R v Amundsen[2016] QCA 177

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.
2. GOTTERSON JA:  I agree with the orders proposed by Morrison JA and with his Honour’s reasons for them.
3. MORRISON JA:  On 1 November 2014, Mr Amundsen was convicted of unlawfully stalking a woman (C) after the end of a relationship with her.  The stalking occurred over a nine month period between 2 September 2011 and 5 July 2012.
4. The conviction came after a 13 day trial in the District Court at Brisbane.  Mr Amundsen represented himself during the trial, and called evidence but did not give evidence himself.  Much of the conduct particularised in the stalking charge was admitted by Mr Amundsen, though for various reasons he contended it did not constitute stalking.  Other conduct was denied.
5. Mr Amundsen was sentenced a month later, on 1 December 2014, to three and a-half years’ imprisonment, with a parole eligibility date set at 1 March 2015, three months after sentence.  The sentencing Judge declared that 284 days^[1] of pre-sentence custody be deemed time served under the sentence.  A restraining order for a period of five years, in respect of C and her daughters, was made.
6. Mr Amundsen seeks to appeal against his conviction, and applies for leave to appeal against his sentence.  Because his application and appeal are out of time he seeks an extension of time.  He also seeks to reinstate an appeal (against conviction and sentence) that was abandoned in September 2015.
7. On the application for an extension of time the issues are whether:^[2]

1. good reason for the delay has been shown; and
2. it is in the interests of justice to grant the extension; and that
3. may necessitate a provisional assessment of the strength of the proposed appeal, the prejudice to the respondent, and the length of the delay.

8. The application to reinstate the appeal raises the issue of whether it is necessary, in the interests of justice, to do so.^[3]  In assessing that issue the court looks at the reason for the abandonment, the reason for the delay and the prospects on appeal.  Those issues are evidently similar to those on the application for extension of time.
9. As to the appeal against his conviction, Mr Amundsen raised a number of discrete points, but his overall submission was that the conviction was unsafe and unsatisfactory as the evidence would not support it.
10. The proposed appeal against sentence is on the ground that it was, in the circumstances, manifestly excessive.  Mr Amundsen contends it should have been of the order of two and a-half years, and because of the time he has spent in prison he should be immediately released.

The stalking offence

11. Mr Amundsen was charged with 19 acts directed at C over a period of nine months.  Together they constituted the charge of stalking, contrary to s 359E of the Criminal Code 1899 (Qld).  Of those, he was convicted of 14, summarised this way in the sentencing remarks:

1. 2.9.11 – loitering near the school where C worked;
2. 3.9.11 – loitering near where C was at a work conference;
3. 5.9.11 – calling C from a public phone box, using a false name;
4. 6.9.11 – emailing C, using a false name;
5. 10.9.11 – loitering near, watching and approaching a place where C was to visit;
6. 30.9.11 – committing an intimidating and harassing act by prevailing on his mother to contact C by telephone;
7. November 11 – committing an intimidating and harassing act by prevailing on his mother to telephone numbers from C’s phone records; family and friends contacted C to tell her of the calls;
8. 6.1.12 – committing an intimidating and harassing act by having a private investigator follow C;
9. 23.2.12 – sending C a 118 page letter;
10. May 2012 – contacting C by sending two large letters to her school and a friend;
11. 3.7.12 – sending C a message by a computer system called Zoosk;
12. 4.7.12 – committing an intimidating, harassing and threatening act by having Dr Wilkie contact C;
13. 5.7.12 – sending C a message by MSN Messenger, using a false name; and
14. 5.7.12 – committing an intimidating, harassing and threatening act by accessing C’s Bigpond and Vodaphone accounts and changing her passwords.

Background to the offences

12. When the relationship with C broke down, Mr Amundsen pursued her in an effort, so he said, to persuade her to resume the relationship.
13. Mr Amundsen’s attitude was exemplified in this submission at sentencing:

“… when my dad died I had [the ex-partner] as my protector. She took over that role. And what I have done is I have transferred that protector role onto each subsequent partner. I trusted [C] to continue that role, and, knowing that I had been bastardised throughout my childhood, I simply wanted to maintain the protection she gave me. There was never any intention to hurt [C], and if I’ve caused her fear I apologise, but it wasn’t intentional. I realised, when [C] and I had those conversations, that I was going to lose my protector and I simply reasoned that if could go and talk to her face to face I might have a chance to talk her around. I might be able to save the situation. This is not a case of some mean-spirited mongrel of a human being trying to scare her. This is a man completely wracked with fear. I’ve been bastardised through my life, and I have turned to each partner I’ve had to be that protector,”^[4]

…

“I believe there has always been a moral obligation [to be his protector]. I’m a very conservative Christian, and I behove once that bond on all levels occurs, you’ve made a commitment. I was brought up in a very conservative Catholic Christian family where once those bonds on all levels occur it is a lifetime commitment. I can’t be blamed for my faith. I can’t be blamed for my beliefs. The way my conservative parents brought me up was that I am bound to follow my values, and no man should be imprisoned for following his religious beliefs.”^[5]

14. That was reflected in submissions to this Court where Mr Amundsen said that when a man and a woman have sexual intercourse, that creates a “union for life”.^[6]  He even went so far as to say, during one of a number of interjections during the sentencing remarks, that C had said the same thing:

“Her exact words to me were, your Honour, for the record: you sleep me with me. It’s a contract for life, because I’m a Christian too.”^[7]

Mr Amundsen’s outlines

15. Mr Amundsen filed a number of “outlines”, totalling 136 pages.  They contained a great deal of repetition, inadmissible assertion and evidence that was not before the learned sentencing judge.  I shall only refer to those parts that are relevant, and by their number (No.1 to No. 5) as identified with Mr Amundsen at the commencement of the hearing.^[8]

Suggested grounds of appeal

16. The various grounds are best dealt with as part of the discussion of each ground.

Mr Amundsen’s antecedents

17. Mr Amundsen was 46 years old at the time of offending, and 49 at sentence.  He had a prior criminal history that included two significant matters.
18. In 1993 he was sentenced to 18 months’ imprisonment for forgery, attempting to pervert the course of justice, and perjury.  The circumstances were that he was charged with a breach of a domestic violence order.  In defending that, Mr Amundsen forged a document on a business letterhead, which purported to be a computer printout proving he was not at the location alleged, or at the times.  He gave evidence it was genuine but that the authors could not attend court.  After he was acquitted of that charge it was shown that the document was a forgery.  Two witnesses were approached by Mr Amundsen to falsely give evidence that they were the authors of the document.^[9]  Mr Amundsen described these efforts, with no hint of irony, as being “to try to improve my case”.^[10]
19. In February 2008 he was convicted of possession of a large quantity of explosives, detonators and nails, dishonestly obtaining the explosives and detonators, and using a carriage service to make a threat to kill.  Further, an indictment was presented charging him with forgery of a medico-legal report used on a bail application.^[11]
20. Mr Amundsen sent emails purporting to be from Al-Qaeda, threatening attacks.  He blamed the parents of an ex-partner for a relationship breakdown, and was seeking to scare them.

