Grott v The Commissioner of Police
[2015] QDC 142
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- Grott v The Commissioner of Police[2015] QDC 142
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Grott v The Commissioner of Police[2015] QDC 142
Grott v The Commissioner of Police[2015] QDC 142
DISTRICT COURT OF QUEENSLAND
CITATION: | Grott v The Commissioner of Police [2015] QDC 142 |
PARTIES: | STEPHEN JOHN GROTT (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 680/15 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Dalby |
DELIVERED ON: | 4 June 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 May and 3 June 2015 |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – JUDGMENT AND PUNISHMENT – APPEAL AGAINST SENTENCE – APPEAL DISMISSED – Whether sentence imposed was manifestly excessive Commonwealth Criminal Code 1995 s 474.17 Criminal Code 1899 (Q) s 552H Justices Act 1886 (Q) ss 222, 223 and 225 Hili v R; Jones v R (2010) 242 CLR 520 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 Long v R (2001) 207 CLR 584 Petersen v Queensland Police Service [2014] QDC 82. R v Ali [2002] QCA 64 R v Briggs [2013] QCA 110 R v Hampson [2011] QCA 132 R v Henderson [2013] QCA 146 R v Walton [2006] QCA 522 Teelow v Commissioner of Police [2009] 2 Qd R 489 |
COUNSEL: | Mr J. Bailey for the appellant. Ms P. Price for the respondent. |
SOLICITORS: | Shine Lawyers solicitors for the appellant. Officer for the Director of Public Prosecutions for the respondent. |
Introduction
- [1]This is an appeal against sentences imposed in the Magistrates Court at Dalby on 22 January 2015. It is alleged that the sentences imposed were manifestly excessive.
- [2]The appeal is pursuant to s 222 of the Justices Act 1886 (Q) (“JA”).
- [3]Section 222(2) (c) of the JA provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate.
- [4]Section 225(1) of the JA provides that “On the hearing of an appeal, the Judge may confirm, set aside or vary the appealed order or make any other order in the matter the Judge considers just.”
- [5]Section 223(1) of the JA provides that the appeal is to be by way of re-hearing on the evidence given in the proceeding before the Justices.
- [6]In Teelow v Commissioner of Police [2009] 2 Qd R 489 Muir JA held at [4]:
“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is a result of some legal, factual or discretionary error …”
The charges and penalties
- [7]The appellant was charged with the following charges:
- (a)That between 1 April 2013 and 28 January 2014 at Dalby in the state of Queensland the defendant unlawfully stalked Romelda Aiken;
- (b)That between 1 April 2013 and 16 July 2014 at Dalby in the state of Queensland the defendant used a carriage service, namely an internet service provided by Telstra in such way that reasonable persons would regard that use as being menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code (Cth);
- (c)That on 27 January 2014 at Dalby in the state of Queensland the defendant used a carriage service, namely an internet service provided by Telstra in such way that reasonable persons would regard that use as being menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code (Cth);
- (d)That between 1 January 2008 and 4 October 2014 at Dalby and elsewhere in the state of Queensland the defendant dealt with another entity’s identification information namely photographs of John Brett Noonan for the purpose of facilitating the commission of indictable offence;
- (e)That between 1 January 2009 and 30 April 2013 at Dalby or elsewhere in the state of Queensland the defendant unlawfully stalked EJ.
- [8]With respect to the first charge of stalking the appellant was sentenced to two years imprisonment; with respect to each of the Commonwealth offences the appellant was sentenced to three years imprisonment to be released after serving one year by way of recognisance; on the second charge of stalking the appellant was sentenced to three years imprisonment and on the offence of dealing with another person’s identification the appellant was sentenced to six months imprisonment. All terms of imprisonment were ordered to be served concurrently and on the state charges a parole release date was fixed as at 22 January 2016 (after 12 months).
