SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  The applicant seeks leave to appeal against sentences imposed upon him following his conviction by a jury of three offences.  Count 1 was of aggravated stalking of his estranged wife, Ms Mandara, between 6 July and 2 November 2005, for which he was sentenced to two years imprisonment.  He had spent three days in pre-sentence custody, which was the subject of a declaration.  He was sentenced on 13 November 2007, and the learned Judge fixed a parole release date of 10 November 2008.  The applicant was also convicted of assault occasioning bodily harm, committed upon Ms Mandara on 7 July 2005 (count 2), for which he was sentenced to 12 months imprisonment to be served concurrently; and unlawfully assaulting her on 17 July 2005 (count 4), for which he was imprisoned for four months concurrently.  In respect of the last matter, he had been charged with assault occasioning bodily harm while armed (with a pair of scissors), and the jury convicted on the alternate lesser charge.  He was acquitted of assault occasioning bodily harm to his son, G, allegedly committed on 7 July 2005.

[2] The prosecution relied on seven acts of stalking.  It fell to the Judge to determine which were established.  The requisite standard of proof is set out in s 132C of theEvidence Act 1977 (Qld), that is, on the balance of probabilities, varying according to the consequences to the person being sentenced.  The Judge said in fact that he accepted the complainant’s evidence beyond reasonable doubt, and found three acts of stalking established, in addition to the conduct involved in the convictions on counts 2 and 4:  attending the complainant’s residence on or about 13 August 2005 and threatening to kill her, her son and himself (particular 3); attending the complainant’s residence on or about 13 September 2005 in the middle of the night, cutting off the power, and attempting to enter through the door (particular 5); and on 1 November 2005, throwing items of clothing over the complainant while she was at a medical centre (particular 7).  In relying on the complainant’s evidence for those particulars, the Judge said the acquittals were explained by the jury’s caution, when applying the standard of proof, rather than by a rejection of the complainant’s evidence.

[3] The applicant and the complainant are of Sudanese descent.  They migrated to Australia in November 2004.  The Judge mentioned these features of the stalking, when sentencing the applicant:  the use of violence and threatened violence; that some of the conduct occurred in the presence of the child; that the appellant was motivated by a desire to control or punish the complainant, not jealousy; the absence of remorse;  and the effect of the applicant’s conduct on the complainant in her capacity as a member of the Sudanese community.  While acknowledging the applicant’s past deprivations, and lack of prior convictions in Australia, the Judge considered deterrence warranted a sentence of two years of which the applicant should actually serve 12 months.  The applicant was 28 years old when he committed these offences.

[4] Mr Mac Giolla Ri, Counsel for the applicant, submitted that the Judge should not have relied on the matters involved in particulars 3 and 5, and should not have accepted the complainant’s evidence as to count 2, justifying an order which would involve the applicant’s immediate release, or a community based order.  It was submitted that since the applicant has by now served approximately six months in custody, he should be released.  The applicant’s essential position was that the Judge should not have relied on the complainant’s evidence where it was not independently corroborated.

[5] Counsel for the applicant focussed on the acquittals for his contention that the jury did not accept the complainant’s evidence as credible.  Count 3, on which the applicant was acquitted, was of the offence of assault occasioning bodily harm committed upon the son G.  This allegedly occurred on the same occasion as count 2, the assault occasioning bodily harm to Ms Mandara, for which the jury convicted the applicant.  The assault developed out of an argument as to how a pension for G should be deployed.  The complainant told the applicant that if he were unhappy about how she proposed spending the money, he could move out.  In fear of the applicant, the complainant took G to another room at the house.  The applicant followed and punched her in the body, face and head.  He grabbed her by the throat and put a cushion over her nose.  G then allegedly bit the applicant on the leg, whereupon the applicant grabbed G and threw him into a window.  The jury acquitted the applicant of that assault upon G.  A police officer, Constable Dean, attended in response to the complainant’s telephone call.  He noticed injuries to her, and that she appeared upset.  He did not notice any injury to G, and the complainant made no complaint of violence to G.  The constable then arranged for a domestic violence order, which was made five days later.

[6] Counsel for the applicant submitted that the jury should be seen as having rejected the complainant’s evidence in relation to the assault upon G.  But that is not necessarily so.  The jury, while accepting the complainant’s evidence of the assault on the boy, may, proceeding cautiously, have declined to find beyond reasonable doubt that G was injured, because the police officer saw no injuries and none was complained of by Ms Mandara; and also, because the assault may have been viewed as a relatively trivial sudden reaction in the heat of the incident to the boy’s actions, the jury may have chosen not to find a verdict of common assault.