Personal circumstances alleged by Mr Amundsen

21. What follows are matters that Mr Amundsen told the learned sentencing judge in his submissions on sentencing.  For reasons which will become apparent they must be treated with great circumspection.
22. He had spent considerable time on remand in recent years, including 18 months on the stalking charges.  In addition he had spent 22 and a-half months in an isolation cell, when charged with terrorism offences that were eventually dropped.  Those charges were replaced with those for which he was convicted and sentenced in 2008 (including possession of explosives and using a carriage service to make a threat to kill).
23. He had been diagnosed by Dr Wilkie with post-traumatic stress disorder in 2007.
24. He had a good work record, having been employed in public relations and teaching, and having been self-employed.  That included work at Channel 7 from 1982 to 1989, in various positions.  Then at the Brisbane Airport as a public affairs and community relations officer from 1990 to 1994, during which he received three commendations.  After that he had his own media company successfully doing broadcast and graphic design work.  Some of his clients were Warner Brothers, Volvo Motorsport, Boeing and John Holland Constructions.
25. His mother was his sole remaining relative, and he was her sole carer.  She was 87 and suffering a terminal cancer condition.  His family home was at risk because his accumulated wages were required to maintain it, and they were due to run out in the middle of December.
26. Mr Amundsen said he had lived at the same address since 1965, had been a member of his local church since 1986, and a member of the Lions on and off since 1990.
27. When he was in primary school and high school, because of his appearance he received “extensive bastardisation” and was “extensively bashed, almost every day from grade 2 right through grade 12”.  As a result of that Mr Amundsen said he experienced “a real experience of vulnerability and fear”.  He had a very loving and supportive father who would regularly intervene at school.  His father passed away in 2005.
28. In 1995 he formed a relationship with a partner, for eleven and a half years ending in early 2006.  Mr Amundsen described her as “my only sole protector – the sole person who could look after me and care for me”.  During that relationship he discovered that she was being sexually molested by her own father.  The father was opposed to Mr Amundsen because he was “a conservative Christian”.
29. When that relationship ended Mr Amundsen found C, who “initially projected herself as a kind-hearted and caring person, and she promised me that her and her daughters would be my new protectors, that they would care for me, they would support me and help me”.

Report tendered at sentencing

30. During the sentencing hearing Mr Amundsen sought to rely upon a 30 page report from Dr Wilkie which he said had been received on Friday 28 November 2014.^[12]  He also said that he had faxed Dr Wilkie and had his mother make two calls to Dr Wilkie, in an attempt to have him attend at court for the sentencing.^[13]
31. Once the report had been perused it raised significant concern with the prosecutor as whether it was a genuine report by Dr Wilkie.^[14]  It became Exhibit 8.  In the face of the Crown’s submission that it be given no weight, Mr Amundsen sought to withdraw it.^[15]  The learned sentencing judge also had concerns over passages that appeared to have been written by Mr Amundsen.^[16]
32. Before this Court the Crown relied upon an affidavit of Mr Negerevich.  It exhibited a letter from Dr Wilkie dated 2 December 2014, which said that the report was a fabrication, obviously done by Mr Amundsen.  Further, Dr Wilkie had not spoken to or corresponded with Mr Amundsen in 2014, and had last interviewed him in September 2013.
33. There was no challenge to the letter of Dr Wilkie being received, nor to what it said, except in so far as this submission by Mr Amundsen might be said to do so:^[17]

“The prosecution makes much of an angry letter from Dr Wilkie, but fail to add that Dr Wilkie’s penning of the letter followed the same 10-year clique of officers telling Dr Wilkie (whilst I was [in] custody, and, unable to explain) – an alleged breach of bail, – was thrown out by Magistrate Sherrin, and that no forensic evidence of an alleged false allegedly forged report has been found. Indeed much of the content of the alleged ‘forged’ report bares (sic) remarkably similar content to the earlier Wilkie report content.”

34. However, that submission accepts that Dr Wilkie actually wrote the “angry letter” and merely suggests that there is no forensic evidence to support what Dr Wilkie plainly says, namely that the report is not his.  There is only one person who has an interest in forging such a report, and it is not Dr Wilkie.  Therefore the submission really attempts to shrug off the fact of the forgery.
35. Mr Amundsen plainly fabricated the report that was tendered at his sentencing.  In my view, that alone would compel the conclusion that Mr Amundsen’s assertions cannot be relied upon unless independently corroborated.  However, that conduct does not sit alone.
36. As appears in paragraphs [18] and [19] above, Mr Amundsen had committed this sort of forgery before, in similar circumstances.  In 1993, as part of his defence of a charge Mr Amundsen forged a document on a business letterhead, purporting to prove he was not at the location or at the times alleged in the charge.  He was convicted of forgery and perjury.  In 2008 an indictment was presented charging him with forgery of a medico-legal report used on a bail application.
37. Further, Mr Amundsen’s submissions seem to shrug off the forgery: see quote in paragraph [33] above.
38. In my view that demonstrates a persistent course of dishonesty, a preparedness to pervert the course of justice, and an unrepentant attitude to such conduct.  Consequently, I am not prepared to rely upon his assertions unless they are independently corroborated, demonstrably against interest, or otherwise accepted by the Crown.

Approach on sentence

39. The learned sentencing judge mentioned a number of factors that he took into account in determining what sentence to impose:

1. Mr Amundsen’s age (46 at the offending, 49 at sentence);

2. his personal circumstances, including his ill mother, and the fact that he had had a difficult life;
3. that he was an intelligent person with a good work record, in employment in public relations, teaching and his self-employment;
4. his prior criminal history; and the fact that Mr Amundsen had sought to downplay that history as being accidental;
5. the fact that he had not committed any further offences, nor had any further contact with C, since 5 July 2012;
6. his lack of remorse, indicated by: disparaging and denigrating C during the trial, notwithstanding the significant impact upon her; casting aspersions on the police officers; falsely claiming that a signature on a bail document was not his;
7. his lack of insight into what effect his conduct had on C; that what Mr Amundsen did would cause C apprehension or fear, reasonably arising in all the circumstances, of violence or detriment to her or her family; C had to change the locks on her house, and take other actions to avoid contact;
8. during the period of offending Mr Amundsen breached a bail undertaking not to contact C; that order was made on 8 June 2012;
9. disturbing features of his conduct, including his persistence in contacting C, the contents of the 188 page letter, and his insistence that once he and C had sex, that meant they were married;
10. the need for general as well as personal deterrence;
11. that the need for protection of the community was a significant factor in any sentence;
12. that Mr Amundsen had been in custody a total of about 18 months^[18] but only 284 days could be declared time served; and
13. the comparable decisions put forward.

