DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant in this matter, Tony William Greisbach appeals from a decision of the learned Magistrate at Toowoomba. The appellant pleaded guilty to one charge of stalking and two breaches of bail. No conviction was recorded. The appellant was given two years probation and also a two year restraining order.

2. [2]
   A Notice of Appeal was lodged against the decision of the learned Magistrate on 5 January 2004. An appeal was lodged against both conviction and sentence. An amendment to the Justices Act 1886 came into effect on that day. The relevant section is s.222 which provides as follows:

“(1) If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.

(2) However, the following exceptions apply-

(a)…

(b) if the order the subject of the proposed appeal is an order of justices dealing summarily with an indictable offence, a complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs;

(c) if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”

     Even prior to the recent amendment, s.2(b)  was in force. It was formerly s. 222(1A). A              stalking charge is an indictable offence.  The breach of bail offences               are dealt with   by complaint.

3. [3]
   Because of the legislation as amended, the appellant has limited his submissions to the punishment imposed. The effect of his submissions was that the learned Magistrate took into account irrelevant matters as the police prosecution incorrectly put before the court an incorrect interpretation of what the appellant has told police in his long record of interview. The police prosecutor had alleged that the appellant had referred to a conspiracy to prosecute the appellant.

4. [4]
   In fact the appellant alleges that the police prosecution lied about the matter. The appellant also contended that police misrepresented his statement about drugs and that he was a continuing threat to the complainant. The appellant relied on statements by police in the material opposing bail. Without deciding where the truth lies, I have proceeded to deal with this matter accepting the submissions by the appellant from the bar table that inaccurate statements were made on the sentence.

5. [5]
   However, the appellant pleaded guilty and to the extent that the police statements were relevant to the elements of the offence, I have accepted on the balance of probabilities those matters which were not contested by Mr Burns. For example, the restraining order was not contested. One can infer from the uncontested facts in this case that the restraining order was justified. The breaches of bail enhance this inference.

Nature of the Appeal

6. [6]
   On an appeal of this nature, the appeal is by way of a rehearing on the original evidence given in the proceeding before the justices:s.223. No leave was sought to introduce new evidence. Therefore, the submissions of the prosecution and the submissions of the solicitor for the appellant seem to be the starting point for determining whether the punishment was excessive subject to the earlier statement in paragraph 3 ibid.

7. [7]
   It is unnecessary to determine whether the approach under s. 2(b) is to determine whether the test is “manifestly” excessive or excessive. In dealing with appeals from sentences prior to the amendment in January 2004, a judge would not interfere with a sentence by a magistrate unless it was shown to be “manifestly excessive” or that there are some circumstances which show that the magistrate acted under some misapprehension of fact or on some wrong principle: per Macrossan C.J. in Hughes v. Hopgood (1950) QWN 21. As the sentences for the three offences both indictable and summary were included in one order, it is proposed to adopt the test which favours the appellant viz. was the sentence excessive.

Facts of the Offence

8. [8]
   It should be remembered that the appellant was represented by an experienced criminal lawyer, Mr. Burns on the hearing before the Magistrates Court. The facts were outlined by the prosecutor and then dealt with by Mr. Burns in his submissions. The main facts as outlined by the prosecutor were:

1. (a)
   The complainant formerly  resided in the same unit complex as the appellant at Creek Street, Toowoomba.  She moved to Houghton Street, Toowoomba.

2. (b)
   When she returned from work on 24 March 2003 she discovered the appellant standing in her yard at Houghton Street next to the rubbish bin outside her bedroom window.  No explanation was given for his presence.

3. (c)
   She subsequently received a letter from the appellant which she handed to police (described as the “1st letter in the file).  She told police that the appellant had been keeping her under observation for some time.  In the letter the appellant attempted to explain his actions for observing the complainant on 24 March.  He also explained why he had been taking an interest in the complainant’s personal affairs. The letter asked the complainant to contact him.

4. (d)
   On 10 April 2003 the appellant was interviewed by police.  He  had  gone to Texas where he believed she had lived.  He wanted to talk to her about Texas.  He told police that she was a “very attractive young lady and that she had a beautiful smile”.  He had kept her under observation as he believed that she smoked cannabis and was concerned for her welfare.  He said that he had gone to the bin at her residence at Houghton Street, in order to “rid it of any drug paraphernalia”.