Prosecution submissions below
- [9]With respect to the first stalking charge and the first commonwealth charge, the complainant was a professional sports woman playing netball for the Queensland Firebirds. At the time of the offences, the complainant had an Instagram and Twitter account through which a large number of people followed her. In April 2013 an account user name “jayke_w” started following the complainant’s Instagram account. The complainant and this person (the appellant) began communicating through Instagram and became friends on Facebook. Jayke Williams was alleged in the Facebook account to be a 23 year old male from Gympie attending the University of Queensland playing reserve grade rugby league for the Manly Sea Eagles. This was an alias created by the appellant who in fact at that time was aged 47 working as a building certifier in Toowoomba. A number of photographs of a male person purported to be Jayke Williams on the site. After communicating for some time on Facebook the complainant and the appellant exchanged phone numbers and began communicating on Viber.
- [10]On 21 April 2013 the complainant sent a “selfie” of herself partially nude to the Appellant. She told him the photograph was for him only and not to show it to any other person. A second photograph was sent by her on 19 May 2013 which depicted her naked. On 19 May 2013 the complainant and the appellant spoke on the telephone. The complainant thought the person sounded a lot older than she expected. The following week the complainant and the appellant had an argument via text message in which he reneged on a commitment to come to her netball game to meet her. She stopped speaking to him via social media and deleted him from her Instagram account.
- [11]A few weeks later the appellant put messages on his Facebook account talking about suicide. The complainant messaged him to see if he was okay but there was no reply. In May 2013 the appellant began following the complainant again on Instagram and Twitter. On 30 June 2013 he sent her messages on Twitter taunting her about losing upcoming games. He also sent a number of abusive messages to her saying he was going to kill himself.
- [12]On 14 July 2013 using an Instagram account with the user name “bertieboys 89” the appellant posted one of the complainant’s naked photographs tagging the complainant’s account so all of her followers could see it. On 15 July 2013 the appellant messaged the complainant on Facebook stating “you’re a Jamaican drug cheat”, “just another fallen star with nude pictures on the internet” and “must feel awful that you have let the entire state of Queensland down. I notice every year your thighs are getting thicker. Good luck with that lover. Hippo hips. I think someone called you. Looks like a racehorse of its hind legs. Laugh out loud. Thing is you’re again we played you you lost loser haha.” And further “haha you think I’d kill myself over a nigger.”
- [13]The complainant began feeling fearful of what the appellant would do next. She deleted all of her social media accounts as a response.
- [14]On 27 January 2014 some six months after the Instagram contact ceased the appellant created an Instagram account with the username “romeldaaiken”. Posted on the account was a profile picture of the complainant from her netball Queensland profile and also the naked selfie that the appellant had obtained. There were screen shots of conversations between the complainant and the appellant under the use of his name alias including ones where he called her a “nigger” and saying she looked like a racehorse on hind legs. A complaint was then made to the Police. The Police made enquiries and found that the Telstra service was being used by the appellant.
- [15]There was a Sunday Mail article about the incident which featured pictures of the appellant in his alias form, Williams, and a number of people contacted the newspaper stating they had communicated with Williams through various dating websites. This led to the identification of the appellant as the dating website “www.hi5.com” showed that he had logged onto that site 50 times in late 2012 using particular IP addresses. The IP addresses were from an internet account registered to the appellant. There was also a dating website “slinky”, which also helped to identify the appellant.
- [16]On 3 October 2014 Police from the Mt Gravatt CIB executed a search warrant on the appellant’s house at Mt Lofty in Toowoomba. The appellant, his wife, and one of his daughters were in the dwelling. A number of computer devices were seized and Police located several photographs of the person John Noonan as well as several selfie photographs of women. There were also several social media and dating applications on the devices with some 17 open conversations with women. In Tinder there were open conversations with 40 women under the name Jayke Williams using the photograph of Noonan. Noonan’s photograph was used by the appellant on various dating websites including during his interactions with Romelda Aiken. In one of the computers as well as photographs of Noonan there were several photographs of men masturbating as well as “selfie” photographs of women and shots of women masturbating. There was also an excel spreadsheet comparing seven of the women in categories being hair, face, bum, boobs, leg, weight, fantasy and eyes. Police identified some of these women to be females around the age of 20 and from the Dalby area.