40. The learned sentencing judge concluded that Mr Amundsen should be observed and assessed before being released, and said:^[19]

“I could not, in this case, fix a parole release date in all of the circumstances, when I consider that the appropriate penalty in any event was three and a half years, having regard to the circumstances in this case.”

41. Mr Amundsen sought to clarify the sentence, and in particular the allowance for time served, prompting this explanation:^[20]

“You’re getting 18 months credit in the sense that I am fixing your parole eligibility date in three months time. Because I’ve sentenced you to three years and six months, you would normally have to serve half of that, which would be serving 21 months in custody. I’ve taken 18 months off it, and I’ve said to the authorities have a look at this fellow on and from the 1^st of March 2015, and see should he be released back into the community.”

Discussion – extension of time and reinstatement

42. Mr Amundsen has to show good reason for the delay between when the time expired for filing a regular appeal against conviction (29 November 2014) and application for leave to appeal against sentence (29 December 2014).  His outlines address that issue in a variety of ways, as he did in his oral address.^[21]
43. He was convicted on 1 November 2014.  An exhibit to the affidavit of Mr Negerevich reveals the essential steps thereafter:

1. on 3 November 2014 a 15 page handwritten document was received from Mr Amundsen, entitled “Appeal Against Conviction”;

2. as it did not conform with the rules, the registry informed him that it would not be accepted for filing, and he was given copies of the correct forms;
3. further material was received by the registry, still in incorrect form;
4. on 7 November 2014 Mr Amundsen sent two of the proper forms, but they were not correctly filled in; one appealed against the sentence, but the sentence had not taken place;
5. on 18 and 26 November 2014 he was told that incorrectly completed material could not be accepted;
6. on 1 December 2014 the sentence took place;
7. on 29 June 2015 Mr Amundsen sent a letter to the registry referring to his “appeal lodged on 22 December 2014”; there was no such document and he was told so;
8. on 5 August 2015 an application for extension of time to appeal and a notice of appeal were accepted for filing;
9. on 4 September 2015 Mr Amundsen filed a notice of abandonment; he did that because he was (correctly) told by a Corrective Services officer that he could not have his application for parole progressed while he had an outstanding appeal;
10. on 1 October 2015 Mr Amundsen sought to have his application reinstated; between then and 16 February 2016 he was twice told that the registry could not reinstate the application and he needed to file a new application;
11. on 23 March 2016 Mr Amundsen filed the present application for an extension of time and for leave to appeal against sentence.

44. As can be seen the appeal against conviction was out of time by eight months if one takes the 5 August 2015 filing, and 16 months if one takes the 23 March 2016 filing.  As for the application for leave to appeal against sentence, the delay is correspondingly seven months and 15 months.
45. Mr Amundsen submitted that there were various reasons for the delay, including:

1. he did not get transcripts of the trial until March 2016;

2. he did not get assistance from Counsel until June 2015, and the advice was not received until December 2015;
3. access to computers while in prison was limited, particularly during the period between December 2015 and January 2016 when there was no access, and between mid-January 2016 and April 2016 when access was drastically reduced;
4. forensic analysis of his own computers was delayed because they were not returned until March 2015, and the report from them was not available until November 2015;
5. another trial in the District Court, his prosecution of 11 private prosecutions, and the conduct of civil litigation in the Maroochydore Magistrate’s Court occupied his time in 2015;
6. he had to spend time dealing with his mother’s illness, including open heart surgery and six periods of hospitalisation.

46. I note one particular submission by Mr Amundsen, which highlights the difficulty in accepting his reasons at face value.  In Outline No. 3 Mr Amundsen said that:^[22]

“Suffering Post Traumatic Stress Disorder I find legal matters extremely stressful and distressing, and consequently can only spend around 2 hours spread over a day, and often become physically ill dealing with it, so analysing evidence and exhibits takes me sizerably (sic) long periods into weeks, making analysis and development of argument difficult and slower than most people, not because of any lack of intelligence, but because of the stress ... With legal matters often frightening I experience prolonged mental lock ups which necessitate long breaks…”

47. No such difficulties were evident in his appearance before this Court, and they are belied by his conduct of the 13 day trial in the District Court, as well as his pursuit of the other litigation and prosecutions referred to in paragraph [45](e) above.
48. There was no sworn evidence to support what he said, and the Crown do not accept them.^[23]  For the reasons given above, in the absence of independent corroboration the assertions cannot be relied upon.
49. The delay is significant, but it has to be acknowledged that Mr Amundsen signalled from an early time that he intended to appeal both the conviction and sentence.  Whilst he did so in an inappropriate form, and complicated by attempting to file documents that evidently followed the format of his outlines in this Court, he was diligent in sending appeal documents to the registry.
50. The explanation suffers for three particular reasons.
51. First, Mr Amundsen had formulated the grounds that were required in the proper forms by 7 November 2014.  True it was that he was premature in respect of the sentence as it had not then occurred, but the “manifestly excessive” ground was evidently not difficult to formulate.  He was told to correctly complete the forms but did not do so.  There was nothing further from him for nearly eight months, when on 29 June 2015 he wrote again.  There is no sufficient explanation for that delay, given that the grounds had already been formulated, if not by the initial 15 page letter on 3 November 2014, then by 7 November when the correct forms were used, albeit incorrectly completed as far as signifying whether the appeal was against conviction, sentence, or conviction and sentence.
52. Secondly, Mr Amundsen chose to abandon the appeal in September 2015 and did not file a new application until March 2016, six months later.  He contended that he was forced to abandon because he had to obey a directive from Corrective Services to do so, but that cannot be accepted.  He was told, correctly, that he could not maintain the appeal if he wished his extant application for parole to proceed.
53. Once the parole application foundered, he sought reinstatement in October 2015.  However, having been told that the registry could not reinstate, and that he had to file a new application, he left that for another five months.
54. Thirdly, the explanation for those five additional months seems to lie in Mr Amundsen’s choice to prefer the prosecution of other matters, namely the civil litigation, the District Court trial, and his private prosecutions.  True it is that he complains about access to transcripts, his own computers being analysed, and limited access to the prison computers, but that does not account for all of the time elapsed, and none are credible explanations for why he could not file the notice of appeal or the application in respect of sentence much earlier than he did.  After all, neither document requires an outline of argument but merely the grounds of appeal, and both had already been done prior to the abandonment, and any deficiencies had been explained by the registry.  Further, Mr Amundsen’s letter of 7 January 2016 seeking reinstatement shows plainly that he had formulated grounds of appeal and grounds to attack the sentence, yet it was still some time before he finally filed the application.
55. I do not consider that the explanation shows good reason for the delay.
56. However, I now turn to the question of whether it is in the interests of justice to grant the extension or reinstate the appeal, and that requires a provisional assessment of the strength of the proposed appeal.  The Crown does not suggest prejudice by the delay.