5. (e)
   On 22 April, the appellant attended at the work of the complainant and handed her another letter (described as the “2^nd letter” in the file).  In that letter he said that she should not have gone to police as her actions would incriminate her in relation to drug offences.  He asked to meet her for coffee or a chat on a bus seat.

6. (f)
   On 23 April the appellant took part in a record of interview. He was charged and granted bail. I have read extracts of that record of interview.  It confirms the above matters referred to by police.

7. (g)
   On 16 May, the complainant received a typed letter from the appellant which alleged that the complainant was a drug user which had caused her to lie to police about complaints of stalking.  This sending of the letter was a breach of a bail condition.

8. (h)
   On 3 July the complainant received another letter from the appellant referring to comments in her statement to police.  The sending of this letter was also a breach of a bail condition.

1. (i)
   On 17 July the appellant took part in another record of interview with police admitting to writing the letter to the complainant’s  mother and writing the note on the letter redirected to the complainant’s workplace.  He stated that he still cared for the complainant and wanted to help her.

Submissions of appellant’s solicitor

9. [9]
   Mr. Burns outlined the fact that his client had no previous convictions and was 42 years of age. He submitted that no conviction be recorded and that a period of probation was appropriate. It was not an early plea as the matter had proceeded before the learned Magistrate whereby he was originally charged with two counts of stalking, retaliation against a witness and attempting to pervert the course of justice. However, once one charge of stalking was preferred, the appellant took legal advice and entered a plea. The appellant has a good work history having worked for Queensland Rail for 17 years. There was no history of mental health. The appellant according to Mr. Burns felt that the complainant had showed him some warmth when she saw him on one occasion but that his interest was not sexually motivated. The appellant was concerned about her friends and the use of drugs. He felt that as an older person he should keep an eye on her welfare. The appellant had written to the complaint’s mother out of concern for her daughter’s welfare not to intimidate or influence the prosecution case against him. Mr. Burns pointed out that the complainant had not been cross examined and so the appellant had spared her that ordeal and he had co operated in the administration of justice. No objection was taken to the restraining order and Mr. Burns pointed out that his client was aware that such an order would be made. Mr. Burns stated that his client meant her no harm and wished both the complainant and her parents well in the future.

Findings

10. [10]
    The reasons of the learned Magistrate were not available on appeal as there was a power failure during the course of the adjournment before the reasons were given. As this matter has been dealt with on the facts put before the court on the previous occasion, then it is a matter whether the punishment is manifestly excessive in relation to the stalking charge or excessive in relation to the breach of bail. As the latter offences were part of the overall punishment I have adopted an approach which favours the appellant viz. was the punishment excessive? In my view the punishment was fair, just and appropriate given the facts of the case.

11. [11]
    Young females should be protected from the unwanted advances of males even if the male acts with good intentions. The privacy of one’s home should be protected. The feeling that one is being watched can be disturbing to any person let alone a young woman living in a city away from home. The appellant was aware of her personal circumstances. To follow her to her new residence and loiter on her property is a very disturbing feature of this case. There must also be a general deterrence in this type of case. If the courts are not willing to punish persons who stalk innocent citizens then we would be failing in our duty to the community. In some instances, an actual term of imprisonment is justified if there is a breach of an order of the court. In the present case, the appellant had no previous convictions and a good work history. Unfortunately, there are some features of this case which warrant supervision of the appellant. The special condition that he undergo medical or psychiatric care as directed is essential in a case of this nature. No conviction was recorded. In some ways the sentence could be seen to be at the lower end of the scale.

12. [12]
    There was material before the Court which made an attack upon Mr. Burns and his conduct of the case. It was clear that there was no defence to a charge of stalking. By negotiating a plea to one charge only, the appellant was less likely to face a term of imprisonment . Had there been cross examination of the complainant and no remorse shown by the appellant, a more severe punishment could have been imposed. By pleading, he co-operated in the administration of justice.

13. [13]
    Even if one ignores what facts the learned Magistrate had taken into account and which are now challenged, and one considered the matter afresh, in my opinion the sentence was just. In expressing that view, I have not taken into account the interpretation of the facts put forward by the prosecution and which the appellant believed was distorted. In effect, without a full hearing with sworn testimony it would not have been possible to make a finding about the appellant’s assertions from the bar table. I have acted on the uncontroverted facts put forward at the sentence by both sides and proceeded on what findings were open on the balance of probabilities. One need only rely on the letters and the record of interview to make the necessary findings to justify the sentence.

Order: The Appeal is dismissed.