parole. However the applicant's point is that such an order on its face allows no benefit as the result of the plea, and that the appropriate way to give account to it was to make at least some moderation or reduction of the maximum head sentence. The learned judge made passing reference to the applicant's pleas, but made no mention of granting him a benefit in respect of them beyond indicating that he considered it inappropriate to make an early recommendation for parole. The fact that the maximum sentence was imposed on the aggravated stalking count suggests that certainly no allowance was made in respect of that important component in the overall sentence. It is of course possible that but for the pleas of guilty his Honour may have imposed heavier cumulative sentences, for example the offences upon which he was re-sentenced after breaching District Court probation orders, but his Honour did not give any specific indication to this effect. Ultimately it will be necessary for this court to consider the totality of the sentences imposed and to consider whether it is consistent with a reasonable allowance having been made for the applicant's pleas of guilty.

20. Finally counsel for the applicant draws attention to the additional nine months imprisonment imposed with respect to the Commonwealth offences (improper use of the postal service) which were not delivered in accordance with s 17A, s 19 and s 19AC of the Crimes Act.  He submits that the failure to have regard to the sentencing regime for such offences amounts to error which is reviewable on appeal.  However it does not seem that the quantum of the punishments imposed or even the nature of the order such as fixation of a parole date, was in any way affected by his Honour's failure to observe the procedural requirements of those sections.  We do not understand counsel for the applicant to contend that a recognisance release order ought to have been made or that the substance of the sentences is impeachable by reason of procedural breach.  It is noted that under s 17A(3) of the Crimes Act procedural failure does not result in invalidation of the sentences imposed;^[5] and the irregularity remaining under s 19AC is limited to a failure by his Honour to state his reasons for deciding that a recognisance release order was not appropriate, and failing to cause those reasons to be entered in the records of the court.  It was not submitted that any of these irregularities invalidate any of the sentences that were imposed.  It would seem that the requirements of both s 17A and s 19AC of the Crimes Act requiring such reasons to be "entered in the records of the Court" are regarded as being satisfied by a transcript of appropriate sentencing remarks being placed with the court file.^[6]

21. The totality of the sentences is the dominant factor to which we must have regard. The ultimate submission on behalf of the applicant was that the total sentences should have been framed so as not to exceed a total maximum of five years imprisonment.

22. The submissions on behalf of the Crown draw attention to the outrageous and persistent nature of the applicant's acts. Certainly on the major charge of stalking the applicant's conduct is capable of being regarded as being in the worst category of offences and prima facie a maximum sentence was justifiable. Further, the additional wide ranging criminal conduct including the repeated commission of offences whilst on probation would justify some cumulative sentences upon the other matters. Further, the two months cumulative upon the bail offences is a mandatory requirement under the Bail Act 1980.

23. It was initially contended on behalf of the Crown that no double penalty had resulted in respect of the imprisonment imposed in the Inala Magistrates Court on 16 June 1999 because part of the imprisonment under those sentences became concurrent with those which are now under review and the other part of it was credited as time served under the present matters. The response of counsel for the applicant to this submission was to demonstrate that error has occurred in the declaration made by the learned sentencing judge that 318 days had already been served with respect to the present sentences. The effect of the sentence in the Inala Magistrate Court was that it was taken to have commenced on 14 April 1999 (which is the date on the bench charge sheets when the applicant first appeared on those matters). On this basis, when the applicant was sentenced on the present matters on 9 July 1999, the last (approximate) three months of the custody for which he was given credit were not solely the result of, or at all the result of, the matters upon which he was then sentenced. In the circumstances, which were not brought to the notice of the learned sentencing judge, the submission of counsel for the applicant is that the pre-sentence custody declaration should cover the period 26 August 1998 to 13 April 1999 (221 days) and 4 July 1999 to 9 July 1999 (6 days), totalling in all 227 days. Counsel for the Crown did not submit to the contrary. Both parties agree that the pre-sentence custody declaration ought to be amended to this effect. Although this is in itself a disadvantage to the applicant, it is the correction of an erroneous credit allowed under s 161 of the Penalties and Sentences Act 1992, and jurisdiction to make such a correction exists under s 188 of that Act.  This correction does not affect the question of whether the terms of imprisonment that were imposed were in themselves excessive.  The advantage from the applicant's point of view in having this matter corrected is that it removes the valid part of the Crown submission that there was no double punishment because there was substantial concurrency of sentence between that imposed by the Inala Magistrates Court and that imposed on the stalking count by the District Court.  It therefore opens the way for proper consideration of the extent to which double punishment may have been imposed.