Discussion – conviction

57. Mr Amundsen advanced a number of grounds contending that the verdict was suspect and a retrial was necessary.  I shall deal with those grounds, identifying the outline that contains them, in whatever iteration.

Evidence identifying Mr Amundsen

58. This ground concerned criticism of the reliability of identification evidence at the trial.^[24]  At the trial evidence was given by Mr Tweedie and C’s father, identifying Mr Amundsen on one of the occasions charged, in a particular street.  The descriptions were of a man of stocky build and bald.  Mr Amundsen contended, then and before this Court, that: he was thin, there were many bald men, and the view was obscured by trees.  All of those matters were raised at trial and were matters for the jury to decide.
59. Before this Court he sought to tender new evidence, namely photos to show the trees.  The proposed tender was refused because it transpired there were no photos yet, and in any event they could not show the state of the trees five years ago.
60. There is no merit in this ground.

Accessing the email account

61. This ground related to the last charged act, on 5 July 2012, that of accessing C’s Bigpond and Vodaphone accounts and changing her passwords.  Mr Amundsen contended that the evidence from a forensic examiner and two police officers established that he could not have accessed the accounts.^[25]  However, the contention misunderstood the case run at trial.  It was a circumstantial case based on the contention that it could be inferred from the whole of the evidence concerning what Mr Amundsen did, that Mr Amundsen accessed the accounts even though there was no direct evidence of it.^[26]  The evidence referred to by Mr Amundsen was that the forensic examiner and the investigating officers could not ascertain, from his computers, that the accounts had been accessed or the passwords changed.  The Crown case accepted that to be so.  The jury clearly drew the inference that it had to be Mr Amundsen who did it.
62. There is no merit in this ground.

Misdirections to the jury

63. Mr Amundsen contended that the jury was misdirected in two ways.  First, the jury were misdirected as to the effect of the decision in R v Davies,^[27] in this passage of the summing up:^[28]

“… there may be circumstances where you may not be aware of it at the time, but you become aware of it. That would be within the offence of unlawful stalking, and I am telling you that even if you’re not aware at the initial point in time of the conduct, and - but you later become aware, our law is you could be - you could, as a reasonable person, be affected by the - the conduct in the way the legislation provides.”

64. Secondly, when the learned sentencing judge misdirected the jury after the opening addresses when he said that of the factors in s 359D of the Criminal Code, the only one he could think that they may be concerned with was s 359D(e).  The relevant passage is:^[29]

“The other matter is, you did ask me for boundaries, and it seems to me from hearing the two openings that section 359D should be mentioned to you, which says: “Unlawful stalking does not include the following acts” And the only one that I could see that you need to think about that might arise as this case progresses is "Reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving”.”

65. As to the first ground concerning R v Davies,^[30] Mr Amundsen’s contention was that it was authority for the proposition that if the complainant in a stalking case is not aware of the act at the time it occurs, that cannot constitute stalking, even though the complainant later becomes aware of it.  Davies involved video cameras hidden in the roof, which were used to film the complainants.  They never knew of the existence of the cameras (or the filming) until police found them and told them what had occurred. 
66. The Crown’s contention was that the complainants feeling “angry and upset” when they found out was enough to satisfy that part of the provision which said that the detriment included “serious mental, psychological or emotional harm”.  McGill DCJ held that it was not enough.^[31]
67. As to the temporal aspect, McGill DCJ said:^[32]

“It may be that in some circumstances there might be some lapse of time between the particular act identified in paragraph C^[33] and the time when the stalked person became aware of it. This would occur, I suppose, particularly in relation to (iii)^[34] if the stalked person was not at the relevant place at the particular time. But it seems to me that even in relation to that, unless the staked person is made aware of it at some time, then it is difficult to see how either of the detriments could be suffered.”

68. The passage relied upon by Mr Amundsen was this:^[35]

“… it is not stalking unless the person concerned, the stalked person, is aware of what is going on and is reacting to that awareness so as to satisfy paragraph D. I think that is plainly the case in relation to the first limb of paragraph D, and in the light of the definition of “detriment” in section 359A, the scope of the section generally, the explanatory notes, and bearing in mind as well, that where there is some reasonable ambiguity about the section, it should be given no wider an interpretation than the words used fairly require, it seems to me that it is not stalking to engage in conduct the stalked person is entirely unaware of merely because once the stalked person finds out about it later the stalked person is unhappy about it.”

69. Mr Amundsen’s contention cannot be accepted, for two reasons.
70. First, Davies decided no more than where a stalked person is unaware of the acts until after they have ceased, and then reacts at a level that does not qualify as “detriment” as defined, that cannot satisfy the definition of stalking.  That is not the case here.  The Crown case was that C was aware of the acts.^[36]  Further, the detriment relied upon was that under s 359A(a) and (c), namely apprehension or fear of violence, and the prevention or hindrance from doing an act the person is lawfully entitled to do, eg take the children to school, not have to put locks on the door or change the locks, and attend where she would like to go and do.^[37]
71. Secondly, Davies was distinguished in McNicol v Queensland Police Service,^[38] a case where some of the acts of stalking were ones of which the complainant was unaware at the time, but became aware of during the stalking period, causing her detriment as defined under s 359A.  That is the case here, as the jury found.  Further, such a case was contemplated by Davies, as the passage referred to above in paragraph [67] shows.
72. There is no merit in this ground.
73. As to the second misdirection,^[39] Mr Amundsen contended that the learned sentencing judge omitted to tell the jury that they should have regard to s 359D(d), which provides that conduct is not stalking if it consists of “reasonable conduct engaged in by a person for the person’s lawful trade, business or occupation”.  The contention was that the occasion when, as he admitted, Mr Amundsen engaged a private investigator was one covered by s 359D(d) because the act of following and spying on C was one within the investigator’s lawful trade, business or occupation.
74. The contention cannot be accepted.  The investigator was not charged with stalking.  Mr Amundsen’s retainer of the investigator does not cloak Mr Amundsen with the protection afforded by s 359D(d).
75. There is no merit in this ground.

No fear or apprehension of violence

76. Mr Amundsen contended that the evidence did not support a finding that C had any apprehension or fear, reasonably arising in all the circumstances, of violence to her or another person.^[40]  He referred to passages of C’s evidence where she laughed off one particular threat, the generally benign nature of his communications with her, and some statements by her about his gentle nature.
77. None of the references raised by Mr Amundsen can avoid the fact that C gave evidence that she felt threatened and was in fear of him.  For example:

1. C said she was terrified or scared for her or her children and that she had made changes as to how she went about her life;^[41]

2. she was affected by discovering the private investigator was following her;^[42] when the private investigator was discovered C told the police that “well, I've got two children at home, I don’t know what this person is going to do”;^[43]
3. “I believe he’s a threat to me, yes, and to my children”;^[44]
4. in one email she said “You are now frightening me’ and “You are obsessed with me, and I don’t need that”;^[45]
5. she said she was scared as a result of one of the phone calls;^[46]
6. one witness described C as being “particularly distressed” when one of the acts was done;^[47] and
7. the learned sentencing judge referred to such evidence in summing up.^[48]

78. In the sentencing remarks the learned sentencing judge referred to the effect of the evidence of detriment:^[49]

“As far as the effect on the complainant, there was an effect on her in that she felt harassed. But she also did give evidence that, on one occasion, she was angry, annoyed, terrified and harassed. And that this was still going on. It is clear that the jury accepted, by their verdict, that what you did would cause [C] apprehension or fear, reasonably arising in all the circumstances, of violence to her or her family. Or you caused detriment, reasonably arising in all the circumstances, to her or her family. … The detriment being apprehension or fear of violence…. There were other effects upon in that she had to change the locks to the house.”

