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- R v Foodey[2003] QCA 310
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R v Foodey[2003] QCA 310
R v Foodey[2003] QCA 310
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | |
DELIVERED ON: | 25 July 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 July 2003 |
JUDGES: | Davies and Jerrard JJA and Helman J |
ORDER: | Dismiss the application for leave to appeal against sentence |
CATCHWORDS: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant sentenced to eighteen months imprisonment suspended for five years after applicant served 168 days for unlawful stalking and wilful damage – where plea of guilty – where applicant demonstrated no remorse – where learned sentencing judge considered offending behaviour to be so serious as to require a deterrent element in the sentence imposed – where applicant’s conduct in constant breach of protection orders – whether sentence manifestly excessive Domestic and Family Violence Protection Act 1989 (Qld) R v Hallett [1997] QCA 418; CA No 301 of 1997, 21 November 1997, discussed |
COUNSEL: | The applicant appeared on his own behalf |
SOLICITORS: | The applicant appeared on his own behalf |
[1] DAVIES JA: I agree with the reasons for judgment of Jerrard JA and with the order he proposes.
[2] JERRARD JA: In mid May 2002 the applicant Simon Foodey and his wife Jennifer Louise Foodey separated after an eight year marriage. They had had a relationship for some 14 years and had two children then aged six and two. On 19 May 2002 a Temporary Protection Order, which had been issued by the Toowoomba Magistrates Court on 16 May 2002, was served on Mr Foodey at the Helidon Police Station. That order, issued pursuant to the Domestic and Family Violence Protection Act 1989 (Qld), expired on 30 May 2002, and on that date a second Temporary Protection Order was made. The applicant was present when that order was issued, which expired on 8 July 2002. On that last date a further order was made.
[3] Despite those orders, the applicant engaged in conduct between 30 May 2002 and 25 July 2002 which constituted unlawfully stalking Jennifer Foodey; and on 23 December 2002 he pleaded guilty in the Toowoomba District Court to having committed that offence between those dates. By his plea he also admitted two circumstances of aggravation, namely that a number of the concerning acts of that stalking were constituted by his unlawfully using, and threatening to use, unlawful violence against Jennifer Foodey; and that a number of those acts contravened those restraining orders. He also pleaded guilty to a second count that on 5 July 2002 at Toowoomba he had wilfully and unlawfully damaged her motor vehicle. On 7 January 2003 he was sentenced to imprisonment for 18 months, such imprisonment to be suspended for a period of five years after Mr Foodey had served 168 days. It was declared that 168 days of pre-sentence custody from 24 July 2002 was imprisonment already served, and Mr Foodey was released. He appeals against that sentence, arguing that it is manifestly excessive.
[4] The sentencing process before the learned sentencing judge involved a contest of fact about a number of the circumstances of Mr Foodey’s stalking of his ex wife. After that contested hearing the learned judge held that, “leaving the phone call matter aside”, the judge was satisfied beyond reasonable doubt that the “functional” serious acts occurred as the complainant said. That finding, not contested in the applicant’s grounds for leave to appeal against his sentence, means that the applicant’s conduct towards Jennifer Foodey included a number of separate occasions on which:
● he assaulted her in different ways;
● he drove his car at her or her car;
● he threatened that she would die;
● he followed her motor vehicle.
[5] The first assault consisted of his pushing a lit cigarette onto the palm of her hand on 2 June 2002, when care of the children was being exchanged at a McDonalds. On 16 June 2002 he spat in her face, again at McDonalds on an occasion of exchanging care of the children, and two days later at 8.00 p.m. at night he approached her in the grounds of her then home, and tackled her to the ground. She was so terrified that she voided her bladder. On 20 July 2002 he went to her home, slapped her, and made her nose bleed.
[6] The threats included one made on 1 June 2002 that “you’ll get yours”; one made 22 June 2002 that “you underestimate me, moll”; one made 5 July 2002 that “you’d better hurry up – its going to hurt”; and later that day “you’re going to die bitch and so is Erin” (their elder daughter); and one made 12 July 2002 that, “you’re going to die bitch”.
[7] The occasions when he abused her by his use of a vehicle included following her around Toowoomba on 5 July 2002, driving that same day at her in a shopping centre car park and stopping only inches behind her; swerving his vehicle towards her on 7 July 2002 when they were travelling in opposite directions, and then following her car for six kilometres; and following her around the centre of Toowoomba on 18 July 2002 as she shopped.
[8] The matter about which the learned judge made no specific finding, namely “the phone call matter”, was her complaint that on many occasions he phoned and left messages on her mobile telephone. For example, on 2 June 2002, 27 messages were left, on 4 June, 48, and on 21 July, 13. There were many, many, other phone calls. The applicant’s version of all that was that orders made by the Family Court of Australia entitled him to telephone contact eight times per week with the children, and he alleged that frequently the complainant Jennifer Foodey would intervene during those calls, say “that’s one” and hang up, and if he called back say “that’s two”. Whatever the merits of that account, and the learned judge thought that some of the complainant’s behaviour toward the applicant was provocative to him, simply the number of telephone calls made to Jennifer Foodey appears obsessive and harassing.
[9] The sentencing remarks of the learned judge include the observation that while Jennifer Foodey was giving evidence she was clearly stressed, and that the applicant appeared to be almost enjoying her discomfort; and to that extent Mr Foodey impressed the judge as a heartless, even cruel, person. The judge was satisfied the applicant had not accepted even as at the date of sentence that the parties marital relationship was at an end, and the judge expressed the view that the applicant’s offending behaviour warranted a “not insubstantial” custodial term, and further that his conduct was of such seriousness that a deterrent element was more than ordinarily important. The judge noted that the applicant had a criminal history of offending behaviour in both Western Australia and New South Wales, for conduct some considerable time ago and which demonstrated persisting involvement with prescribed drugs.
[10] The learned judge made an allowance for the applicant’s co-operation with the administration of justice by the plea of guilty, which he considered had certainly saved a trial of very real length; but thought it inappropriate to make any allowance for remorse, since he could see none. In the result he imposed the sentence described, which effectively released the applicant back into the community immediately, but with what will be a 12 and a half month suspended sentence for five years. The learned judge made the effect of that sentence very clear to the applicant, who said he understood it.
[11] The applicant’s behaviour towards Jennifer Foodey in the two and a half months between their separation and his incarceration was persistently cruel and aggressive. At different times he insulted, degraded, and terrified her. His conduct throughout was in breach of court orders intended to give her protection. Considered in isolation, the sentence imposed by the learned judge does not appear manifestly excessive, and indeed far from it. The same result occurs if regard is had to other sentences for unlawful stalking imposed or approved by this court.
[12] In a matter Hallett [1997] QCA 418 this court upheld a sentence of two years imprisonment for an offence of stalking. The reasons for judgment on that applicant’s appeal against conviction reveal that he had interfered on more than one occasion with the complainant’s motor vehicle, and had threatened to kill her. The learned judge’s sentencing remarks in that case included the following statement:
“I accept that the jury’s verdict carries with it a finding that you made, in particular, many, many telephone calls to herself and her friends and that you damaged her vehicle, including the cutting of the brake hose, itself a highly dangerous thing which could have resulted in death or injury to her or to someone else on the road.”