R v Manning[2015] QCA 241

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  I have read the reasons of McMeekin J and agree with those reasons and the orders his Honour proposes.

2. PHILIPPIDES JA:  I agree with the orders proposed by McMeekin J for the reasons stated by his Honour.

3. McMEEKIN J:  On 28 October 2014, after a trial conducted before Long SC DCJ and a jury, John Frederick Manning was convicted of one count of unlawful stalking the complainant between 31 January 2012 and 10 May 2013 (“the stalking offence”).  Mr Manning filed a belated notice of appeal against that conviction (CA No 336/14) contending that the conviction was “unreasonable and cannot be supported by the evidence”.^[1]

4. The stalking offence was committed during the five year operational period of a suspended sentence of three years imprisonment imposed on 27 June 2008, that sentence being imposed in respect of offences of unlawful stalking and dangerous operation of a vehicle.

5. On 6 February 2015 Long SC DCJ sentenced Mr Manning to imprisonment for 18 months in respect of the conviction for the stalking offence.  His Honour ordered that the balance of the suspended sentence of imprisonment, a period of two years and 99 days (829 days), be served.  His Honour declared that 101 days of pre-sentence custody (from 28 October 2014 to 6 February 2015) be declared time served under the sentences he imposed.  His Honour further ordered that Mr Manning be released on parole on 28 November 2015, after serving 13 months of the sentences.  A restraining order was made pursuant to s 359F of the Criminal Code.

6. Mr Manning seeks leave to appeal the sentences imposed by Long SC DCJ (CA No 33/15).  The application was filed one day late but no point is taken by the prosecution.  The application is not opposed on the ground that it seems evident that the orders that his Honour put in place did not reflect his expressed intent.

The Offending Conduct

7. Before turning to the issues I will detail the nature of the offending conduct. After determining two disputed issues of fact in favour of Mr Manning the sentencing judge summarised the factual basis on which he intend to sentence him^[2]:

“Accordingly, the defendant will be sentenced on the basis that the conduct which constitutes his offence is the incident described by the complainant where, in the course of her employment [the complainant worked as a shop assistant], he asked about a ring on her finger and asked or made a comment, as she described it:

“How we could be together if I wasn’t engaged”.

And she responded:

“No.  Even if I wasn’t engaged, we would not be together; I’m not interested”.

That there was an incident when the defendant was in the shop and she was on the floor, putting out returns back to their original places on the shelving and the defendant approached her and asked her for a hug and she declined by saying:

“No.  Definitely not.  That is inappropriate”.

And she walked away from him.

That there was the incident which is described in the evidence and recorded on a video recording, where the defendant presented or gave to the complainant a necklace, when she was at the workplace.

That there was a sequence of incidents that occurred when the defendant called the shop, spoke with the complainant, made a comment the necklace looked good on her, at a time when she was not wearing it and that, later that evening, he came into the shop, in particular having made a telephone call and walked into the shop, apparently on his mobile phone whilst talking to her…

I am also satisfied that the offending conduct included the incident described by the complainant in her evidence, whereby the defendant followed her home, when she was driving in her car with her then-boyfriend, again, as described by the complainant in her evidence , in particular.  That, it can be noted, was the incident that led directly to the intervention of the police, who spoke with the defendant and returned the necklace to him, in October or about October 2012.

Subsequently, to that, as I have already adverted to, it can be noted that there was a period of some months when there was no approach made, on the evidence, to the complainant; except that, in 2013 and leading up to May 2013 and after a time when there had been a re-opening of the Supercheap store and an involvement of the defendant because of his interest in a car club in that, there were the further occasions of him approaching the complainant on the occasion when he was with his female friend and, as I have indicated, at least another occasion when there was an exchange in relation to change and the occasions when he approached other staff members, such as Ms Orphin and Mr Norvell, requesting that they each as the complainant to come to the store to speak to him.  And, in that sense, that there was a resumption of the conduct of the defendant, which is the subject of the offence.”

8. The sentencing judge found that the offending conduct was “persistent” and “extended over a considerable period”.^[3]  That was in accordance with the complainant’s evidence that the jury were entitled to accept.

9. His Honour also found that Mr Manning had caused the complainant “serious emotional harm”^[4] and over a significant period.  The complainant gave evidence of the impact of Mr Manning’s conduct on her.  Others observed her reactions which were consistent with that evidence.^[5]  Mr Manning pursued the complainant to her home and to her workplace.  She changed her shifts at work and selected her residences, when she changed residences, in an effort, she said, to avoid him.  His Honour thought that the complainant’s distress “reasonably arose in the circumstances”.^[6]

The Appeal Against Conviction

10. I am not at all sure that Mr Manning pursues the appeal against conviction. Mr Manning appeared unrepresented.  He appeared to abandon the appeal at one point^[7] but his submissions on the hearing were equivocal and so I will assume he persists in it.  However there is not the slightest merit that I can see in the appeal.

11. As the appeal was out of time by some three weeks Mr Manning requires leave to bring the appeal. Mr Manning attributes the delay in filing notice of his intention to appeal against conviction to difficulties caused by his being in custody.^[8]  For present purposes that may be accepted.  Whether or not that is a satisfactory explanation is another matter.  But the principal issue is whether there has been a demonstrable miscarriage of justice.  If there has been and that could be perpetuated by a refusal of the extension then an extension of time might be granted.  If there is no risk of a miscarriage of justice an extension of time should be refused.^[9]  It is necessary then to consider the merits of the proposed appeal.

