R v Coutts[2016] QCA 206

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I have had the advantage of reading in draft the reasons for judgment of Philippides JA.  For the reasons given by her Honour I respectfully agree that the applicant has not established any of the contentions advanced on her behalf in support of the grounds of appeal.  I propose to add only some brief remarks about the grounds of appeal.

[2] Ground 1 contends that the sentence is manifestly excessive.  Ground 2 contends that the sentencing judge, “erred in failing to take into account of [sic], or placing insufficient weight on, the applicant’s –

(a) Plea of guilty and demonstrated remorse; and/or

(b) Mental state at the time of the offending; and/or

(c) Considerations of rehabilitation”

[3] Section 13(1) of the Penalties and Sentences Act 1992 (Qld) specifically obliged the sentencing judge to take the applicant’s plea of guilty into account.  Also, to the extent that the plea and the other matters in (a) – (c) of ground 2 were established by the material before the sentencing judge (none of which was contentious), s 9(2) of the Penalties and Sentences Act 1992 (Qld) obliged the sentencing judge to have regard to each of those matters as a “mitigating factor concerning the offender” (s 9(2)(f)) or at least as a “relevant circumstance” (s 9(2)(q)).  It follows that a failure to take into account one or more of those matters would be an error in the exercise of the sentencing discretion and, upon leave to appeal being granted, the Court would become obliged to set aside the sentence and re-sentence afresh “unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed”: Kentwell v The Queen.[1]  As Philippides JA has explained, however, the sentencing judge did take those matters into account to the extent they were established by the material.  That aspect of ground 2 fails for that reason.

[4] Otherwise ground 2 relies upon a contention that the sentencing judge placed “insufficient weight” on each of the three matters mentioned in ground 2.  That is not an allegation that the sentencing judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts, or failed to take into account a material consideration: cf House v The King (1936) 55 CLR 499 at 505.  The weight to be given to relevant considerations is a matter for the sentencing judge in the exercise of the sentencing discretion.  This Court has decided that, in a sentence appeal of this kind, a ground of appeal which contends that a sentencing judge placed insufficient weight upon a factor which the sentencing judge took into account does not justify the Court in setting aside the sentence: R v Major; ex parte A-G (Qld) [2011] QCA 210, R v Tout [2012] QCA 296 at [7] and the decisions there cited; see also R v Buckman [2016] QCA 176 at [8].  This aspect of ground 2 was the focus of the applicant’s arguments, but in my respectful opinion it is not a viable ground of appeal.

[5] The question raised by the contention in ground 1 that the sentence is manifestly excessive is whether, having regard to all of the relevant sentencing factors, and taking into account whether or not, and the degree to which, the impugned sentence differs from sentences that had been imposed in comparable cases, the Court is driven to conclude that there must have been some misapplication of principle (see The Queen v Pham (2015) 90 ALJR 13 at [28]).  Such a misapplication of principle will be inferred by an “unreasonable or plainly unjust” sentence: see Hili v The Queen (2010) 242 CLR 520 at [58].  Taking into account the egregious character of the offending and the other relevant circumstances, and bearing in mind the comparative sentencing decisions in R v Macdonald [2008] QCA 384 and R v Baker [2011] QCA 33 to which Philippides JA has referred, the sentence imposed upon the applicant, including the order for release on parole after six months, could not be regarded as manifestly excessive.

[6] I agree that the application for leave to appeal against sentence should be refused.

[7] PHILIPPIDES JA:  The applicant was convicted on her plea of guilty to one count of unlawful stalking with violence on 21 April 2016.  The applicant was sentenced to 18 months imprisonment and an order was made that she be released on parole on 21 October 2016, so that six months was required to be served in custody.  A restraining order was also made pursuant to s 359F of the Criminal Code (Qld).  The applicant seeks leave to appeal against sentence.

Grounds of appeal

[8] The grounds of appeal as amended contended that the sentence was manifestly excessive (ground 1) and that the exercise of the  sentencing discretion miscarried in that the sentencing judge erred in failing to take into proper account[2] the following specific matters (ground 2):

(a) the plea of guilty and demonstrated remorse;

(b) the applicant’s mental state at the time of the offending; and

(c) considerations of rehabilitation.