- [17]The appellant was interviewed by Police in a record of interview. He made some admissions to committing the offences. He said that he created a fake Instagram account in April 2013 because he had two teenage daughters and wanted to see what they and their friends were doing. He admitted he never actually connected with his daughters or their friends and started following Ms Aiken because he’d been watching netball and thought she was a good player. As to the naked “selfie” photograph he alleged he’d seen it on another Instagram account sometime in January and saved it to his computer because he’d previously connected with her on Instagram and he thought he should tell her about it but realised he didn’t need to after reading the Sunday Mail article. He initially denied having any other social media accounts. After the Police read the complainant’s statement to him he then admitted to creating a Facebook profile in order to make the Instagram account seem more real and admitted the facts outlined. He said he created the further Instagram account in the complainant’s name some six months after communication had ceased because he was angry at her and something must have set him off. The Police then questioned the appellant repeatedly on whether any other profiles were created and he said there had not been. He then said he remembered creating a “Plenty of Fish” dating account, again to see what was going on around his daughters. He denied any other accounts. The Police then asked him about the “hi5” site. The appellant said he couldn’t remember creating it but then said he was just mucking around and didn’t mean to harm anybody. The Police then questioned the appellant as to how he obtained the photographs of the complainant Mr Noonan. He said he’d come across the profile randomly and chose Noonan because he was a “young good looking guy who a woman would connect with.” He was then charged at the Toowoomba watch house.
- [18]Turning to the second stalking charge and second commonwealth charge, the complainant in 2009 was 15 years of age and a year 10 student at the Dalby high school. The appellant was using the name Jayke Williams and added the complainant as a friend on Facebook. She accepted the request as the Jayke Williams profile had several mutual friends. The first thing the appellant said to the victim on Facebook was “hey I don’t want to seem forward but you have beautiful eyes”. They began talking on a daily basis. The appellant alleged he was from Noosa but had worked in Dalby and this is why they had mutual friends. He said that he was a reserve grade rugby league player for the Manly Sea Eagles and was studying to be a physiotherapist. He began asking the complainant to send him photographs of herself. She sent him a number of photos in her bra and underpants and later, one of herself naked. He spoke with her sexually about wanting to have sex with her. He wanted to “fuck her” and her to give him a “blowjob” and he would perform oral sex on her. He also asked whether she could do “deep throating” or whether she liked “anal”. The complainant became attached to the appellant’s virtual profile. On a number of occasions they made arrangements to meet but he always cancelled.
- [19]By the end of 2009 the complainant realised that nothing was going to happen with the appellant and she entered into a relationship with a local boy in Dalby. Immediately after she entered this relationship and updated her Facebook to show this, the appellant became extremely angry towards the complainant. He sent her abusive messages calling her a slut, he made her feel guilty for getting a boyfriend. At the same time there was a gossip column via Facebook involving the Dalby Township called “Dalby Gossip”. The administrator of the page would add a number of people and then begin posting. Around 70% of the content on these pages was about the complainant saying things like she had sex with three guys at a party, was put on a spit at a party and that she was a slut. The pages were reported to Facebook and were deleted, but every time they were deleted they were replaced by other comments. The complainant asked the appellant about these pages but he denied being responsible for them. He said he cared too much for her to do something like this.
- [20]The complainant began talking to the appellant again in 2010 when she had a fight with her boyfriend. He always attempted to turn the conversation to sexual matters. After the complainant ended the relationship with her boyfriend in 2010 she started communicating with the appellant again who was again using the alias Williams. The appellant told her he would get with her when she’d finished school. Again in about February or March 2011 at the start of grade 12 the complainant realised nothing was happening with the appellant as he never came to see her and she told him she no longer wanted to talk to him. She stopped replying to his messages. About two weeks after she ignored him a Facebook account was created. It sent five photographs of the complainant, including the naked photograph to 50 to 70 friends of hers on her Facebook account. The complainant asked the appellant about this again but he denied it. From this point in time the complainant was extremely scared of the appellant as she realised every time she tried to cut contact with him something bad would happen. She therefore continued to reply to his messages but less, only to keep the peace with him.