79. The addresses of each side spent time on whether C could be accepted as a credible and reliable witness.  Mr Amundsen attacked C as being an unmitigated liar.  In the summing up the learned trial judge told the jury that C’s evidence was essential to the prosecution case, and that it stood or fell on their assessment of C’s reliability and truthfulness.^[50]  The summing up addressed the issue as to whether C’s evidence could sustain a finding that the relevant detriment had been caused.  It was open to the jury to make that finding.
80. There is no merit in this ground.

Objection to juror wrongly overruled

81. During the empanelling of the jury Mr Amundsen objected to one juror, but that objection was overruled.  The whole passage of evidence is:^[51]

“DEFENDANT: Objection, your Honour. The [Scotts] are renowned for their long, historical dislike of the Amundsen family. I cannot allow this jury, your Honour I’m asking for this juror to be discharged The historical knowledge of [the Scotts] and Amundsens go back several decades, your Honour, that’s public knowledge.

HIS HONOUR. Yes Mr Amundsen, I refuse your application to disqualify this juror This juror can continue forward to be sworn in or take an affirmation.”

82. The juror’s surname was Scott, so it seems Mr Amundsen was suggesting some historical enmity between the Scotts and the Amundsens, caused by Roald Amundsen having beaten Robert Scott to the South Pole in 1912.  However, there was no evidence that this Scott juror was related in any way to the explorer, Robert Scott, nor that there was, in fact, any known and long-held enmity over what occurred in 1912.  Therefore rejection of the objection was inevitable.
83. Before this Court Mr Amundsen sought to advance some additional and new reasons,^[52] namely: (i) that the Scott juror was a former work colleague and had conducted a vendetta against him based on Roald Amundsen’s success in the race to the South Pole; (ii) that juror had boasted after the trial, on television programmes, that she had compromised the jury; and (iii) that juror had made a comment during the trial about having “got” Mr Amundsen.
84. None of those matters were raised before the trial judge.  Mr Amundsen’s contention, that notwithstanding that they were not raised, the learned trial judge should have instigated his own enquiries, can be dismissed.  There is no independent evidence to support the new matters raised.  Mr Amundsen’s assertion of them cannot be relied upon.
85. There is no merit in this ground.

Refusal to permit Mr Amundsen to question the jury panel

86. At the trial Mr Amundsen sought to question each potential juror as to their attitude to “conservative Christian morality”.  The application said to be under s 47 of the Jury Act 1995 (Qld), and was put in these terms:^[53]

“Now, your Honour, my main concern is … that because this is a clash of values between the complainant and the defendant - as I explained to you earlier, the complainant in this matter is quite a radical feminist where the defendant is a man of very strongly-held conservative Christian values. I need to ensure that I do not have any jurors on this jury who has a anti-Christian or anti-Christian morality outlook, nor someone who has a feminist ideology or value system, because if they were to have those values, I would have a biased jury against me. So I’m asking for the opportunity - I prepared four questions which I’m prepared to hand up to his Honour. So I’m making an application under section 47 this morning now that I am allowed to provide questions to these potential jurors as they come through this morning to determine whether they have a concern, disagreement or dislike of conservative Christian morality, also would they have a dislike or disagreement with a person who opposes feminism.

And I’m also concerned, your Honour, is that the defendant in this matter is a previous defendant in a high profile terrorism case in Queensland seven years ago. I would also need to ascertain whether they had any knowledge of that matter or whether they had a dislike of any person who may previously have been charged with a terrorism or sexual assault charge, both of which were discharged, your Honour.”

87. The application was refused, the learned trial judge: (i) noting the “stage that you’ve raised it” (that is, on the first day of trial when the jury were to be empanelled, rather than at least three days prior to the start, as required by s 47(2) of the Jury Act); and (ii) saying that he saw “no special reasons whatsoever or even good reasons” to allow cross-examination of potential jurors on the basis raised, and that what Mr Amundsen was seeking to do was “simply to fish as to matters that are not relevant to these proceedings.”^[54]
88. Before this Court Mr Amundsen contended that the questions should have been put to the jury.^[55]  I do not accept that contention.
89. First, the application was made after the three day time limit set by s 47(2).  The learned trial judge was plainly not satisfied that the time should be abridged.  Section 47(2) permits that when the judge finds that there are “special reasons”.  There were none, and the learned trial judge’s decision has not been shown to be in error.
90. Secondly, Mr Amundsen’s concern was whether jurors exhibited “a concern, disagreement or dislike of conservative Christian morality, also would they have a dislike or disagreement with a person who opposes feminism”.  None of those matters were relevant to the offence or the defence of it.  Stalking would still be stalking even if it was motivated by what Mr Amundsen described as “very strongly-held conservative Christian values”.
91. Thirdly, the learned trial judge reminded the jurors that they had to be fair-minded and impartial as between the prosecution and the defendant, and asked if any of them felt they could not do that.  One juror was excused and replaced.^[56]
92. Fourthly, the learned trial judge directed the jury to put all feelings of sympathy or prejudice out of their minds, and to decide on the evidence alone.^[57]  There is no reason to think that the jury did not obey their duty.
93. There is no merit in this ground.