12. In his notice of appeal Mr Manning advances only one ground: that the conviction was unreasonable and cannot be supported by the evidence. Such a complaint will be successful if after “making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted….”^[10]  The complaint will fail if “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty”.^[11]

13. It is impossible to identify with any precision the grounds of the appeal against conviction nor for that matter the grounds of the proposed appeal against sentence. Mr Manning filed a submission in January which he clearly abandoned.^[12]  Nonetheless in his oral submissions before the Court Mr Manning seemed to concentrate on re-asserting each of those grounds.  Since January he has filed three outlines, one of 35 pages, one of three pages and one of 23 pages and supplemented those outlines with another letter of 15 pages filed a few days before the hearing.  The outlines are needlessly repetitive and confusing.  I will deal with the complaints that I think are pertinent.

14. The offence of which Mr Manning stands convicted is defined in section 359B of the Criminal Code which provides:

“Unlawful stalking is conduct—

(a)intentionally directed at a person (the stalked person); and

(b)engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and

(c)consisting of 1 or more acts of the following, or a similar, type—

(i)following, loitering near, watching or approaching a person;

(ii)contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;

(iii)loitering near, watching, approaching or entering a place where a person lives, works or visits;

(iv)leaving offensive material where it will be found by, given to or brought to the attention of, a person;

(v)giving offensive material to a person, directly or indirectly;

(vi)an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;

(vii)an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and

(d)that—

(i)would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or

(ii)causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.”

15. No complaint is made, as best I can see, that if the complainant was believed by the jury the elements of the offence were not made out. In fact Mr Manning did not dispute many of the acts said to constitute the offence of stalking. He admitted at the trial that a letter tendered had been written by him (Exhibit 9). In that letter he said, amongst other incriminating things: “I am not interested in anyone but you.”

16. In his sentencing remarks that I have referred to Long SC DCJ identified from the evidence more than nine separate approaches made by Mr Manning to the complainant.  His conduct was plainly protracted.  It was intentionally directed to the complainant – apart from the obvious inference to be drawn from the facts Mr Manning’s own letter to the complainant showed that.  The conduct established by the complainant’s evidence fell within several of the paragraphs of s 359B(c).  There was evidence that the jury were entitled to accept of the complainant’s apprehension or fear.  In my view it is not necessary to further review the evidence – it was plainly sufficient to establish the charge.

17. In his original outline filed in support of this appeal, and which he said that he abandoned, 13 complaints were made.

18. The first two matters allege the applicant did not understand the proceedings against him and the trial judge failed to make sure he understood. The record makes plain that is not so. In his oral submissions Mr Manning said in relation to the prosecution response that “the very careful and thorough directions to the jury do not suggest the experienced trial Judge failed in his duty to ensure the applicant had a fair trial” and so there was no merit in this ground:

“In regards to that, if there’s no understanding that there’s no agreement, no contract, and could also mean the appellant was not of sound mind, but the appellant was convicted of having a sound mind of a reasonable man.”^[13]

I am not sure of the point that Mr Manning seeks to make but his agreement to being convicted is not relevant.  He clearly understood what the proceedings entailed.  He in fact said so in one of his outlines.^[14]  There is no suggestion that Mr Manning does not have a sound mind in the relevant sense.

19. Matters 3 and 4 are to the effect that the verdict was unreasonable, and are dealt with above.

20. Matter 5 alleges the trial judge failed to direct the jury of the need for proof beyond reasonable doubt. His Honour did and on many occasions. His Honour’s directions included:

“I will often refer to the obligation of the prosecution to prove or establish something.  Whenever I say that, please bear in mind and I won’t repeat it every time, because it’ll become tedious, what when I say that, I mean, as I have already told you, prove or establish beyond reasonable doubt, because that is the obligation under the law.”^[15]

There is no reason to think that the jury did not understand the standard of proof and that it had to be discharged by the prosecution.

21. Matters 6 and 7 refer to the Queensland and Commonwealth constitutions. In his oral submissions Mr Manning said the failure to place the constitutions before the jury involved “concealing an overt act”.^[16]  It is not clear what Mr Manning intends to argue.  The constitutions have nothing to do with the matter.

22. Matter 8 alleges a failure to direct the jury they must be satisfied the conduct of the applicant caused “serious emotional harm”. The trial judge directed the jury in this regard.^[17]  On the hearing of the appeal Mr Manning said that the evidence was “only hearsay of credibility of the lady herself”.^[18]  The complainant’s evidence of her distress is not hearsay.  Her credibility was a matter for the jury.  There is no need for expert evidence to be led in support of her to establish the necessary element of the offence.

23. Matter 9 raises a complaint that the applicant was not given sufficient notice that a particular allegation was relied upon as part of the offence of stalking. This related to a sticker bearing the complainant’s Christian name on one of the applicant’s cars. It is clear the applicant was aware of the fact of the existence of the sticker as he referred to the sticker in his letter, exhibit 9, which he wrote long before the trial. I agree with the prosecutor’s submission that even if it were the case the applicant was not told this was a particular of the stalking until the start of the trial it was a minor matter that could not have produced a miscarriage of justice.

