DISTRICT COURT OF QUEENSLAND

1. [1]
   On 27 June 2002 the appellant appeared in the Magistrates Court at Redcliffe where he pleaded guilty to one count of unlawful stalking and four counts of contravention of a protection order under the Domestic Violence (Family Protection) Act 1989.  In respect of each charge he was convicted and sentenced to imprisonment for 90 days, to be suspended after serving 48 days, with an operational period of two years.  There was a declaration that the time the appellant had been in custody, a period of 48 days, be taken as time already served pursuant to the sentence, so that he was entitled to be released on suspension immediately.  Later that day the sentence was reopened on the ground that the appellant had in fact been in custody for only 45 days;  the period of 90 days was not varied, but the suspension took effect after 45 days and the declaration was varied so that there was 45 days already served.  Convictions were recorded.

2. [2]
   The complainant and the appellant were formerly living together and have a child. Questions of access to the child by the appellant had apparently been the subject of some order in the Family Court. In March 2002 a protection order was made under the Domestic Violence (Family Protection) Act.  On 19 March 2002 the appellant had gone to the premises where the complainant was living and let himself in with a set of keys that he retained, in order to visit his daughter, although the visit had not been agreed to and was not authorised under an order of the Family Court.  On 4 May the appellant made seven or more phone calls to the complainant’s residence during one of which he stated in effect that he was looking forward to seeing her dead.  He delivered or had delivered a letter to her at her address.  Later he went to the residence himself for about 10 minutes.  The following day he made at least 19 phone calls to the complainant’s residence.  On 8 May the appellant had come upon the complainant while they were both driving cars, and had followed her at one stage, pulled beside her and forced her to swerve to the left.  That evening he attended the complainant’s residence and attempted to gain entry and the police were called.  Apparently the same incidents were relied on as breach of the domestic violence order and as constituting particular occasions which amounted to the offence of stalking.

3. [3]
   The appellant had two previous convictions alleged and admitted, an offence of common assault in October 1998 and an earlier breach of a domestic violence order in September 1999, for each of which a fine was imposed.

4. [4]
   It was submitted for the appellant in the Magistrates Court that the complainant had not been complying with Family Court orders in relation to access to the daughter. That had led to further contact with the complainant, and it was alleged that the complainant had also been telephoning the appellant at about the same time he had been telephoning her. The complainant suffers from a number of serious medical conditions and has had heart attacks, and has at least at times received significant care from the appellant. There had been an arrangement under which the appellant would take their daughter to school and he had called at the house on one occasion, and the complainant had telephoned the police. Although it was technically a breach of the order, it was undertaken in the reasonable expectation that she was not objecting. The appellant had found the whole incident very difficult, and had sought counselling through the Redcliffe Hospital, although that had ceased when he was remanded in custody. It was submitted on his behalf in the Magistrates Court that it would be appropriate, given that he had been in custody for some time, to sentence him in effect to time served.

5. [5]
   The magistrate when passing sentence said that he was concerned about the need for deterrence and accordingly thought is was appropriate that there be a suspended component of the sentence. He was worried about the appellant’s statements about the complainant dying, which he interpreted as threats, and was understandably concerned that there was a risk of further offending.

Respondent’s application

6. [6]
   On the hearing of the appeal the respondent applied to have the appeal struck out on the ground that it had not been properly served, and because there had been a failure on the part of the appellant properly to pursue the appeal. No outline of argument has ever been filed on behalf of the appellant, and when the matter came before me on a Registrar’s reference I ordered that it be set down for hearing. In such circumstances, if the appellant raises anything to which the respondent cannot immediately respond, the matter can be adjourned. I was also then aware of the presence on the file of a note from the appellant received at Redcliffe Courthouse on 23 July 2002 seeking a date for hearing around 19 September and saying among other things “Is there any chance it could be heard in my absence.  If so, please go ahead.”   However the appellant did appear on the hearing and made submissions in support of the appeal.

7. [7]
   The appellant said that he had sent copies of the notice of appeal by post to the Police Commissioner and the police station concerned: p. 5. Searches of the Commissioner’s records did not reveal that it had been received, but the respondent was aware of the appeal as a copy of the notice of appeal had been sent by the registry to the Director of Public Prosecution. Ultimately the respondent’s application was not pressed, and in the circumstances I think that was appropriate.