- [21]At this time a number of other Facebook account holders started contacting the complainant claiming to be friends or girlfriends of Williams. Some of these messages were nice and some were abusive. The complainant would receive messages saying the appellant had gone off the rails drinking and it was all the complainant’s fault. In all about 8 to 10 Facebook accounts were created, all claiming to be associates of Williams. She replied to these accounts only out of fear.
- [22]In September 2011 an email was sent to the principal of the Dalby state high school from an email address almost identical to that of the complainant’s which said “Dear Mr Russell, you get your dick sucked in your office by students and you’re nothing but a cunt. From your caring student [EJ].” The complainant was able to explain to the school she did not send the email and from then on she stopped replying to the appellant but continued to receive messages from other Facebook accounts, from people claiming to be friends of the Williams.
- [23]One day in mid-2012 the complainant started receiving a number of SMS messages containing photographs of penises on her phone, some accompanied by messages telling her she was hot. She received over 100 messages in the space of a couple of hours. She responded to one of these messages and was advised that the person sending the messages had obtained her number from a dating website called “Plenty of Fish”. It was the appellant who created her profile on the “Plenty of Fish” website under her own nickname. In that profile were a number of photographs she had only sent to “Jayke Williams”. Also in the profile it said she was a teenager looking for sex and people should contact her. The profile was reported and it was subsequently removed from the website.
- [24]In about October or November 2012 the complainant’s uncle found a USB drive left outside his workplace in Dalby. On the drive were all of the photographs the complainant had sent to Williams, namely 15 to 20 photos including the naked ones. The complainant continued to ignore messages she received from the appellant. But she continued to receive messages from the appellant’s friends.
- [25]As a result of this torment the complainant attempted suicide in 2011, fortunately this was not successful and she left Dalby due to the psychological harm. The complaints came about to Police after the Courier Mail article involving the Romelda Aiken stalking.
- [26]The prosecutor informed the learned Magistrate that the appellant had no criminal history. The prosecutor informed the learned Magistrate that the torment suffered by EJ was over an extended period, it was protracted, she was a young female victim and the behaviour of the appellant was grooming type behaviour. Extreme psychological harm had been suffered by the complainant.
- [27]As to Ms Aiken, she was a professional sports woman and much social damage was done to her in addition to the psychological impact on her. The learned prosecutor informed the learned Magistrate the maximum penalty for the stalking counts was five years imprisonment, there being no circumstance of aggravation.
- [28]The prosecutor relied on two comparable decisions which I will discuss later. The prosecutor submitted that a deterrent punishment was appropriate in this case.
Defence submissions
- [29]Defence counsel submitted that the appellant had a somewhat difficult childhood, his father suffering from significant illnesses including a very serious heart condition which the appellant had observed as a young child. His father could not speak or communicate properly which caused him a great degree of stress. The appellant was always a hard worker, he commenced working part time at school and ultimately obtained an apprenticeship as a plumber in 1986 with the Dalby town council. He completed his apprenticeship and was promoted to a leading hand plumber and worked hard in that job. He had completed a number of courses and also raised a family with three daughters, building a home for them. He ultimately obtained his license as a building certifier and conducted his own consulting business and worked for several local councils as a building certifier until the amalgamation of some of these councils. This caused some difficulties in his business and it placed him under a degree of considerable stress because he had to move from Dalby to Toowoomba. He was able to keep his business going and was able to employ his wife and one of his daughters. One of his daughters was studying town planning, the other daughter had a family and the final daughter was studying at a TAFE College. His wife and two of his daughters suffer depression and anxiety. The end result was that the appellant was a hard working family man.
- [30]The appellant himself could not understand what triggered him to commit the offences but thought it was a combination of business pressure and depression in the household.