[9] The applicant contended that there was error of the kind articulated in House v The King, in that the sentencing judge did not take into proper account the above mentioned considerations with the result that the sentence imposed was manifestly excessive in that it required the applicant to serve six months in custody prior to release on parole.  The ground alleging that the sentence was manifestly excessive was thus contingent on demonstrating that there was error in one or more of the matters that formed ground 2.

Facts

[10] The sentence proceeded on an agreed schedule of facts.  The applicant was 49 years old at the time of the offending and 50 at the time of sentence.

[11] The offending occurred between 12 July 2014 and 20 February 2015.  The complainant was aged 71-72 years at the time of the offence and was the neighbour of the applicant.  The complainant’s husband suffered from Alzheimer’s disease and was moved into a nursing home during the period of the offending.  The complainant continued to live, alone, in her home of 35 years.

[12] Prior to the June-July holidays in 2014, the complainant and the applicant appear to have got along quite well.  During those holidays, the complainant heard banging doors coming from the applicant’s house and saw the applicant’s son crying.  Later that day, the complainant encountered the applicant’s daughter out the front of her house and they discussed the applicant’s son.  Thereafter, the applicant telephoned the complainant and said to “mind your own business it’s my son I’m going to get rid of you as a neighbour”.

[13] Following that, the applicant would yell abuse at the complainant whenever she saw her outside her house.  In the six month period between 20 August 2014 and 19 February 2015, there were 18 occasions particularised, including threats to the complainant such as:

• “dead prey” (15 January 2015);
• “fucking cunt, fucking cunt, die you bitch” (2 February 2015);
• “I’d love you to have a go cause it would give me an excuse just to [indistinct] your fucking head in” (7 February 2015);
• “I’ll follow you home and I’ll find out where you live and I’ll start fucking attacking you guys too” (7 February 2015, said to the complainant’s daughter);
• “I’m going to kill you fucken (sic) die” (7 February 2015); and
• “I haven’t torched her house yet but that will be next [indistinct] Bikie friends like this, put your name on the list you fuckwit” (19 February 2015).

[14] From 7 February 2015, the complainant recorded the applicant’s abuse and threats.

[15] On 18 February 2015, the applicant sent the following text to her sister-in-law:

“U wanna fuck with me don’t ya so did old judy (sic) next door now shes to  (sic) scared to come home cause I got to her they havent (sic) been here for days.”

[16] When the applicant was arrested by police on 8 March 2015, she denied having spoken to the complainant in the previous six week period.

[17] The complainant’s Victim Impact Statement, tendered at sentence, revealed that the applicant’s conduct caused the complainant significant distress and she had become afraid to leave her house.  The complainant had lost the joy she previously found in gardening and found it difficult to be positive about life.

The submissions at sentence

[18] At sentence, the Crown submitted that the offending was prolonged and calculated and directed towards a particularly vulnerable complainant over a period of six months.  Reference was made to R v Macdonald [3] as a relevant comparative.  The complainant in that case also had the care of a person in frail health.  A sentence of two years imprisonment with an order for release on parole after eight months, for stalking which occurred over three and a half months and included a threat to use violence, was not disturbed on appeal.  The offending involved a large number of text messages and telephone contact, with the additional aggravating feature that the offender had, on three occasions, contravened an order.  The offender was 35 years old with limited criminal history, who had the benefit of an early plea of guilty and had taken some steps towards rehabilitation.[4]

[19] Counsel for the applicant placed emphasis on the applicant’s personal circumstances, which included the recent breakdown of her second marriage and separation from her husband which occurred in February 2015 (towards the end of the period of offending).  Reference was made to the applicant’s position as carer for a young son.  The sentencing judge was informed of the applicant’s drinking problem and her perception of the complainant as interfering with her parenting.  The combination of those matters, in the context of the deterioration of the applicant’s marriage (which had involved violence), was said to have triggered the offending conduct.  It was noted that the applicant continued to live next door to the complainant for 11 months after she was arrested in March 2015 without any further offending.  A report from a psychologist, Leigh Buckley, was tendered.  It confirmed that the substance abuse had “generated the unregulated and aggressive behaviour” earlier in the year.  The Court was told that the applicant was taking some steps to address her drinking problem.