24. It seems to us that the appropriate sentence for the aggravated stalking count should have in any event been very close to the maximum even without the added feature of the further phone calls from the prison during the adjournment. The extent to which this added feature may be thought to have increased the effect of the sentence should in our view be regarded as relatively minor. By the same token, some correction should be seen to be made to correct the prima facie error that resulted from the court not being told that the applicant had already been punished in respect of the matters upon which the indictment was amended. The problem is exacerbated by the uncertainty that surrounds the question whether appropriate benefit was given for the plea of guilty.

25. A little over one month of the sentences imposed by the magistrate at Inala will be served concurrently with the present sentences whilst a little under three months of them will be served additionally. If one then takes a wider view of all relevant offences (including those which were before the magistrate at Inala) the total cumulative effect is approximately six years and two months.

26. The overall sentences might have been framed in any one of many ways. For example, some of the re-sentences upon breach of probation (including the charge of written threats to murder) might well have been made cumulative. In our view a reduction of five months from the total of six years and two months best represents the adjustment that should be made to take account of the double punishment factor, at the same time framing a sentence that gives appropriate effect to the plea of guilty. This means that the total cumulative effect of the present sentences should be reduced from five years and eleven months to five years and six months.

27. This result could be achieved in a number of ways. For example the five month reduction could be taken from the sentences imposed on the 17 summary offences of using the postal system in an offensive manner. That however would not on its face demonstrate that the double punishment point had been addressed. The preferable solution would seem to be to reduce the five year sentence for the stalking offence by five months, and to permit the cumulative effect of the present summary offences to remain. It would also have been possible, as suggested earlier, for the learned sentencing judge to have achieved a cumulative effect by imposing cumulative sentences on some of the re-sentences in the District Court. It might also be noted that even without the additional conduct of the applicant in making calls to the complainant from prison a sentence of five years may well have been appropriate. However it is not necessary to pursue the various alternative means by which the total effect of five years and six months might be achieved. In order to ensure that on the face of the relevant sentences there has been no overlapping punishment the above adjustment should be made by reducing the sentence on the stalking count by five months.

28. It will be noted that the result of this adjustment is that the total cumulative effect of all relevant sentences (including that part of the Inala Magistrates Court sentences served before the imposition of the present sentences) will be five years and nine months, and that the necessary amendment to the declaration as to pre-sentence custody will give the applicant his full remaining credit entitlement on all present sentences.

29. The question remains whether any order should be made by this court in relation to the procedural irregularities that were raised in respect of the present sentences imposed under the Crimes Act.  The notice of appeal was in respect of the stalking offence only.  However as all matters were argued and as counsel agreed that if necessary this court should reconsider the sentences imposed in respect of all the matters that were before the learned District Court judge, it will be desirable to grant leave to the applicant to amend the notice of appeal at least to include the Commonwealth offences.  The appropriate procedural declaration can then be made by this court.

Orders

30. The applicant is granted leave to amend the notice of application for leave to appeal against sentence to include the 17 summary offences of using the postal system in an offensive manner. The applicant should be granted leave to appeal. The appeal should be allowed with respect to count 2 (stalking with a circumstance of aggravation) in the indictment dated 12 March 1999 by reducing the sentence imposed thereon from five years to four years and seven months. With respect to the 17 summary offences of using the postal system in an offensive manner the sentence is confirmed, and a declaration will be added that the court is satisfied that no other sentence than imprisonment is appropriate in all the circumstances and that a recognisance release order is inappropriate in the circumstances. It is further directed that a copy of these reasons for judgment be placed with the court file. The declaration made below in relation to pre-sentence custody should be set aside and in its place there will be a declaration that the applicant was in custody in relation to the present sentences for the periods 26 August 1998 to 13 April 1999 and 4 July 1999 to 9 July 1999 totalling 227 days, and that that period is to be regarded as time served under the present sentences. In all other respects all sentences are confirmed.