Submissions for the appellant

8. [8]
   The appellant was concerned that leaving him with a suspended term of imprisonment hanging over his head for so long placed him in a very difficult position because of the continuing difficulties he is likely to have with the complainant, over access to his daughter. Although there had been a period immediately after the appearance in Redcliffe when the appellant had been away from the area, out west, he told me that he is now regularly seeing his daughter for access and he has continued to telephone the complainant in connection with this. He alleged that the complainant has been manipulative, ringing the police without justification, and that she was behaving unreasonably and capriciously. He said he felt like he was walking on eggshells when he went round to see his daughter: p.9. He pointed out that he had not previously been imprisoned, something that he had been proud of, and that after this incident he had been in a mental hospital following a nervous breakdown: p.6. He also maintained that he and the complainant were now getting on better than they were, although I do not think that any improvement in the relationship since the time of sentencing in a manner to which I can probably have regard on appeal, since in the absence of some special direction the appeal is by way of rehearing on the material before the Magistrates Court. I should say that the various matters advanced by the appellant were broadly similar to the arguments put on his behalf in the Magistrates Court as I have mentioned earlier.

9. [9]
   The difficulty in a case like this is that there is justification for some further contact between the parties because of the need for arrangements to be made for the appellant to have access to his daughter. It is reasonable and inevitable for there to be some continuing contact between him and the complainant because of this. In circumstances such as this there is a potential for things to get out of hand, particularly if arrangements for such access are not honoured on one side or the other. Bearing this in mind and bearing in mind also neither the magistrate or I have the benefit of a detailed version of the complainant (something which would normally only occur at a trial), it is difficult to tell in a situation like this just where the rights and wrongs lie. It does appear that during the period covered by the stalking charge there were clearly many more incidents of contact than would be justified by any reasonable need to make arrangements for access to the daughter, at least assuming that the complainant was not being difficult about such arrangements. Of course such a situation can easily develop, if the complainant felt that she was receiving more attention from the appellant than she ought to have received and responded by being difficult about access, either by way of revenge or simply in order to avoid further contact with the appellant.

10. [10]
    What I am concerned about in relation to the sentence is that, given this background and the continuing difficulty about access, there is particular risk of further offending, and that does mean that the suspended term of imprisonment puts particular pressure on the appellant. The offence of stalking is potentially a very serious one, although in all the circumstances I do not regard this as a serious example of the offence. Nevertheless it is difficult to say in almost any case of stalking that a custodial sentence is outside the range of permissible sentences.

11. [11]
    With regard to the offence of breach of the domestic violence order, I would refer to the matter of R v Wood an unreported decision of the Court of Appeal dated 16 August 1994 (CA184/94) where the Court warned against not taking seriously the offence of breaching a protection order under the Domestic Violence (Family Protection) Act.  I am conscious of that principle.  There was a previous conviction for breach of such an order.

12. [12]
    I am conscious also that it is not simply a question of what sentence I think is appropriate in all the circumstances; the appeal must fail unless the appellant can show either that the magistrate in imposing sentence made some error of principle, or that the sentence imposed was so severe that no reasonable magistrate would have imposed such a sentence in such circumstances. I think it is also fair to say that the sentence imposed was to some extent influenced by the circumstance that the appellant had been in custody for 45 days already following his arrest on these charges. It could hardly be contended that the term of 45 days imprisonment would have been manifestly excessive, and in such circumstances it is not easy to see that a term of 90 days imprisonment, suspended after 45 days, is manifestly excessive.

13. [13]
    I can appreciate that having a suspended term of imprisonment hanging over his head is a matter of some particular continuing concern for the appellant, and that it does make it more difficult for him to deal with what might be a very difficult situation anyway, in trying to arrange access to his daughter, but on the other hand in the light of the material before the magistrate it was reasonable for the magistrate to be concerned about deterrence. There was material before him which suggested that there was a risk of further breaches of the protection order, and in those circumstances personal deterrence was a relevant factor.

14. [14]
    The magistrate seemed to regard a statement made by the appellant to the complainant, that he wished she would die, as being in the nature of a threat. The complainant has had heart problems and it was said had a reduced life expectancy, and it seems to me that this statement, although uncharitable, is more a reflection of frustration on the appellant’s part with what he sees as difficulties being caused for him by the complainant than any particular expression of an intention or desire himself to cause her harm in the future. Nevertheless there was other material before the magistrate (and for that matter before me) suggesting that there was some real risk of future breaches of the protection order, and in those circumstances the magistrate was entitled to be concerned about the issue of personal deterrence.

15. [15]
    I can appreciate that the appellant feels that he is in a difficult situation particularly in relation to access to his daughter, and that he feels under particular pressure because of the suspended term of imprisonment, the pressure of which he regards as unreasonable. Nevertheless, having considered carefully the material which was put before the magistrate, and everything which was said by the appellant in support of the appeal, I am not persuaded that the sentence imposed by the magistrate was manifestly excessive, and the appeal is dismissed.