Porter v Queensland Police Service
[2016] QDC 335
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- Unreported Judgment
- Porter v Queensland Police Service[2016] QDC 335
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Porter v Queensland Police Service[2016] QDC 335
Porter v Queensland Police Service[2016] QDC 335
DISTRICT COURT OF QUEENSLAND
CITATION: | Porter v Queensland Police Service [2016] QDC 335 |
PARTIES: | MARK FRANCIS PORTER (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO.: | APPEAL NO. 106/16 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 16 December 2016 |
DELIVERED AT: | Cairns |
HEARING DATE: | 14 November 2016 |
JUDGE: | Morzone QC DCJ |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – unlawful stalking – mode of hearing of appeal – whether magistrate was biased against appellant – whether the magistrate’s decision was unreasonable and unsupported by the evidence – whether sentence manifestly excessive. Legislation Justices Act 1886 (Qld), ss 222, s 223 Criminal Code 1899 (Qld), s 359B, s 359C Cases Johnson v Johnson (2000) 201 CLR 488 Neil v Nott (1994) 121 ALR 148 Gallo v Dawson (1990) 93 ALR 479 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Warren v Coombes (1979) 142 CLR 531 House v The King (1936) 55 CLR 499 R v Walton [2006] QCA 522 R v Hooper; ex parte Commonwealth Director of Public Prosecutions [2008] QCA 308 |
SOLICITORS: | The appellant appeared on his own behalf. The Office of Director of Public Prosecutions for the respondent. |
- [1]On 7 June 2016 the appellant was convicted after a summary trial in the Magistrates Court of using a carriage service to menace, harass or cause offense and unlawful stalking.
- [2]For the carriage service charge, the appellant was fined $500 and in default, 10 days of imprisonment. For the unlawful stalking charge, he was sentenced to four months of imprisonment, wholly suspended for a period of 18 months. The magistrate also imposed a restraining order effective for four years.
- [3]The appellant now appeals the conviction and sentence for the unlawful stalking offence. He does not contest the conviction or sentence in relation to the carriage service charge.
Background
- [4]The self represented appellant was charged with two offences:
- Using a carriage service to menace, harass or cause offense committed between 7 October 2014 and 23 August 2015; and
- Unlawful stalking committed between 7 October 2014 and 14 May 2015.
- [5]At the outset of the hearing, the appellant indicated a plea of guilty for the carriage service charge.[1]The trial proceeded in respect of both charges to avoid the prospect of the appellant belatedly changing his position. The prosecution relied upon the appellant’s conduct in relation to the carriage service offence as part of the culpable conduct constituting the stalking offence in the relevant period.
- [6]The unlawful stalking charge is particularised in the bench charge sheet as follows:
“That between the 7th day of October 2014 and the 14th day of May 2015 at Clifton Beach in the State of Queensland one Mark Francis Porter unlawfully stalked [the complainant].”
- [7]The offence of unlawful stalking is prescribed by s 539E with allied provisions in chapter 33A of the Criminal Code 1899 (Qld), including the definition of unlawful stalking in s 359B.
- [8]In this case, the prosecution did not rely upon any aggravating circumstances, or any actual violence. Relevantly, the prosecution was required to prove beyond reasonable doubt that:
- The defendant has engaged in conduct that was intentionally directed at the complainant;
- The conduct is engaged in on any one occasion if the conduct was protracted or on more than one occasion;
- The conduct consisted of one or more acts of the following, or similar, type:
- (a)Contacting a person in any way, including for example, by telephone, mail, fax, e-mail or through the use of any technology: s 359B(ii)
- (b)Loitering near, watching, approaching or entering a place where a person lives, works or visits: s 359B(iii)
- (c)An intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence: s 359B(ii)
- The conduct would cause the complainant apprehension or fear, reasonably arising in all the circumstances, of violence; to, or against property of, the complainant or another person,
or
causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.
- [9]Each party adduced evidence and addressed the court during the two day trial from 11 May 2016. I’ve had the advantage reading of the transcript of the proceeding.
- [10]The magistrate delivered his decision on 7 June 2016 and ordered that:
- For the carriage service charge, the appellant was fined $500 to be paid within six months. Should he default in payment, the debt would be referred to the State Penalties Enforcement Registry and the appellant serve 10 days imprisonment.
- For the offence of unlawful stalking, the appellant was sentenced to four months imprisonment, wholly suspended for a period of 18 months.
- The appellant was prohibited from directly or indirectly, personally or otherwise, having or attempting to have any contact including by telephone or otherwise with the complainant or his wife from entering, or loitering near, a place where the complainant lives or works.
- The restraining order would, unless varied or revoked sooner, continue up to and including 6 June 2021.