Other grounds re conviction

94. There were a number of subsidiary grounds raised in the outlines.  They included:

1. first, the conduct comprising his mother’s checking phone numbers^[58] was deficient, in that there was no proof that the receivers of those calls were able to identify that it was his mother;^[59]

2. secondly, the evidence concerning conduct based on a card handwritten by Mr Amundsen was deficient because all correspondence between Mr Amundsen and C was by email, so she could not have identified that it was his;^[60]
3. thirdly, the charges were the “malicious” product of a “clique” of police officers, conducting an “ideologically driven personal vendetta”; those officers brought several false charges, and opposed bail, which was an “attack and [they] oppose my faith” because of “deep disdain for my high morals and Christian values”;^[61]
4. fourthly, Mr Amundsen’s previous charge history was before the jury; and
5. fifthly, the conduct could not have amounted to stalking as Mr Amundsen was never told by C that the relationship was over; therefore, it was said, there was a legitimate basis to seek contact with C.^[62]

95. The first two are unpersuasive.  Part of the evidence consisted of two letters written by Mr Amundsen.  Whilst he challenged that the writing was his, the jury could have accepted that it was.  The evidence in this respect was dealt with in the summing up.^[63]  As for the calls, part of the evidence referred to telephone calls between Mr Amundsen and his mother whilst he was in custody, in which he put his mother up to it.^[64]  The jury considered all the evidence in this circumstantial case, and matters such as these are for the jury to assess.
96. The third calls for little comment.  It does not seem to have been an issue agitated at trial.  In any event, there was simply no evidence to substantiate it.
97. The fourth needs little comment.  It seems it was Mr Amundsen who put the history into evidence, but there was direction given that it had to be disregarded.^[65]  There is no reason to think the jury did not do so.
98. The fifth also suffers because it depends on extrapolating from C’s evidence to a police officer that she had not directly told Mr Amundsen that it was over.  However C gave evidence that she did.  There was other evidence (such as from C’s father) that showed he knew.  The jury could well have accepted that evidence.  Mr Amundsen addressed the jury on this aspect and it was dealt with in the summing up.^[66]

Conclusion as to prospects on the proposed appeal against conviction

99. For the reasons given above I consider there to be no merit in the proposed appeal against conviction.

Discussion – sentence

100. Mr Amundsen raised a number of matters in respect of his contention that the sentence was manifestly excessive.^[67]  These included:

1. it was an error to give weight to the fact that some of the acts occurred in breach of a Commonwealth parole order, as that order was an administrative act, not the order of a court;

2. the comparable cases did not support the head sentence; his conduct did not involve assault, physically threatening or violent behaviour, home invasion, or derogatory comments;
3. not enough weight was given to Mr Amundsen’s difficult upbringing, including years of bastardisation and loss of family; further, the 22 and a-half months spent in an isolation cell (during the time he was charged with terrorism offences) had left him traumatised and vulnerable;
4. not enough weight was given to the difficulties presented by his aging mother’s illness, periods of hospitalisation and need for care, as well as the financial strain exacerbated by his continuing detention;
5. the length of time he had spent in prison (on Mr Amundsen’s calculations, 38 and a-half months) meant that the sentence should be suspended forthwith;
6. undue weight was given to the previous explosives conviction, in that the police in that case accepted that there was no sinister intent, and the learned trial judge did not examine the transcripts from that case; Mr Amundsen contended that to give that conviction weight was to doubly punish him;
7. the learned sentencing judge had exhibited “open disdain and disrespect for traditional Christian values”, and engaged in “open ideological dislike and rage” against him;^[68]
8. insufficient weight was given to the fact that two of the acts involved inadvertent contact with C, in the sense that Mr Amundsen had not altered the settings on a computer contact list and an invitation message was sent automatically;
9. Mr Amundsen had no chance to be given parole as some of the Parole Board members held feminist and secular values, or anti-conservative anti-Christian views, strongly opposed to his own values; and
10. between his release on bail and the present time (a period of about four years) there had been no contact with C or her family.

101. As set out above in paragraph [39], the learned sentencing judge took into account most of the matters about which complaint is made.  For the most part no specific error is identified.  What is contended is that too little or too much weight was given to certain individual factors.  Such a contention can usually only succeed if the sentence is manifestly excessive when regard is had to the comparable cases.
102. Before dealing with the comparable cases I will refer to some of the matters identified above.

Breach of Commonwealth order

103. There is nothing in this assertion.  The learned sentencing judge did not sentence on the basis that there had been a breach of a Commonwealth parole order of any kind.^[69]  His Honour did note that some of the conduct occurred in breach of a bail condition.^[70]  That was undoubtedly correct.

Mr Amundsen’s past and difficulties with his mother

104. The learned sentencing judge had been told, at some length, and repeatedly, about these issues.  He noted them in his sentencing remarks,^[71] and Mr Amundsen, interjecting once again in that process, reiterated some of those factors.^[72]  It can hardly be said that insufficient weight was given to them.

The previous explosives conviction

105. Mr Amundsen submitted that the learned sentencing judge placed weight on the fact that the underlying context of the explosives possession charge was that he was, in fact, some sort of terrorist.  His Honour was at pains to disabuse Mr Amundsen of any such notion, during the sentencing hearing.^[73]  In the sentencing remarks themselves, the learned sentencing judge referred merely to the fact that the charges were for using a carriage service to threaten to kill, and possession of a large quantity of explosives, detonators and nails, and what the evidence showed was the intent.^[74]  None of that suggests that the learned sentencing judge was treating it other than it was.  Further, there is no substance in the submission that it amounted to double punishment.  An offender’s prior criminal history is a relevant matter to consider on sentencing.

Insufficient weight to inadvertent acts

106. There is no substance to this submission.  It depended on acceptance of Mr Amundsen’s assertion (though not in evidence as he did not give evidence) that they were the result of merely forgetting to adjust settings on a computer.  Plainly the learned sentencing judge was not prepared to act on that basis.  Given the absence of a factual base there was no reason his Honour had to do so.

Chances of parole

107. There is no substance in this submission.  What the parole board may or may not do was a matter of speculation at the time of sentence.

Comparable cases

108. The learned sentencing judge was referred to a number of comparable cases, including R v Rosenlund,^[75] R v Hallett,^[76] R v Dunn,^[77] R v Layfield^[78] and R v Gill, ex parte Attorney-General (Qld).^[79]
109. Rosenlund involved a 20 year old man who pleaded guilty to stalking over a two month period, and was sentenced to two and a-half years’ imprisonment.  The maximum sentence at the time was three years’ imprisonment.  The complainant was a complete stranger.  On a number of occasions he stared at the complainant and called her a “fucking bitch” when a security guard was called.  On one occasion he departed, pointing a finger at her as if it were a pistol.
110. He had a lengthy criminal record, including convictions for robbery, wilful damage, break enter and steal, drug offences and breach of bail.  After the stalking offence he had sustained other convictions, including for aggravated assault on a young girl, and assaults on his mother and a ticket collector.  He had a violent disposition.  He had been diagnosed with an anti-social personality disorder with narcissistic traits, and was in need of psychiatric treatment.
111. The Court noted that attempts to rehabilitate or reform him had signally failed, and declined to interfere, saying:^[80]

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

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

112. Hallett involved a 27 year old man sentenced, after a trial, to two years’ imprisonment for stalking over a relatively short period.  The offender had no previous convictions.  The maximum sentence was five years if there was a circumstance of aggravation, and three years otherwise.  There was a threat to use violence, and therefore a circumstance of aggravation.
113. The offender had been in a relationship with the complainant.  He made many calls to the complainant and her friends, and damaged her vehicle by cutting the brake hose.  He “showed no remorse, and had embarked on a calculated and persistent campaign of intimidation against the complainant.  Some of the conduct complained of, particularly that involving interference with the car, was serious and could well have had disastrous consequences for the complainant and other road users.”^[81]
114. The Court declined to intervene, acknowledging that the nature of the offence could mean a variety of sentences:^[82]

“This court was referred to a number of cases involving a sentence for the offence of stalking. It is obvious from a mere consideration of what constitutes the offence that instances of stalking can range from a minor, or most trivial, offence to one requiring severe punishment. That explains why one finds sentences for the offence ranging from non-custodial to 4 years’ imprisonment (where the conduct was described as dangerous obsessional jealousy).”