24. Matter 10 alleges serious misconduct by police investigating the offence. It is unsupported by any evidence.  Mr Manning said on the hearing of the appeal that the officer’s evidence conflicted with their statements which is a different thing.^[19]  Any such discrepancies were a matter for the jury.

25. Matter 11 alleges the verdict was unreasonable as the prosecution did not prove physical injury to the complainant or damage to her property. Such proof was not necessary: s 359A, s 359B Criminal Code.

26. Matter 12 alleges some purported misconduct with a document. In his oral submissions Mr Manning asserted that the police failed to verify documents by a notary public.^[20]  I cannot perceive why that results in a miscarriage of justice.

27. Matter 13 raises a purported inconsistency in the evidence of a police officer. On appeal counsel for the respondent submitted: “Inconsistencies in the evidence were matters the jury could take into account. The trial judge properly directed the jury on this topic at p.4 lines 31-40. It was for the jury to assess the alleged inconsistency and to consider what effect if any, it had upon their consideration of the evidence.” That is clearly right.

28. I turn then to Mr Manning’s various subsequent outlines.

29. Mr Manning submits that the jury’s verdict was “unreasonable” on the ground that “the conviction came down to credibility of the complainant and [himself] leasing (sic – presumably “leaving”) reasonable doubt of conviction on belief of credibility … belief is less than knowledge and not of personal knowledge which leaves reasonable doubt”.^[21]

30. Mr Manning is perfectly correct in asserting that the issue for the jury concerned his credibility and that of the complainant. His argument that reasonable doubt must attend a decision based on an assessment of the credibility of the principal witnesses is simply wrong. I should note that there was a deal of evidence to support the complainant’s account in several respects, not least Mr Manning’s own letters to her, and the sentencing judge recorded that he considered her to be an honest and reliable witness, albeit nervous, while Mr Manning’s evidence he thought “unimpressive” and “confronted, in many instances, by objective improbability.”^[22]

31. Mr Manning asserts that if even one of the particulars charged against him were not proved then that has the result that there must be a reasonable doubt. The conclusion does not follow from the premise. Several of the original particulars given of the conduct complained of were not pursued but there is no warrant for asserting that had the necessary result that the complainant’s credit was irretrievably affected. Nor was there such an inconsistency between the particulars proved and those not proved to cast doubt on the complainant’s veracity.

32. For example the complainant gave evidence that a letter handed to her by Mr Manning had been opened by her before being handed to police. In a more contemporaneous statement she said that she had handed the letter unopened to the police.  A possible failure of her memory of that type reflects in no way on the complainant’s overall credibility.

33. Mr Manning complains that the psychiatric report that the learned sentencing judge ordered be obtained for the purpose of sentence demonstrates that his conviction was unjust. The report was not of course before the jury. The injustice arises, it is said, because the report shows that he is of unsound mind but the jury dealt with him as a person of sound mind.  The report does not assert that Mr Manning is of unsound mind, ie that he was not fit to stand his trial or otherwise he might have a defence under s 27 of the Criminal Code.  Rather the psychiatrist considered that Mr Manning had “paranoid thinking” which he described as “considerable paranoid ideation with a tendency to misread his perceptions and developing emotional reactions from love to anger”.^[23]  There is no inconsistency as Mr Manning repeatedly asserts.  Contrary to his assertions the psychiatrist’s opinion does not show that his acts, in respect of which he was convicted, were “innocent”.

34. Mr Manning complains that the psychiatric report was “new evidence” that was not before the jury. A psychiatric opinion was not relevant to Mr Manning’s conduct of his defence.

35. I cannot see any merit in any ground raised. There has been no miscarriage of justice. An extension of time in which to bring the appeal should not be granted.

The Appeal Against Sentence

36. So far as the sentence is concerned, working backwards from the orders sought by Mr Manning may give some indication of what is in issue.  The orders that Mr Manning seeks, which I take from paragraph 101 of his outlines (there are other and different versions in his material) but which I have adapted to reflect what I think is his intent, are:

1. The 18 month sentence for the stalking offence be upheld;

2. That only 18 months of the suspended sentence (but at various places put as 12 months) be invoked and not the whole;

3. The suspended sentence to run concurrently;

4. That his time spent in prison up to the time of the hearing of his application be declared as time served under these sentences;

5. That there be immediate release on parole – after nine months served as at the time of the filing of the outline and 10 months more or less at the time of hearing;

6. “Full time release” be ordered to take effect on 28 April 2016 – so after serving a maximum of 18 months.

37. Despite the apparent acceptance of the 18 month sentence imposed by Long SC DCJ in respect of the stalking offence the effect of some of Mr Manning’s arguments is that the sentence imposed was manifestly excessive even though that term is not used.

An Unintended Consequence

38. It is evident that the learned sentencing judge intended that the commencing date for each of the sentences that he imposed, that is the suspended sentence that he ordered be served (pursuant to s 147(1)(b) of the Penalties and Sentences Act 1992 (Qld) – hereinafter referred to as “the Act”) and the sentence for the stalking offence, be the date Mr Manning commenced serving time in prison in relation to that later stalking charge, that is 28 October 2014.  Queensland Corrective Services has interpreted the orders made, I think accurately, as requiring that the suspended sentence commence from the date of the order – 6 February 2015.  That is so because s 159A of the Act permits the declaring of time served in presentence custody to be made only in relation to offences in respect of which the offender was then being held.  Mr Manning was not being held in relation to his breach of the suspended sentence.  Mr Manning will therefore be exposed to a longer period of imprisonment than his Honour intended.