[7] The second acquittal concerned count 4, assault occasioning bodily harm while armed:  the jury convicted of unlawful assault only.  The complainant’s evidence was that the applicant stabbed her in the leg with a pair of scissors.  There was independent evidence that the applicant was holding a pair of scissors and that the applicant subsequently admitted having cut the complainant.  The complainant gave evidence that the applicant cut her, causing her to bleed, and to experience pain.  In his summing up to the jury, the Judge described the wound supposedly caused by the scissors as ‘superficial’, which may go to explain the jury’s acquittal on the more serious charge while nevertheless generally accepting the complainant’s evidence.  The jury may not have accepted the evidence of the alleged admission.

[8] In these circumstances, the jury’s approach to counts 3 and 4 did not necessitate the Judge’s proceeding on the footing that the jury did not accept the complainant as a credible witness.

[9] Counsel relied also on a police officer’s inability to confirm that Ms Mandara received particular phone calls on 31 October 2006, as she claimed, in relation to particular 6.  The learned Judge did not rely on this particular in dealing with the applicant for stalking.  The police officer’s evidence did not, however, necessarily mean that the applicant’s claims should be rejected.  The Judge may have had doubts as to the reliability of the police follow up inquiries, or simply not have accepted Ms Mandara’s evidence on that particular point, while otherwise generally accepting her evidence as credible.

[10] There was ample evidence to warrant the Judge’s finding that particulars 3, 5 and 7 were established to the requisite standard.  Indeed, in respect of each of those matters, there was some degree of independent support for the complainant’s evidence.  For particular 3, a police officer who subsequently attended observed the complainant’s distressed condition; for particular 5, the police officers’ evidence was that they found the residence in a darkened condition and the power was ‘turned on again’; and for particular 7, two other persons gave evidence of seeing the applicant throw the clothing over the complainant, and a police officer who subsequently attended saw it strewn about.

[11] Counsel for the applicant relied additionally on a question from the jury some four hours after they retired.  The question concerned how many of the ‘concerning acts’ need involve a circumstance of aggravation.  The applicable circumstances of aggravation, on the prosecution case, were the use of violence and the subsistence of a domestic violence order.  The Judge answered the jury’s question, and verdicts were returned 25 minutes later.  Counsel for the applicant submitted that the jury should be seen as having rejected particulars 3 to 7, although it was conceded that particular 7 could be established.  Of the others, we note that the Judge did not rely on particulars 4 or 6.  But in any event, the submission invites this Court to engage in impermissible speculation.

[12] Counsel for the applicant referred in his written outline to the Judge’s not having sought special verdicts, under s 624 of the Code.  The Judge was not obliged to take that course, and defence counsel ultimately conceded that special verdicts should not be sought (p 405 l 50).  Counsel for the applicant did not pursue this on the hearing of the application.

[13] The learned Judge chose to accept the complainant’s evidence, having listened to it and having observed the complainant give it.  He said he was proceeding cautiously.  He was obviously aware of the standard of proof.  His acceptance of the complainant’s evidence was not necessarily inconsistent with the acquittals, for reasons previously explained.  His acceptance of the complainant’s evidence in relation to the additional particulars gained support from the independent evidence just mentioned.  When he said he accepted the complainant’s evidence beyond reasonable doubt, he was not to be taken as saying that he necessarily accepted that evidence in every minute detail.  He was saying that he accepted it as establishing the essentials of the additional particulars on which he chose to rely.  The Judge’s approach did not conflict with Cheung v R (2001) 209 CLR 1.

[14] The two year term of imprisonment, with parole fixed after 12 months, for stalking embracing, in particular, the assault occasioning bodily harm to the complainant on 7 July 2005 committed in the presence of the child, the assault on the complainant on 17 July 2005 after she admitted him to her residence so that he could attend to their son, and the applicant’s humiliation of the complainant in a public place on 1 November 2005, could not reasonably be said to have been manifestly excessive, where the applicant was convicted following a trial.

[15] The case of R v Layfield [2003] QCA 3 provides support for the sentence imposed here.  Layfield was a young man with no prior convictions.  He was convicted of stalking his former fiancée, mainly by threatening telephone calls, and by following her and loitering outside her place of work.  Like the present applicant, he exhibited no remorse.  He was sentenced to two years imprisonment.  The Court of Appeal declined to suspend that imprisonment after 12 months.  Here the applicant’s release after 12 months is assured.

[16] The application is refused.