115. Dunn involved a five year sentence imposed on a 22 year old man who pleaded guilty to stalking, with a circumstance of aggravation.  The maximum sentence for that was five years, and he was sentenced to five years.  In addition there were breaches of probation and a number of summary charges, including breach of bail and using the postal services in an offensive manner.
116. The offender had a “fairly extensive and worrying criminal history” including entering premises without lawful excuse, break enter and steal, wilful damage, attempted stealing and unlawful destruction of property.  He had been sentenced to prison on several occasions.
117. The offender stalked a man who was a stranger.  He sent an obscene letter demanding $50,000, and threatened the man’s children.  Abusive and obscene calls followed.  There was a bomb threat, then a letter to authorities making a false complaint of sexual abuse by the son.  He also sent offensive material to the man’s clients, referring to him as a child molester.  Considerable damage was caused in the car park where the man worked, as a form of payback for the unsuccessful extortion attempt.  Then, while on remand, the offender further harassed the man and his wife, by making two phone calls from the correctional centre.
118. The offender showed no remorse.  He had Asperger’s syndrome, and an anti-social personality disorder.  He was described thus:^[83]

“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.”

119. The sentencing court was not told that another sentence (four months) had already been passed on the offences constituted by the phone calls from the prison.  Those calls were particulars of the stalking so that raised the issue of double punishment, and that of the totality of the sentences, given that the total exceeded the maximum for the stalking charge.  The Court said:^[84]

“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.”

120. In the result the sentence was reduced from five years to four years and seven months.
121. Layfield involved a conviction after a trial, for stalking with a circumstance of aggravation, namely a threat of violence.  The offender was sentenced to two years’ imprisonment.  He was the former fiancée of the complainant.  The stalking consisted of phone calls, some of which contained threats of violence (to shoot or strangle her), following her and loitering outside her workplace.
122. The challenge was not directed at the head sentence, but at the failure to suspend the sentence after 12 months.  The Court refused to intervene, saying:^[85]

“No doubt it is true that the learned sentencing judge could have quite properly imposed the sentence now contended for.  On the other hand his failure to do so does not, in my opinion, demonstrate any error.  The applicant was convicted after a trial and, notwithstanding the apparently strong case against him, sought to demonstrate that it was false and, through his counsel, accused the complainant of deliberately falsifying a case against him.

This lack of remorse for his irrational and harmful conduct gives some cause for concern.  If he is to be released from custody before the expiration of the sentence imposed, it may be better that he is so released subject to the supervision of a parole officer.  Moreover both of these questions, when he is to be released and on what terms, may be better decided after he has been observed and assessed.”

123. Gill was an Attorney’s appeal which involved a plea of guilty by a 35 year old man, to stalking (with a circumstance of aggravation) over a one month period.  He was also charged with attempted rape.  He was sentenced to two years’ imprisonment for the stalking and three years for the attempted rape.  The offender was a former partner of the complainant and she had fallen pregnant to him.
124. He made almost daily contact (often numerous times a day) by telephone calls and texts, repeatedly turned up at her house and workplace, got into her car and refused to leave, entered her house uninvited and tried to break into her house.  He threatened to commit suicide five times.  He threatened to intimidate anyone she became involved with, by shooting into their house.  One night she yielded to his request to be let into her house, and he refused to leave.  When she fell asleep he attempted to rape her.  She eventually terminated the pregnancy, and whilst in hospital he continued to attempt to contact her.  Police intervened and he was taken into custody.
125. The offender had a poor criminal history, including stalking, breaches of a domestic violence order, wilful damage, burglary and indecent assault.  While on a suspended sentence he was convicted of entering premises with intent, assault and breach of a domestic violence order.  Over an eight year period he committed sexual and violent offences against three former partners.
126. The appeal was concerned with the sentence for the attempted rape, and that it did not reflect the totality of that offence and the stalking.  In the course of the reasons the Court referred to R v Hughes.^[86]  There a sentence of three years imprisonment, suspended after 278 days, was imposed for a stalking over a three week period, where the offender loitered around the complainant’s house.  On one occasion he pushed his way into her house and assaulted her in a way that seemed “preparatory to a rape”.  The Court said:^[87]

“The last of the cases relied on by the Crown was R v Hughes [2000] QCA 16. There a sentence of three years imprisonment suspended after 278 days (the period already spent on remand) was upheld. The appellant had pleaded guilty to offences of some similarity to those here. He had stalked the complainant over the period of about a month, constantly loitering outside her house, looking through windows, hiding around her yard and subsequently denying that he had been there. Towards the end of the period involved he forced his way into the house and assaulted the complainant, partly removing her clothing in what was described as a manner “which seemed to be preparatory to a rape”. The complainant called out, attracting the attention of a neighbour who came to her aid; upon that the appellant decamped. There was, therefore, no question in that case of any desistance. The appellant had an extensive criminal history, but it did not include sexual offences or offences of violence. He did not in fact appear to argue his application for leave to appeal, and the court dealt with the sentence only because an associated order for probation was made without jurisdiction; but Pincus JA, with whom the other members of the court by inference agreed, said he did not think that there was any argument which could be advanced for reduction of the head sentence below three years.”

127. The cases referred to above reveal what other authority says, that the sentences for the offence of stalking can vary considerably depending on the objective seriousness of the conduct and the effect on the victim.^[88]  However, they do provide some assistance here.  Mr Amundsen was found guilty of stalking with a circumstance of aggravation, namely that some of the acts contravened the bail order imposed by Magistrates Court at Richlands on 8 June 2012.
128. Any review of such cases must bear in mind that they reveal “sentences for the offence ranging from non-custodial to 4 years’ imprisonment (where the conduct was described as dangerous obsessional jealousy)”.^[89]  Further, it needs to be borne in mind that Rosenlund, Hallett and Dunn were decided when the maximum penalties for stalking were (i) three years without a circumstance of aggravation, and (ii) five years with a circumstance of aggravation.  Those penalties were increased from 30 April 1999, to five years and seven years, respectively.
129. Layfield is of limited utility because the head sentence of two years was not under challenge.  That said, the reasons for refusing a suspended sentence were ones which would apply to Mr Amundsen: see paragraph [122] above.
130. Gill is of limited utility because it was an Attorney’s appeal and the focus was on the sentence for attempted rape rather than on the stalking.
131. There are similarities and differences between the other cases:

1. Rosenlund, Hallett and Dunn: all involved younger offenders;

2. Rosenlund and Dunn were pleas of guilty, whereas Hallett was a sentence after a trial;
3. Rosenlund and Dunn: the offender had substantial criminal records, whereas in Hallett there was no previous record;
4. Rosenlund and Dunn: involved the stalking of a stranger, whereas Hallett involved a former partner;
5. Rosenlund, Hallett and Dunn: the offender showed no remorse and had poor prospects of rehabilitation;
6. Rosenlund and Dunn: there were offences committed after the stalking charge;
7. Rosenlund and Dunn: the sentence was near the maximum; in Hallett the sentence was just under half the maximum;
8. Rosenlund and Dunn: the offender had an anti-social personality disorder or some other condition; and
9. in Dunn the conduct was described as “devastating and … of the most scandalous and destructive kind”; in Hallett the conduct was “calculated and persistent” and “serious and could well have had disastrous consequences”.