- [31]Defence counsel tendered a psychological report from Gary Logan dated 25 November 2014. This report noted that the appellant had been referred to him for assessment and treatment of anxiety, stress and depression. There had been four sessions. During the first interview the appellant had reported occasional suicidal thoughts but he had no plan or urge to act upon these. At the time of his second interview though he had recently been discharged from the hospital following a suicide attempt. The psychologist noted that his depression, anxiety and stress symptoms were precipitated by the news of the criminal charges. He thought the appellant was suffering from a major depressive episode with severe anxiety. In the last two sessions he had displayed insight and levels of remorse into his offending behaviour. He recognised his behaviour on Facebook was motivated by an intense period of loneliness and the stress of having to move away from his home and life in Dalby to reside in Toowoomba for work. The psychologist and he had begun to work on developing his cognitive and emotional regulation skills. At the time of the last interview he was feeling much better and was not depressed. As of 24 November 2014 he no longer met the criteria for any mental health diagnosis.
- [32]Defence counsel also tendered three character references. Each of the references spoke well of the appellant, finding the allegations out of character for him.
- [33]Defence counsel stressed that the appellant had accepted his responsibility by making some admissions and also pleading guilty to the charge. The plea of guilty was particularly important because the trial would have been lengthy and not inexpensive. Also, the complainants had not been cross-examined. It was accepted by the prosecution that the plea was a timely one. The appellant had no previous convictions and was otherwise a hardworking and well regarded member of the community, being a family man and the sole provider for his family. With respect to the alleged suicide attempt by EJ the defence pointed out that it would be wrong to shoot the entire blame for that home to the appellant as it was clear on the material other people were tormenting her as well. It was pointed out there was no victim impact statement or sworn testimony in this regard from the complainant.
- [34]The effect on the appellant’s family was relevant and also his business would fail if he was obliged to spend time in prison. It was submitted that whilst it was a serious case it was not inevitable for any actual imprisonment to be served. It was submitted that an immediate parole order should be made or, alternatively, a fully suspended sentence. A restraining order was not opposed.
Decision
- [35]The learned magistrate referred to the facts read out into the record by the prosecution. She found the stalking of EJ was despicable, having occurred over four years. It was accepted that EJ suffered extreme psychological stress as a result. He also stalked Ms Aitken. The learned magistrate took into account matters submitted by both the prosecution and the defence. Her Honour took into account the principles of sentencing contained in both the Penalties and Sentences Act and the Commonwealth Crimes Act. The learned magistrate took into account matters of mitigation including the timely plea of guilty, his remorse, his cooperation, his business situation, and the fact he had no criminal history. Her Honour also took into account the character references and the psychological report. Despite all of this, the learned magistrate was satisfied that “strong deterrence” was relevant in this case. In the result the learned magistrate imposed the sentences I referred to earlier in this decision.
Submissions
- [36]The appellant submits:
- (a)In all of the circumstances the sentence was excessive;
- (b)The comparable decisions would dictate a penalty lower than that imposed here;
- (c)The comparable sentences to which reference will be made shortly were not less serious than that of the appellant and in light of the comparable decisions, when one considers all of the circumstances of the appellant (namely, his timely pleas of guilt, cooperation, remorse, lack of criminal history, and effect on his employment), a head sentence of three years’ imprisonment requiring to serve an actual term of imprisonment is manifestly excessive.
- [37]The respondent on the other hand submits:
- (a)The sentence is not manifestly excessive, and the seriousness of the offending warranted an actual custodial sentence;
- (b)The sentence is not outside of the range of sentences which could have been imposed;[1]
- (c)Even if the appellate court may have imposed a different sentence, that is not a justification to set aside the sentence imposed;[2]
- (d)Other comparable decisions would support the imposition of the sentence imposed;
- (e)The learned magistrate in this case was apprised of both the aggravating and mitigating factors of the appellant’s offending.
- (f)The appellant’s offending was multifaceted and complex and involved an element of identity fraud;
- (g)The offending by him was persistent and extended. He continued a campaign of harassment for four years on the first complainant and then went on to a more high profile and well-known complainant. It was not isolated offending;
- (h)In all of the circumstances the aggravating features placed the appellant’s offending into a more serious category than the comparables relied upon by the appellant.
Comparable decisions
- [38]It is necessary to consider relevant comparable decisions.