39. The prosecution do not oppose correcting the orders made to reflect the evident intent of the sentencing judge.

40. The proposed orders that I have lettered (a), (c) and (d) therefore are not in issue. Those are the orders that his Honour either made or intended to make. Most of the arguments that Mr Manning advances seek correction of the points not now in issue.

41. If the orders are adjusted to reflect the intended starting date for the sentence then the parole release date remains unaltered. The term of imprisonment would come to an end after two years and 99 days from 28 October 2014 – that is 3 February 2017.

42. The arguments that remain then are that only part of the suspended sentence ought to have been ordered served – that either 12 or 18 months ought to have been invoked, and that parole release after nine (or ten) months served rather than 13 months should have been ordered.

The Factual Basis of the Sentence

43. Mr Manning’s complaints about the sentence also include the complaint that I have referred to above that the jury’s verdict and the judge’s sentencing views were “unreasonable” on the ground that the conviction came down to credibility of the complainant and himself.

44. Assuming the submission was intended to be an attack on the facts as found by the sentencing judge there is no merit in it. His Honour was conscious of the correct test to apply in finding the facts, he clearly gave careful consideration to the factual disputes that emerged in the course of the trial, and, despite his reservations about Mr Manning’s evidence, his Honour resolved two significant issues that were in dispute in favour of Mr Manning.^[24]  His Honour was quite entitled to make the findings he did.

45. A further ground argued is the learned sentencing judge erred in placing reliance on the report of the psychiatrist, a Dr Moyle, obtained following an order by the sentencing judge. It is submitted that “as Dr Moyle reserves all rights, meaning the views, expectations, opinions, and Beliefs leaves reasonable Doubts as they are NOT stated as Being True.”^[25]  Quite apart from the fact that the conclusion does not follow from the premise, the report is comprehensive and thorough.  Dr Moyle conducted an interview of four hours with Mr Manning.  He applied his evident expertise and experience.  To an extent his opinion favoured Mr Manning in the assessment of the risk of re-offending as “moderate”, which the sentencing judge acknowledged.^[26]  Uninstructed I would not have come to so favourable a view.  The legislation makes plain that such a report can be considered: s 15 and s 147(3)(v)(D) of the Act.  No relevant error in the report was identified either at the time of sentence or on appeal.  The sentencing judge would have been in error had he not placed reliance on the report.

46. There were many submissions made by Mr Manning contesting various facts, usually unidentified, but without any basis that I can determine, apart from his assertion. No error is demonstrated.

Manifestly Excessive

47. Despite the apparent acceptance of the 18 month sentence imposed by Long SC DCJ in respect of the stalking offence reflected in the orders he proposes Mr Manning argues in various places that the sentence was excessive. He puts the argument in various ways.^[27]

48. Mr Manning points out that if one adds together his various periods of imprisonment – 101 days of pre-sentence custody, 266 days served before the earlier sentence was suspended, and the two years and 99 days imposed by the learned sentencing judge – he will potentially be required to serve more than the three year sentence originally imposed.  That is so but irrelevant.  That situation comes about because he re-offended.  The 101 days of pre-sentence custody followed his conviction by the jury of the stalking charge.  That period of imprisonment was not imposed in relation to the earlier offence.  And whatever period Mr Manning serves of the two years and 99 days beyond the non-parole period, if any, will be because he will have breached his parole.

49. Mr Manning also points out that the minimum period he will be required to serve will exceed one half of the three year sentence originally imposed. That is so but again the observation does not establish the point – his re-offending justifies the result.

50. Finally Mr Manning contends, at least at some places in his argument,^[28] that the prosecution did not seek the imposition of a custodial sentence below.  That is incorrect.  The submissions made by the prosecutor included that “where there was repeated conduct of the same nature” the Court more readily imposes imprisonment^[29]; that it would appear that Mr Manning required the discipline of imprisonment and enforced treatment through parole programmes”^[30]; and there was express reliance on R v Rosenlund [1997] QCA 311, a decision involving two and a half years’ imprisonment, as being “more closely aligned” with the facts here.^[31]

51. I turn to the more general argument that the sentence imposed was manifestly excessive. I have mentioned the circumstances of the offending.

52. Mr Manning’s personal circumstances are relevant. He was aged 43 and 44 years at the time of the offending and 46 years at sentence. He operated a business in the Bundaberg area as a furniture removalist and carter. He had a criminal history that the sentencing judge accurately described as “lengthy” and of “particular significance”.^[32]  As mentioned, the most significant feature of that history was that Mr Manning breached a suspended sentence imposed inter alia for stalking.  He had committed a number of breaches of domestic violence orders.  He had served several periods of imprisonment.  His criminal conduct was explained to a degree by his upbringing which Dr Moyles described as dysfunctional with a history of fending for himself on the streets from an early age.