Grounds of Appeal
- [11]The appellant appeals against the conviction and sentence for the stalking charge on the following grounds pleaded in the Notice of Appeal:
“Magistrate was biased towards me and said things which went against direct evidence of my innocense (sic) in the stalking charge. I am not appealing the conviction of using a carriage service. But the stalking charge I am innocent of and got a severe sentence for basically using Saxon Street to go to and from Coles supermarkets and shops. A huge injustice has been perpetrated upon my innocence.”
- [12]Essentially, the appellant appeals against the conviction of unlawful stalking on the grounds of bias and that the decision was unreasonable and unsupported by the evidence. He also appeals against sentence on the ground that it is manifestly excessive.
Mode of Appeal
- [13]Pursuant to section 223 of the Justices Act 1886, an appeal under section 222 is by way of rehearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special circumstances with leave. The appeal is not a new trial to consider as if the arguments advanced are presented for the first time. It is a review of the record of the proceedings below, rather than a completely fresh hearing.[2]
- [14]This court is required to make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.[3]
- [15]Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.[4]
Ground 1 – Bias
- [16]By the words, “magistrate was biased towards me”, I understand the appellant to mean that he perceived that the magistrate was so affected by bias that he found against the appellant. The respondent submits that no perceived or actual bias can be detected in the hearing or in the magistrate’s decision.
- [17]Bias is ordinarily a question of actual or apprehended bias as a precursor to disqualification of the judicial officer. The test for determining whether a judicial officer should have disqualified himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.[5]
- [18]It is not clear whether the appellant is relying upon bias in this sense, or whether he is simply complaining about his treatment and the ultimate adverse outcome (which is relevant to the next ground of appeal).
- [19]It is often difficult for judicial officers to ensure the integrity of proceedings which involve a litigant appearing in person. This is all the more challenging when ignorance of procedural matters is overlayed with emotional reaction. The High Court in Neil v Nott, held that:[6]
“A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obstructed by their own advocacy”.
- [20]In these circumstances, the lack of legal knowledge is undoubtedly a misfortune for any lay litigant appearing in person, but it should not be seen as a privilege.[7]
- [21]I have considered the transcript of the hearing, the evidence adduced and the magistrate’s decision. During the course of the hearing, the magistrate often asked the appellant to refrain from interrupting, making side comments, and speaking over him, the prosecutor and the witnesses. His Honour informed the appellant at the outset that he could be found to be in contempt and punished accordingly. This course was both fair and proper in the circumstances. It seems to me that the magistrate was remarkably patient and cognisant of the appellant’s unrepresented state. He made appropriate allowances in the conduct of the hearing and afforded the appellant procedural fairness.
- [22]I cannot find any basis or reasonable justification for the appellant’s assertions of bias, and I reject them. It seems to me that this ground of appeal based on judicial bias is misconceived and must fail.
Ground 2 – Verdict unsupported by the evidence
- [23]The appellant asserts that his conduct (other than the phone calls) were not intentionally directed at the complainant. He argues that the magistrate made findings against his direct evidence proving his innocence, and the verdict is generally unreasonable and not supported by the evidence.
- [24]His Honour accepted that that there was no evidence of any direct threats of violence by the appellant to the complainant or his wife. However, he considered that the circumstances for the stalking charge included the background to the relationship between the complainant and the appellant, and the circumstances of the appellant’s presence in and around Clifton Beach, which was not in dispute.
- [25]In his decision, the magistrate said:
“The conduct said by the prosecution to be directed at the [complainant] is this: the [appellant] coming to live in Clifton Beach in close proximity to [the complainant’s] residence, coming to his front door twice uninvited, making 600 plus phone calls to [the complainant], the majority of those during the period of the stalking, being present outside [the complainant’s] house in the following circumstances: that is, being across the road at a new building site, looking in [the complainant’s] house, walking past the house on Saxon Street, being present inside the boundary of the [complainant’s] property in an area described as a garden in a mounded area.[8]
… My assessment of [the complainant and his wife], is that they are truthful witnesses. Their evidence, where it conflicts with the [appellant’s], is completely plausible and consistent, and I believe that the [appellant] is in denial about his behaviour and his judgment is clouded by his obsession with his exclusion from the Adelaide group. … it is relevant for that assessment that the [appellant] conveniently admits behaviour that could be regarded as normal for a resident, but denies the behaviour of being in their garden as that could not be excused as normal behaviour for a resident.”[9]
- [26]The magistrate obviously accepted as more credible the evidence of the complainant and his wife over the appellant, and made his findings accordingly. The appellant’s appeal seeks to challenge those findings based on His Honour’s assessment of the witnesses.
Challenge to fact finding based on witnesses’ credit
- [27]
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
- [28]
“[28] … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (References omitted.)
- [29]This is not an exhaustive formula. The Court went on to recognise that an appellate court might interfere even though the facts fall short of being “incontrovertible”, where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences”. Gleeson CJ, Gummow J and Kirby J said:
“[29] … In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.