- [39]In R v Walton [2006] QCA 522 the offender received six months’ imprisonment, wholly suspended. The immediate difference with Walton is that the period of offending occurred on three separate occasions – the first being 19 March 2004 until 26 April 2004; the second, 1 January 2005 to 12 April 2005; and the final period, April 2005 until August 2005. The offending was far less serious, involving numerous phone calls in the periods I have mentioned. I consider Walton to be a far less serious case than the instant one.
- [40]In R v Briggs [2013] QCA 110 the appellant received 15 months’ imprisonment, wholly suspended. It involving two complainants. He was convicted by a jury of the two counts. The conduct with respect to the first complainant occurred between November 2007 and July 2010. This involved silent calls to her company phone and text messages suggesting she was engaging in sexual activity with “Ugly Dave”. He also called her work colleagues and attended her home, on one occasion banging on the window. The second complainant matter involved offending between February 2008 and July 2010. Again, this involved a number of telephone calls and texts over the relevant period. I consider that the offending in Briggs to be less serious than the instant case. I note it was said, “The sentence of 15 months imprisonment was, in my view, a proper and moderate one, having regard to its immediate suspension.”
- [41]In R v Henderson [2013] QCA 146 the appellant was convicted after a trial of one count of unlawful stalking with a circumstance of aggravation. The stalking occurred over a short period, namely 7 February 2011 and 19 April 2011, and he intentionally threatened to use violence against the complainant. Some text messages were sent, a video file of his penis, some sexual suggestions, a further video file of his penis ejaculating, abusive text messages, suggestion she commit suicide, and a threat to kill her. The appellant in that case was sentenced to 18 months’ imprisonment with a parole release date after five months. Again, despite the circumstance of aggravation being charged, I consider the instant case to be more serious than the case of Henderson.
- [42]In R v Conde [2015] QCA 63 the appellant was convicted after a trial of unlawful stalking with a circumstance of aggravation, namely the use of violence in connection with one of the acts, and was sentenced to 15 months’ imprisonment, suspended after seven months. There were 59 particularised acts occurring from 20 July 2010 to 31 July 2012. In my view, Conde contains some similarities with the instant offending (the offender created a web page and published defamatory statements in it about the complainant) but I consider the appellant’s offending here still more serious than that, considering the time over which it was committed, the number of complainants and the element of identity theft.
- [43]In R v Ali [2002] QCA 64 the appellant was convicted after a trial of one count of stalking and was sentenced to three years’ imprisonment. The stalking in Ali was serious, involving conduct between August 1999 and November 2000. The appellant deliberately made loud noises by banging on the fence (the complainants were the next door neighbours), using power tools close to the boundary and running the lawnmower in one spot close to the boundary. They lit fires so that smoke would drift onto the neighbours’ patio. Video cameras were installed directed towards the complainant. The appellant regularly abused, wolf-whistled, glared and made offensive gestures towards the complainant. He installed and directed spotlights towards them and one occasion parked his car with headlights directed into their home. The complainant claimed that items such as broken tiles and roofing nails were thrown onto her property. A number of plants died, and he erected three white crosses on the dividing fence line to keep the complainant away, who was “the devil”. He told her that she wanted to sleep with him and that she used to sit on the letterbox and show him the pubic hair. The behaviour made the complainant frightened to walk in her own backyard, especially when she alone. Ultimately, the conduct continued after the appellant was charged with stalking and included an episode at the complainant’s new home where they had moved to escape the appellant’s behaviour. The Court of Appeal held that the sentence was at the upper end of the appropriate range but was not excessive. The offending was described as deliberate, serious and sustained. Whilst the offending in Ali was persistent and extended and had serious emotional consequences, I think that the present matter could be regarded to be a more serious example of stalking behaviour. The current matter involves two complainants, a longer offending period, and an extreme example of a campaign of harassment and intimidation inflicted upon the two complainants for seemingly no reason other than the appellant’s own gratification.