[20] Defence counsel submitted that the appropriate penalty would include “a short period of imprisonment [with] either a lengthy operational period wholly suspended, perhaps immediate parole which would suit her getting some intensive support, or alternatively [an] intensive correction order would be appropriate in the circumstances”.  Counsel sought to distinguish Macdonald as being a more serious case.  In that regard, there was more contact in that case, with 200 text messages and an unknown number of calls, as well as the applicant in that case following the complainant, sending letters and sitting outside her house.  Defence counsel also referred to the threats to rape and kill.  Counsel relied on R v Walton[5] to support the submission that a wholly suspended sentence was appropriate.  Although there was no circumstance of aggravation in Walton, it was submitted that the conduct was comparable to the present case in that there were three separate charges in Walton, the conduct involved a large volume of telephone calls, “determinate and persistent conduct” and also the involvement of the complainant’s 15 year old son.

Sentencing remarks

[21] The sentencing judge referred to the applicant’s guilty plea.  The applicant’s conduct towards the complainant was described as “callous and wicked”, having embarked on a “deliberate course of revenge”.  The complainant was “a vulnerable, blameless victim, who was struggling with grief and the stress of a deep loss”.  The applicant had “intentionally” destroyed the complainant’s sense of security, so that the complainant “lived in constant dread”.  The applicant bragged about her conduct to her sister-in-law.  Her Honour referred to the conduct being so irrational and hateful that the complainant could not be sure what the applicant was capable of doing to her.  The sentencing judge remarked that, although there was no suggestion that the applicant meant to follow through on the threats made, she wanted to frighten the complainant and had succeeded in doing so.

[22] The sentencing judge took into account that the applicant was not to be sentenced for any physical act and that there was no further conduct in the 11 months following the applicant’s arrest until she moved from the address.  Her Honour noted that there was only one prior conviction (two and a half years prior to the present offending) for a minor breach of a domestic violence order, for which a fine was imposed.

[23] Her Honour stated that the offending could not be characterised as impulsive, a drunken oversight or reckless.  Rather, it was calculated and sustained.  Nor was there any suggestion that the applicant was acting under an impairment of the mind other than voluntary intoxication.  The sentencing judge had regard to the psychologist’s report and its reference to the applicant’s physical and psychosocial problems.  In particular, the applicant had damaged close relationships with others in her family.  She had reported being the victim of domestic violence and that the offending or at least the worst of it was committed when she was extremely drunk.  While the applicant had undertaken counselling after her arrest, her drinking problem had yet to be properly addressed.

[24] While the applicant was middle aged with a young son, there was no suggestion that the applicant’s young son could not be cared for by a family member.  The sentencing judge remarked that given the applicant’s drinking problem it was “likely that he has had to rely significantly upon the care of others”.

[25] Her Honour remarked that general deterrence was important, acknowledging also the requirement for a just punishment that was proportionate to the offending and which sent a message of community denunciation.

Submissions before this Court

[26] The applicant did not cavil with the head sentence of 18 months imprisonment.  It was accepted that the comparatives of R v Macdonald,[6] relied upon by the Crown at sentence, and R v Baker,[7] and the cases referred to therein, demonstrated that the head sentence was within range.  However, the applicant contended that the sentence imposed was manifestly excessive in requiring the applicant to serve six months of the head sentence in actual custody.  As mentioned, the applicant argued that the sentencing judge failed to properly take account of the factors in ground 2 and that failure to consider one or more of the stated factors would constitute an error that resulted in a manifestly excessive sentence.  It was contended that, in exercising the discretion afresh, this Court ought to set the parole release date so that the applicant is released forthwith.

[27] The respondent submitted that in fixing a parole release date at one third of the head sentence, the sentencing judge had taken into account, and given appropriate weight to, the factors referred to by the applicant.  Having regard to the comparable cases, it was submitted that the sentence was not otherwise manifestly excessive.

Errors in the exercise of the discretion

[28] As mentioned, the applicant contended that, in focusing heavily on the consequences to the complainant, the sentencing judge failed to take account of the applicant’s plea of guilty, her remorse, her mental state at the time of the offending and considerations of rehabilitation.