53. Dr Moyles identified some cognitive handicap with some paranoid ideation, as I have said, and a tendency to misread situations or gain false perceptions with inappropriate emotional responses. He thought that Mr Manning would benefit from psychological treatment and guidance.^[33]

54. This feature of the case – that the offender was somewhat socially inept and liable to misread situations with inappropriate responses – has figured in earlier decisions of this Court involving stalking offences: R v Kyriakou [1994] QCA 361; R v Rosenlund [1997] QCA 311.  The decisions were placed before the sentencing judge.  Probation was imposed by the Court on appeal in Kyriakou and, as I have said, a sentence of two and half years’ imprisonment was not disturbed in Rosenlund.  Those cases were decided when the maximum term of imprisonment was three years, not five years as now applies.  The fact situation in Rosenlund was much closer to the facts here than the facts in Kyriakou, as the prosecutor below asserted, but neither is really comparable.  Those cases do show that the sentencing discretion is very wide as the factual situation can vary significantly.

55. In any case the fact of there being an explanation found for the offending conduct in the psychological make-up of the offender cuts both ways – while it may make the conduct more explicable, and perhaps make general deterrence less important, personal deterrence remains an important feature, and the risk of re-offending remains.

56. Mr Manning submitted that there was “no violence, no threats … at the lower end of unlawful stalking.”^[34]  The absence of violence and threats does not necessarily result in a non-custodial sentence.

57. In R v Walton [2006] QCA 522 it was held (Williams, Keane JJA, Philippides J) that a sentence of imprisonment was justified even in the absence of any direct threat having been made.  In the same case it was held persistence in conduct is often the feature of stalking offences and as a result it has been said that “deterrence must always be the major factor in sentencing for the offence of stalking” (at [2] per Williams JA).

58. While it is true that there were no threats of violence or actual violence here there were several disturbing features. They include the lengthy period over which the conduct occurred; persistence in the conduct despite the complainant on numerous occasions attempting to dissuade Mr Manning, and despite the police also intervening; the lack of remorse; the risk of re-offending heightened by the complete lack of insight; the distress caused to the complainant; and the lengthy criminal history significantly involving an offence of stalking.  As to that lack of insight I observe that in his submissions on appeal Mr Manning asserted that he had been convicted “for an act of kindness”,^[35] and in relation to the complainant’s reported fear of being followed, as she said by him: “most people only have fear of being followed if they’ve done something wrong to cause their own fear.  Could be taken as an unsound mind or a delusional belief as well”.^[36]  Mr Manning is completely oblivious to the point made by Dr Moyle (and reflected in the sentencing judges remarks and approach) that “the effect of stalking on the victims can be quite traumatising and induce a sense of distrust and fear”.^[37]  That is what Mr Manning has done to this victim.  That is why the legislature characterises his conduct as criminal in nature.

59. In my view this case was not at the “lower end of unlawful stalking”.

60. As to the length of the sentence I note that in R v Layfield [2003] QCA 3 and R v Millar [2002] QCA 382, longer custodial sentences (two years imprisonment) were imposed there, but in those cases the stalking had involved threats of violence.  It was appropriate that the sentence here be less than the sentences imposed in those cases.

61. Apart from the arguments mentioned, and bald assertion, Mr Manning did not attempt to demonstrate that the sentence was manifestly excessive. In my view the sentence imposed was well within the exercise of a sound discretion. No error is demonstrated in the approach of the sentencing judge.

A Non-Parole Period Longer than the Half Way Point

62. Mr Manning’s principal argument seems to be that the sentencing judge’s discretion in setting the non-parole period was restricted such that his Honour could not order a non-parole period that went beyond the mid-point of his sentence.^[38]  The argument goes that his sentence was 18 months imprisonment and hence the maximum non-parole period was nine months.  It was submitted that his Honour had no power to order parole in relation to the suspended sentence as he was not the original sentencing judge.

63. These submissions are misconceived. As to the last point it reflects the law as it once was: R v Waters [1998] 2 Qd R 442.  But the legislation has since been amended to give the judge dealing with the suspended sentence those powers: see Division 3 of Part 8 of the Act.

64. The submissions assume that the sentencing judge cannot impose a sentence that extends beyond the half-way point which is wrong.  And they ignore the fact that there were two sentences imposed albeit that the sentences imposed were to be served concurrently.  Mr Manning faced two years and 99 days imprisonment, not 18 months.  Hence the one-half mark was about 13 and a half months.

65. The original sentence imposed that was the subject of the suspension was for a period of three years. It would not have mattered if it was longer. This Court has held that where a court activates the whole or a part of a previously suspended sentence and the activated part is three years or less the court is empowered to set a parole release date under s 160B of the Act: R v Newman [2008] QCA 147.

66. Because the sentence imposed here was for a term of less than three years and because the offences were not serious violent offences or sexual offences, the date upon which Mr Manning was to be released on parole was any date fixed by the learned sentencing judge which fell within any day of his sentence: s 160B(3), s 160G(1) of the Act; Corrective Services Act 2006 (Qld), s 199(1).  The learned sentencing judge proceeded in accordance with these provisions.  He was clearly correct in doing so.

67. The point that I think Mr Manning endeavours to make is that the default parole eligibility date where the sentence imposed exceeds three years or involves serious violent offences or sexual offences is after the prisoner has served one half of the sentence: s 184(2) Corrective Services Act.  But it is clear that he does not fall into that category of prisoner.