- [44]Finally, the respondent relies on a decision of Petersen v Queensland Police Service [2014] QDC 82. In that case, three years’ imprisonment was imposed on two counts of stalking and concurrent six month terms of imprisonment on the Commonwealth offences. A parole eligibility date was set. I think the level of offending in the instant matter is more serious than that of Petersen. Whilst Petersen involved five separate complainants, the offending was only over one to three months, compared with over four years in the present matter. The complainants in Petersen were all of mature ages compared with the complainant EJ, who was only 15 when the offending commenced. Whilst there were threats made to the complainants in Petersen, there was not the damaging and potentially lasting impact of social media being utilised.
- [45]The present matter is further aggravated by the element of identity fraud. This was perpetrated by the appellant posing as a much younger man and using his image, and also by creating an Instagram account using the complainant’s name.
- [46]Turning to the Commonwealth charges in R v Hampson [2011] QCA 132 the applicant received 2 years imprisonment with recognisance release orders on 2 offences under s 474.17 of the Commonwealth Criminal Code. The applicant had a relevant prior conviction. He suffered autism and was on a disability support pension. He subscribed to 2 tribute pages to deceased young people. He posted a number of offensive and insulting comments on these pages on 15 February 2010 and then between 22 and 28 February 2010. After the court noted that the maximum penalty should be reserved for the worst category of case, at [34] the court considered theoretical examples of worse cases. The majority held at [45] that the applicant should receive 2 years imprisonment with release after 8 months. I consider the present case to be a worse one than Hampson in nature and extent.
- [47]I have had regard to exhibit 4- the schedule of sentences prepared by the CDPP.
- [48]I have also had regard to exhibit 3 but have ignored the fresh evidence contained therein.
Conclusion
- [49]In the result, having considered the comparable decisions, it is my respectful opinion that a global head sentence for all matters of three years’ imprisonment is not excessive. I consider this case to be a serious one. The actions of the appellant in constructing fake social media profiles on Facebook and Instagram were sinister and directed only at humiliating and damaging the complainants’ reputation. The matter was further aggravated by the element of identity fraud. This was perpetrated not only by the appellant posing as a much younger man and using his image but also by creating an Instagram account in the complainant’s name.
- [50]The prevalence of social media and its widespread use in the community leaves users vulnerable to offenders taking advantage of peoples’ images and personal information. The fact that social media is so widely used and accessible by anyone leaves open the opportunity for offenders to impart negative and lasting consequences upon victims’ reputations and social media profiles. This is particularly prevalent with the now common practice of potential employers performing social media searches on prospective employees. The appellant’s offending was multifaceted and complex and involved an element of identity fraud. Not only did he go to extraordinary lengths of creating false social media profiles but he went on to create a false persona which he used to lure females into communicating with him. This also had the effect of disguising the offender’s identity for a period of time. The offending was further aggravated by the appellant adopting the complainant’s (Aitken’s) name and using it to create a fake Instagram account to further carry out his offensive and humiliating offending. The complainants were not only subject to unwanted attention by the appellant but suffered the humiliation of defamatory and personal information on their images being made public.
- [51]In the circumstances, whilst the sentence may be thought to be at the upper end of the range, bearing in mind that five years’ imprisonment was the maximum on the stalking count,[3] it is my opinion the penalty on the count involving EJ was within the appropriate sentencing range. The mitigating factors (namely, the plea of guilty, the cooperation, and the appellant’s personal circumstances) were reflected in his release after serving one-third of that time.
- [52]I certainly consider the penalties on the other state charges also to be within the appropriate range of penalties.
- [53]With respect to the Commonwealth offences, I note that the maximum penalty was three years’ imprisonment. This is a case therefore where the maximum has been imposed. I do not consider in the circumstances there is any injustice in this. I consider the offences to be a very serious example of such offending, warranting a sentence at the upper end of the range. Additionally, no miscarriage of justice can be said to have occurred because the penalties on each of those counts are concurrent with the other prison terms imposed. Whilst I may have imposed 2 ½ year terms for the commonwealth offences if sentencing at first instance (bearing in mind the maximum available and the fact the appellant had no previous convictions) this is not a sufficient basis for allowing the appeal.
- [54]In the circumstances, for the reasons I have given, I confirm the orders made below and I dismiss the appeal.
- [55]With the consent of the parties, I make no order as to costs.