The plea of guilty and remorse

[29] The applicant contended that the sentencing judge failed to state in open court that account was taken of the applicant’s guilty plea in determining the sentence imposed, as was required by s 13(3) of the Penalties and Sentences Act 1992 (the Act).  It provides that: “When imposing the sentence, the Court must state in open court that it took account of the guilty plea in determining the sentence imposed”.

[30] Reference was made to R v Woods[8] and the observation therein that the necessity to take a guilty plea into account, state that this has been done and how it has been done is an essential part of the transparency of the sentencing process.  Care must be taken when considering Woods.  It is not authority for the proposition that how the plea was taken into account must be the subject of express arithmetical explanation.  Furthermore, as was accepted by counsel, in the absence of any explanation, or a statement of reasons pursuant to s 13(4) of the Act,[9] where reference to the plea of guilty is made by the sentencing judge, as was the case here, it might be inferred that the plea was taken into account in requiring one third of the head sentence imposed to be served, as is customary.

[31] It is well established that a plea of guilty in itself is a demonstration of remorse.[10]  The applicant complained that there was no indication that the sentencing judge took into account anything other than the ‘pragmatic’ value of the plea in sparing the community the expense of a trial.[11]  It was submitted that, in addition to pragmatic considerations, there was the further matter of the applicant’s demonstration of remorse.  In that regard, the sentencing remarks made no reference to the psychologist’s observation of the applicant’s “high level distress” upon hearing the recording made by the complainant.

[32] While the applicant’s plea was a matter to be taken into account in her favour, it is to be observed that the case against her was a strong one given the complainant recorded the statements by the applicant.  Nor did the applicant have the benefit of cooperation with the investigation, having lied to police in stating she had not spoken to the complainant in the previous six week period.

[33] As to the contention that the sentencing judge overlooked the applicant’s distress on hearing the recording as an indication of genuine remorse, the respondent argued that the distress was not demonstrative of remorse or empathy towards the complainant.  Certainly, the applicant’s text message to her sister-in-law before her arrest illustrated no insight into her behaviour.  Her distress on hearing the recording was able to be understood as representing emotion other than remorse and was thus ambivalent.

[34] I do not consider that it has been shown that the sentencing judge failed to properly take into account the matter of the plea or remorse.

Psychosocial factors

[35] The applicant’s mental state at the time of the offending was relevant to the exercise of the sentencing discretion, whether that mental state was categorised as a mental disorder[12] or emotional distress.[13]

[36] The applicant contended that, while the sentencing judge made mention of the psychologist’s reference to physical and psychosocial problems, her Honour failed to have proper regard to them in determining the sentence.  In particular, the sentencing judge disregarded the link between the applicant’s alcohol use and the offending on the basis that it was voluntary intoxication and not an impairment of the mind.  That was despite the psychologist’s explanation of the applicant’s alcohol abuse (that generated the offending conduct) as being a form of self-medication for serious and ongoing mood regulation problems.  The failure to consider the applicant’s mental state as a mitigating factor in assessing her moral culpability and the gravity of her conduct was said to constitute an error.[14]

[37] As this Court stated in Walton, deterrence must always be the major factor in sentencing for the offence of stalking.[15] However, sentencing purposes of general deterrence, punishment and denunciation assume less significance when the accused is suffering from a mental disorder affecting moral culpability.[16]

[38] As the respondent submitted, the applicant’s condition falls well short of a “mental disorder” which would affect “moral culpability” as in R v Huff.[17]  The offender in Huff was convicted on her plea of two counts of stalking with threats to use violence.  The conduct involved over 175 text messages sent to two complainants with threats to kill family members.  On one occasion, which comprised the second count, she threatened that the complainant’s daughter would be molested, raped, mutilated and killed.  The complainants were the former partner of the applicant (count one) and a close friend of the applicant (count 2).  There was no apparent motive.  The offender denied involvement, then admitted to sending the text messages but claimed she was made to do it by someone else.  She was 34 years old, with no criminal history, and was the sole carer of a young daughter.  She was diagnosed as having a serious disorder “comprising a concatenation of Post-Traumatic Stress Disorder symptoms and Severe Personality Damage and a variety of anxiety and depressive symptoms”.  The offender entered a late guilty plea after complainants gave evidence.  On appeal, a sentence of six weeks imprisonment followed by three years’ probation with a declaration as to time already served was imposed.