68. The parole period set by the learned sentencing judge was just below the half-way point of the sentence. Obviously the 13 month non-parole period exceeded one half of the 18 month sentence imposed for the stalking offence and it is true that in the normal course the date fixed would not normally exceed the one-half mark. There are a number of authorities that have held that “good reason” must be demonstrated before fixing a parole release date at a point later than half of the term: R v McDougall & Collas [2006] QCA 365 at [14], [21]; R v Assurson [2007] QCA 273 per Williams JA at [22], per Keane JA at [27], and per Mullins J at [33]-[34]; R v Kitson [2008] QCA 86 per Fraser JA at [15]-[17].  But here there was good reason – Mr Manning not only stood to be sentenced for the stalking offence but also the suspended sentence.  To adopt the approach that Mr Manning urges would mean that no punishment was imposed for his breach of the suspended sentence.  It could not be seriously argued that the sentencing judge’s discretion miscarried by imposing some additional punishment where a like offence is committed within the operational period.  I will return to that subject.

The Impact of the Criminal History

69. Mr Manning argues that the prosecutor’s statement below, to the effect that different sentencing options may have been open but for his earlier history of offending, demonstrates that the sentence imposed was excessive.^[39]  The prosecutor’s statement is obviously correct.  The relevant principles are set out in sub-sections 9(10) and 9(11) of the Act:

“(10)In determining the appropriate sentence for an offender who has 1 or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to—

(a)the nature of the previous conviction and its relevance to the current offence; and

(b)the time that has elapsed since the conviction.

(11)Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.

70. The implicit contention advanced is that Mr Manning’s prior criminal history was not an aggravating feature. That cannot be accepted. A second offence of stalking, albeit of a different complainant and with a different purpose is nonetheless a very worrying feature. And, as I have said, I cannot accept that the sentence imposed was “disproportionate to the gravity of the current offence”.

71. Mr Manning complains that the 18 month sentence is excessive and unjust because of the prosecutor’s concession below that his offending on this occasion was “different in time and to a separate complainant” than his prior offending had been. I think the point being made is that while the offence on the earlier occasion bore the same label as the later offence it was of a different character – Mr Manning says at one point “a very different type of stalking with different facts”.^[40]  While that is certainly accurate it does not help Mr Manning.  Both offences were serious, the former offence being the more serious, but the lesser level of criminality in the later offence does not suggest that any benign view should be taken of Mr Manning’s conduct.

72. The offending conduct on the earlier occasion had involved using a vehicle as a weapon to wreak property damage on Mr Manning’s former partner and her lover. There was no violence nor physical harm caused to person or property contended for by the prosecution in the more recent offending. It is entirely appropriate then that the sentence for the stalking offence be considerably less than the earlier one. But the features that I have earlier mentioned and the significant emotional harm done to the complainant, albeit unrecognised by Mr Manning, justify condign punishment.

73. Normally sentences increase, not decrease, if an offender comes again before the courts for the same type of offence. There was good reason why that course was not followed here – the very point Mr Manning makes: “a very different type of stalking with different facts”.

The Suspended Sentence

74. Mr Manning complains that the learned sentencing judge erred in ordering that he serve the whole of the suspended sentence. He fails to identify any specific error but argues effectively that the overall effect of the sentence is unjust because it is excessive.  Mr Manning’s submission at various points seems to be that given the imposition of the sentence of 18 months imprisonment for the subsequent offending, or given the non-parole period set, then it was unjust to order that any more than 12 months, or at other points 18 months, of the suspended sentence be served.^[41]

75. The principal reason advanced for so limiting the period to be served seems to be that it would have the effect of obtaining Mr Manning’s immediate release.

76. While it cannot be doubted that the setting of the sentence involves an integrated process, in my view the submission ignores the principles that must apply.

77. When an offender breaches a suspended sentence by re-offending the court is required to make an order that the whole of the suspended term of imprisonment be served unless it consider that it would be unjust to do so: s 147(2) of the Act.  Section 147(3) provides:

“(3)In deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment the court must have regard to—

(a)whether the subsequent offence is trivial having regard to—

(i)the nature of the offence and the circumstances in which it was committed; and

(ii)the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and

(iii)the antecedents and any criminal history of the offender; and

(iv)the prevalence of the original and subsequent offences; and

(v)anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example—

(A)the relative length of any period of good behaviour during the operational period; and

(B)community service performed; and

(C)fines, compensation or restitution paid; and

(D)anything mentioned in a pre-sentence report; and

(vi)the degree to which the offender has reverted to criminal conduct of any kind; and

(vii)the motivation for the subsequent offence; and

(b)the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and

(c)any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment.”

78. In 1996 the Court of Appeal (constituted by a different bench of judges on each occasion) considered suspended sentences in concurrently published judgments: R v Bowen [1997] 2 Qd R 379; R v Holcroft [1997] 2 Qd R 392 and R v Holley; Ex parte Attorney-General (Qld) [1997] 2 Qd R 407; (1996) 90 A Crim R 37.  Those judgments are authority for the propositions^[42] that:

1. The starting point required by s 147(2) was that the full period of imprisonment which was earlier suspended should be ordered to be served unless the relevant circumstances made such a sentence unjust.  Prima facie, an offender would be ordered to serve the whole of the suspended sentence, that being the normal consequence of committing a further offence punishable by imprisonment;

2. A suspended sentence having been imposed, in circumstances in which a prison term was perfectly justifiable with suspension (in whole or in part) because of circumstances then prevailing, being conditional upon the offender mending his or her ways and leading a law abiding life, non-revocation of suspended sentences would tend to undermine the integrity of the system of such sentences and their effectiveness as a means of deterring future offenders;