132. Those matters show the difficulty confronting a submission that the sentence in Mr Amundsen’s case was manifestly excessive.  Each case is one where the sentence varies depending on the objective seriousness of the offending conduct and the matters personal to the offender.  Mr Amundsen was an older offender than in any of those cases, showed no remorse or insight, had a substantial criminal history, went to trial denigrating the victim, committed some of the acts while on bail, and indulged in conduct in a calculated and persistent way.
133. Further, some support for the sentence in Mr Amundsen’s case can be drawn from Hughes.  There a man pleaded guilty to stalking, entering a dwelling with intent to commit an indictable offence, and unlawful and indecent assault.  He was sentenced to three years’ imprisonment on the stalking and assault, and probation on the entering offence.  He had stalked the complainant (a female friend with whom he enjoyed a casual sexual relationship, though she was not his partner) over the period of about a month, loitering outside her house, looking through windows, using a key in the lock, calling out to her, hiding around her yard, but subsequently denying that he had been there.
134. Towards the end of the period he forced his way into the house after being denied entry, and assaulted the complainant, partly removing her clothing in a manner “which seemed to be preparatory to a rape”.  The complainant called out, and a neighbour came to her aid.  The offender then left.  The offender did not cease his attack voluntarily.  He had an extensive criminal history, but not for sexual offences or offences of violence.
135. Pincus JA said of the sentence:^[90]

“I have noticed that the head sentence of 3 years which was imposed was in accordance with the submissions of both counsel below; it does not appear to me possible to argue that it should be reduced.”

136. Deterrence, particularly personal deterrence, is the major factor in stalking cases, as recognised by Williams JA in R v Walton:^[91]

“I would add that, in my view, deterrence must always be the major factor in sentencing for the offence of stalking. The penalty must be designed to ensure that the conduct in question does not continue. In a case such as this it is not to the point to say that no specific threat to the complainant was made. Conduct such as that of the applicant is designed to put as much stress as possible on the complainant and constitutes at least a direct threat to the complainant’s mental wellbeing. Ordinary people subjected to such stress may feel compelled to react inappropriately or may well develop psychiatric conditions. In either case there could be far-reaching complications; in an extreme case the target of the stalking could well react by committing a criminal offence.

For all of those reasons a deterrent sentence is called for in cases of this type…”

137. The same point was made by Chesterman JA in R v Baker:^[92]

“The cases stress that deterrence is important when sentencing for stalking. In this case it is more than usually important because of the applicant’s paranoid psychology. Unlike other offenders he does not regret his conduct nor does he regard it as wrong. He maintains the justice of his position, and conduct, and continues to deride the complainant’s behaviour which he sees as meriting exposure and punishment. In those circumstances the penalty imposed had to act as an effective personal deterrent against the applicant. It had to be sufficiently severe to persuade him to abandon any ideas he might have of continuing to subject the complainant to further insult on his release from prison.”

138. In the same case White JA said:^[93]

“The primary judge when sentencing said that “general deterrence is a matter of particular importance…”. In doing so he may have overstated the value of a sentence of the kind he imposed in deterring others who were minded to engage in similar behaviour. This is because many examples of stalking involve elements of obsessiveness by the offender. Brennan J observed in Channon v The Queen that psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. When something of that kind is involved in the offending conduct general deterrence is less likely to loom large. As Chesterman JA has said, it is the personal deterrence to the applicant which is of importance.”

139. Those statements resonate in Mr Amundsen’s case.  He resolutely denied any wrongdoing, had no regret, showed no insight into the harm he caused, maintained that C suffered no harm at all because his conduct had no impact on her, and maintained a defence which denigrated C as an unmitigated and cunning liar who could not be trusted.  That stance was borne out of a self-righteous and self-justifying attitude based on what he saw as his own high morals when, in fact, his conduct was designed to punish C for having allegedly misrepresented that she had the same conservative values as he proclaimed.  As he said, interjecting during the sentence:

“She’s let me down. …I can’t trust her ... she is left wing, and I am conservative. She’s not Christian. I am a Christian. … I live by God’s laws.”^[94] And

“She told me at the beginning of this relationship she was Christian. She painted herself as conservative, like myself. If she hadn’t, I wouldn’t have had anything to do with the woman. She portrayed herself as considerate, kind and Christian. Her exact words to me were, your Honour, for the record, you sleep me with me. It’s a contract for life, because I’m a Christian too.”^[95]

140. Indeed, in that and other ways Mr Amundsen saw himself as the victim, not the perpetrator.  That attitude permeated his view of his past convictions in 1993 and 2008.  Even in the course of the sentence remarks he interjected to downplay the convictions and advance why he was wrongly convicted and wrongly punished.
141. Further, at the sentencing Mr Amundsen displayed a contempt for the due process of justice by attempting to use a fabricated medical report.  That, plainly, was not something new to him, as he had done it before in 2008, and had been convicted of perjury and forgery in 1993.
142. These matters meant that personal and general deterrence were very significant factors in the sentence to be imposed.
143. Further, in light of his history and his attitude to the due process of law, it is of significance that four acts occurred while Mr Amundsen was on bail for this very offence.
144. In my view, while the sentence imposed was substantial for a case where no physical threats or violence were used, nonetheless it cannot be demonstrated that it was manifestly excessive.  There is therefore no merit in this ground of the proposed appeal.

Further “outline” without leave

145. After preparing the above reasons, Mr Amundsen filed another “outline” in the registry.  That document was 36 pages long.  No leave to file a further outline was sought or granted.  Its length and content would be contrary to the practice direction governing the preparation of outlines in this Court.  In the circumstances the Court will not receive it.

Conclusion

146. For the reasons given above the explanation of the delay in filing the appeal, and application for leave to appeal, is unsatisfactory, and there is no merit in the points raised by Mr Amundsen.  I do not consider that the interests of justice require the grant of an extension of time to appeal.
147. I would propose the following orders:
     1. The application for an extension of time is refused.
     2. The application to reinstate the abandoned appeal is refused.