[39] In the present case, the psychologist stated that she believed that the applicant suffered from a “serious and ongoing mood regulation problem and that alcohol use has been her treatment strategy”.  Emotional distress on the part of an accused is common in offences of stalking.  In this case, the applicant’s own domestic situation was unconnected to the complainant, who was a completely innocent third party.  The applicant did not suffer from a mental condition of such an order that she was deprived or suffering from seriously impaired capacity.  Nor was it evident that there was a real lack of insight.  Indeed, the text message to her sister-in-law reveals conduct that was deliberate (albeit while acting at times when under distress) and carried out with insight into the detrimental effect it was having on the complainant.  That element of insight into how her deliberate and sustained conduct was impacting on the complainant substantially weakens the degree to which psychosocial factors weighed as significant in this case.

Rehabilitation

[40] In support of the applicant’s contention that, rehabilitation was a relevant consideration in this case to which the sentencing judge had no proper regard, it was submitted that the sentencing judge made no mention of the opinion of the applicant’s treating psychologist that incarceration would not be the sentencing option most conducive to the applicant’s rehabilitation.  Further, the sentencing judge erred in not taking into account the applicant’s efforts at, and needs in relation to, rehabilitation in fashioning the sentence.  That was said to be contrary to the “proper approach” articulated by Thomas J in R v Chivers,[18] as calling for “a more sophisticated exercise in which the relative factors of protection of society, deterrence, retribution and reform are to be considered, and none of them may be considered in isolation from the others”.  It was submitted that there were identifiable circumstances that “generated the unregulated and aggressive behaviour” that constituted the offending.  The applicant’s alcohol abuse as a form of self-medication, precipitated by the deterioration of a dysfunctional relationship, was, according to the psychologist, the root cause of the applicant’s offending.

[41] The respondent submitted that, while a sentencing court should provide conditions to help an offender be rehabilitated, it is not bound by a recommendation of a psychologist.[19]  An actual custodial sentence was required in this case given the seriousness of the offence.  Here the consideration of rehabilitation was served by fixing a parole release date.

[42] I do not consider that the applicant’s complaint is made out.  The sentencing judge expressly referred to the psychologist’s report and the observation in it that the offending, or at least the worst of it, was committed while extremely drunk.  Significantly, her Honour observed that while the applicant undertook counselling after her arrest, she had “yet to properly address the drinking issues”.  The absence of sustained efforts towards rehabilitation was a relevant consideration.

[43] Furthermore, rehabilitation must take its place as a relevant sentencing purpose, together with other relevant consideration of punishment, denunciation and, particularly importantly in a case such as this, general deterrence.  As Keane JA observed in Walton,[20] “one should not seek to trivialise the profound misery which this sort of misconduct can cause to the victim”.  The following statement of Williams JA in Walton[21] is pertinent:

“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.”

[44] The maximum penalty for the offence of stalking with threats of violence is seven years imprisonment.  The offence comprises 18 particularised occasions over a six month period with the offensive statements escalating to threats of violence.  The conduct only ceased once police were involved.  The applicant embarked on the course of conduct to “get rid” of the complainant as a neighbour from a house where the complainant had lived for 35 years.  That motivation was expressed to the complainant initially and confirmed in what she said to her on 20 August 2014.  The applicant boasted of her conduct in a text to her sister-in-law stating that “shes to (sic) scared to come home”.  This confirms it was deliberate conduct on the part of the applicant.  The offence was committed against a vulnerable lady in her 70s who, for the most part, was living alone during the relevant period.  The offending caused significant distress and fear in the complainant.  She could not engage in pastimes such as gardening in her yard.  She felt nervous when exiting and entering her property, which she was doing twice daily to visit her hospitalised husband.  She was in such fear that she spent $2,000 for added security of her house.  In the recording of 7 February 2015, the complainant was in tears saying that she wanted to die.

[45] The applicant has not demonstrated that the sentencing judge erred in the manner alleged such that exercise of the sentencing discretion miscarried.

[46] I would refuse the application.

[47] DALTON J:  I agree with the reasons of Philippides JA and with the proposed order.  I also agree with the remarks of Fraser JA as to the grounds of appeal advanced.