3. What was important were the circumstances in mitigation which had since arisen, and which would render it unjust for the offender to serve the whole of the suspended term which would have been served had it not been for the mitigating circumstances prevailing when it was imposed;

4. The nature and circumstances of the subsequent offence would ordinarily be relevant to the nature of the order appropriate under s 147(1), as are all material circumstances which have arisen since the suspended sentence was imposed, in deciding whether it would be unjust to require service of the whole of that sentence;

5. The relevant circumstances include the date the subsequent offence occurred during the operational period of suspension, and whether it was in a different category from that for which the suspended sentence was imposed;

6. A court sentencing under s 147 was not sitting on appeal from the original sentence, and was required to accept it as properly made, although the length of the suspended sentence might arise for consideration, in the light of circumstances, since it was imposed in determining if it was unjust to order that the whole of that term be served;

…

8. A trivial offence committed late in the suspension period should not ordinarily activate the imprisonment;

…

(xi)Rehabilitation of an offender or genuine attempts thereat are always relevant circumstances, if emerging after the imposition of the suspended sentence.

79. It seems to me quite evident that in applying those principles to Mr Manning’s case there was only one decision that the learned sentencing judge could come to. In my opinion, far from any error being shown, the learned sentencing judge was plainly correct in forming the judgment that he did – that it would not be unjust to order that the whole of the suspended sentence be served. There were differences between the facts of, and motivations behind, the two offences but both were serious.

80. The crucial point is that the stalking offence was no “trivial” offence within the meaning of s 147(3). As the sentencing judge observed Mr Manning caused the complainant “serious emotional harm” and over a significant period. He pursued her to her home and to her workplace. She changed her shifts at work and selected her residence in an effort to avoid him. He was twice warned by police about his conduct towards the complainant but did not desist. It is plain that Mr Manning had no insight into, or concern whatever, for the effect that his pursuit of the complainant had upon her. His conduct of the trial (where he represented himself) suggests that he has learnt nothing. While the offending conduct commenced in the last 18 months or so of the operational period it was persistent and extended over a significant period of time. Mr Manning did not mend his ways, or lead a law abiding life. There were no circumstances of mitigation that I can see that should have impacted on the decision. As well the original offending was on any view serious and involved physical and emotional harm to the victim.

81. The sentencing judge was mindful that the stalking offence occurred late in the operational period. That factor led him to the view that he should not order that the suspended sentence be cumulative to the sentence that he imposed.^[43]  There is no error in his Honour’s approach.

82. Mr Manning repeats his argument that he is being punished twice (if not three times he contends) in this context – “for the operation of suspended unlawful stalking and restraining order, [and] for the act.”^[44]  He is not.  He is now being required to serve the imprisonment ordered in respect of his criminal conduct in 2008, which was suspended on the condition that he lead a law abiding life, and for his separate criminal conduct in 2012-2013.  The restraining order might have the effect of preventing him from offending again.

The Non-Parole Period

83. Mr Manning is correct in his assertion that the length of the non-parole period needs to be considered in the context of the order that he serve the whole of the suspended term: R v Norden [2009] 2 Qd R 455; [2009] QCA 42.  There, Holmes JA (as her Honour then was) said (Keane and Fraser JJA agreeing):

“[14]… What must be borne in mind is that a judge acting under s 147 is not re-sentencing an offender, but dealing with him for a breach of suspended sentence.  The first step in that process is to consider whether it is unjust to make an order that the offender serve the whole of the suspended imprisonment.  Necessarily, in deciding whether it is unjust to so order, relevant considerations will be that a parole release date or parole eligibility date is to be set, and when it is to be set.”

84. In my judgment no error is shown in the ordering that the whole of the suspended term be served bearing in mind the setting of the non-parole period at 13 months. Plainly his Honour thought that setting a period around the one-half mark of the time to be served was appropriate. I agree. Here there was no remorse, no co-operation and still no insight. The default non-parole period indicated in the legislation (eg s 184(2) Corrective Services Act) is a reasonable guide to a sound exercise of the discretion.

85. Mr Manning submits in relation to the non-parole period:

• “that a further suspended sentence would be of more Benefit to the appellant than parole, as parole would hinder the appellant’s business and employment future aspects – against the views of Dr Moyles’ report.  Parole is a Disadvantage to the appellant, as Being a self-employed, furniture removalist – interstate Truck Driver and Parole would Not allow the Appellant to work outside of, or leave Queensland which is unjust to the Appellant and hinders his further employment opportunities on release from custody.”

• “That the orders made are unjust, as the Appellant did Not agree with the orders made”^[45]

86. Plainly Mr Manning’s agreement or otherwise with the orders imposed is neither here nor there. However the submission does give some added insight into his complete lack of understanding of the intent behind the orders.

87. There were compelling reasons to have Mr Manning supervised when released. The sentencing judge summarised the relevant matters:

“Dr Moyle has also assessed a moderate risk of future repetition of your fixation on persons who either offend you or to whom you become attracted, and that that risk needs to be addressed through treatment of your mental health and assistance towards understanding appropriate social relationships and towards re-establishing involvement in the community, with employment and interests.

An obvious concern, however, which was even demonstrated to the Court, is your apparent lack of appreciation of or acceptance of the inappropriateness of your behaviour, Mr Manning.  Such a consideration tends to support the Prosecution submission for there to be a lengthy restraining order for the benefit of the community and the complainant and even for you.

…

It is also desirable that when you are released back into the community, that that occurs under the supervision of a parole regime.  And, given your past history, that is best achieved by fixing a parole release date.”^[46]

88. Given the risk that Mr Manning presents to others in the community, as identified by Dr Moyles, upon his release it is essential that he be subjected to supervision. The imposition of parole hopefully will achieve the aim of protecting the community by ensuring the risk that he presents is managed.

89. Against this Mr Manning argues that he had been on bail awaiting trial for 18 months without contacting the complainant,^[47] but that fact was well known to the sentencing judge and Dr Moyles, does not necessarily reflect what may happen when not facing a trial, and comes nowhere near meeting the risk identified by Dr Moyles.

90. Parole will not necessarily mean that Mr Manning’s employment will be interfered with as he assumes. That will be a matter for the parole authorities to consider. Nonetheless it is relevant to bring into account Mr Manning’s personal circumstances, but those circumstances do not overwhelm other considerations.

91. In setting the non-parole period the authorities make clear that the task of the sentencing judge is to set the “minimum time that … justice requires that [the defendant] must serve having regard to all the circumstances of his offence”: Power v The Queen (1974) 131 CLR 623 at 628 per Barwick CJ, Menzies, Stephen and Mason JJ; Deakin v The Queen (1984) 58 ALJR 367, at 367; 54 ALR 765, at 766; Bugmy v The Queen (1990) 169 CLR 525 at 530-531 per Mason CJ and McHugh J; R v Shrestha (1991) 173 CLR 48 at 63 per Brennan and McHugh JJ.  In that latter case Brennan and McHugh JJ concluded, after canvassing a number of authorities:

“It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might be reasonably regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public.”

92. The observations in R v Ruha, Ruha & Harris; Ex parte DPP (Cth) [2010] QCA 10 at [46] are also pertinent:

“[P]rovisions for early release confer a benefit upon the offender but such provisions are made in the interests of the community; the non-parole period is the minimum period of imprisonment that justice requires the offender to serve; it mitigates the offender’s punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period; and relevant factors to be taken into account in determining the length of the non-parole period include the length of the head sentence and its position in the permissible range, the seriousness of the offence and the prospects of rehabilitation, and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence.”

93. In summary the decision to require parole and not merely suspend was plainly the correct one. The head sentence was not by any means at the higher end of the permissible range. The stalking offence was serious. There are legitimate concerns about rehabilitation.

94. I am not persuaded that the learned sentencing judge erred in the exercise of his discretion in setting the non-parole period that he did. If that period was limited, as Mr Manning urges it should be, and assuming the imposition of an 18 month term for the stalking offence, then the imposition of the suspended term of imprisonment would have no or little practical effect. There are good reasons why it should.

The Restraining Order

95. Mr Manning submits that the learned sentencing judge did not have the jurisdiction to make the order.^[48]  He did: s 359F(2) of the Criminal Code.

96. Mr Manning complains that the imposition of the restraining order (under s 359F of the Criminal Code) was unjust as it had the effect, when combined with the sentence of imprisonment, that he “received double jeopardy”.^[49]  The complaint is unfounded.  The purpose of the restraining order is quite different to the purpose behind the sentence and indeed does not form part of the sentence: R v Johnston [2008] QCA 291 at [8] per Fraser JA, Keane JA and Atkinson J agreeing.  Its purpose is plainly to protect the complainant not punish Mr Manning.

97. Mr Manning also contends that as he does not agree with the imposition of the orders they are unjust.^[50]  The submission tends to show why the orders are necessary.

98. Mr Manning complains that the restraining order was made for a period of 10 years. He points out that a domestic violence order can only be effective for two years. The argument involves a non-sequitur. There was very good reason to make the order. The psychiatrist had indicated in his report that the complainant was at some risk from Mr Manning and the risk of recurrence would be lessened if such an order was imposed.^[51]  If Mr Manning wishes he can apply to have the order set aside: s 359F(7).  The Court seized of such an application will of course need to be persuaded that Mr Manning is no longer a risk to the complainant.

Conclusion

99. Apart from the unintended consequence of his Honour’s orders previously referred to there is no merit in Mr Manning’s many complaints.

100. I would order:

1. That the application for time to be extended in which to bring the appeal against conviction is refused.

2. That time be extended in which to bring the application for leave to appeal against sentence.

3. That the application for leave to appeal against sentence is granted.

4. The appeal is allowed to the extent that the order that the applicant serve the whole of the suspended imprisonment being a period of two years and 99 days be set aside.

5. That the applicant serve 728 days of the suspended imprisonment.

6. That otherwise the orders made by Long SC DCJ on 6 February 2015 be confirmed.

101. The effect of those orders is to reduce the period served in relation to the suspended term of imprisonment by the 101 days served in pre-sentence custody. The parole release date remains as 28 November 2015. The overall period of imprisonment intended by the learned sentencing judge remains the same. The restraining order remains in place.

102. Section 147(4) of the Act requires that reason be given if the Court considers that it would not be just to order that the whole of the suspended term be served. I hold that view because the orders that I propose will have the same effect as if the Court ordered that the whole period be served, given the time spent in custody that cannot be declared because of s 159A of the Act.