[30] It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.” (References omitted.)
- [30]With these principals in mind, this court is required to conduct a real review of the evidence. This necessitates my independent examination of the evidence, including credit of witnesses subject to what I’ve said above,[13]to make my own assessment of both the sufficiency and quality of the evidence.[14]The task involves weighing conflicting evidence and drawing inferences and conclusions. This ought be done having regard to the elements of the offence (which I deal with in a more logical order below).
- [31]The verdict may be disturbed if the appellant shows that the magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.[15]
Stalking Conduct
- [32]The prosecution relied upon the appellant’s conduct consisting of:
- (a)contacting the complainant and his wife by telephone;
- (b)loitering near, watching, approaching or entering a place where the complainant lives; and
- (c)an intimidating, harassing or threatening act against the complainant.
- [33]It was uncontested that during the offending period from 7 October 2014 to 23 August 2015, the complainant lived with his wife in Clifton Beach (a suburb of Cairns) and had done so for about 25 years.[16]
- [34]The appellant and the complainant were part of a spiritual meditation group, Sahaja Yoga Meditation. The complainant was involved in that group for over 30 years[17]and in September 2010 took up the position of Australian coordinator. The appellant was part of the South Australian Chapter of Sahaja Yoga.
- [35]In his role as national coordinator, the complainant was aware of a dispute between the appellant and other members of the South Australian chapter. The appellant was excluded from the chapter. The complainant initially had telephone contact with the appellant about the dispute. The appellant implored the complainant to override the South Australian group’s decision and permit the appellant to rejoin.[18]The complainant told the appellant that the chapter’s position was firm and that there was nothing further to discuss.[19]
- [36]The complainant did not meet the appellant in person until some time in 2013 after the appellant relocated from South Australia to Clifton Beach, coincidentally the same suburb occupied by the complainant.
- [37]In 2013, the appellant attended at the residence of the complainant. But his wife also testified that the appellant came to the door for the first time “probably between 2010 and 2012” and spoke to the complainant.[27]It is not known how the appellant obtained the complainant’s address. Strangely, he initially introduced himself using a different name, but later admitted his true identity.[20]The appellant again insisted on being allowed back into the group. The complainant reiterated that there was nothing further to discuss and asked the appellant to leave. The complainant said that on the second occasion that the appellant attended the house, he told the appellant that he was not welcome at the house and that if he did not leave the police would be called.[21]The complainant testified that the appellant attended the residence on a number of other occasions, including at times coming to the door but was not clear on the date, wavering between 2013 or 2014.
- [38]The appellant conceded that he attended at the complainant’s house twice. On the first occasion, he said, “there was no animosity”,[28]and on the second occasion “[the complainant] said look, I don’t want you coming around. If you’re going to come around, I’m going to call the police. So I didn’t come around after that.”[29]This was generally consisted with the complainant’s evidence and seems to have occurred well before the offending period.
- [39]The prosecution relied upon a serious of subsequent telephone calls as part of the offending conduct.
- [40]The Telstra records show a multiplicity of telephone calls before and during the offending period. The number and source of the calls confirmed by Telstra records and traced to the appellant. In total, there were in excess of 630 phone calls within about 10 months from 7 October 2014 to 23 August 2015.[22]
- [41]The complainant recalled that the calls began “around 2010. But then the bulk calls …. 20 or 30 a day … was a bit later. That was I think, probably around 2013, around there they began”.[23]Similarly, the complainant’s wife recalled them commencing “in about 2010” and “by the time we went to report to the police that had been going on for five years.” The complainant’s wife described that there were more and more phone calls from the appellant, despite having asked him to stop.[24]The complainant testified that:
“The frequency was sometimes around 20 calls a day, and even more than that. And they were received on my mobile phone, and also on our home phone. Usually at the same time, or one directly after the other. And so what would happen is, that the phone would ring, and if we picked it up, or whatever, he would put – the phone would be turned off, then it would ring again, and again, and again. And this happened almost every day for a very, very long period.”[25]
- [42]At some stage, Telstra sent a warning letter to the appellant about the volume and frequency of the calls. The appellant later confirmed, in his recorded police interview, that he had received that warning letter. It was after this time that the complainant recalled reporting the mater to police saying: “I think it was August 2014, from memory.”[26]In contrast, the complainant’s wife testified that “We reported the matter to police in 2015.”
- [43]The prosecution also relied upon conduct transcending the initial visits and the phone calls as constituting loitering near, watching, approaching or entering a place where the complainant lived, and thereby intimidated, harassed or threatened the complainant. Apart from the two occasions of going to the complainant’s front door, the appellant denied any other entry into the complainant’s property or garden.
- [44]The complainant recalled one occasion as follows:
“[O]n one occasion, [the appellant] was standing in our garden in amongst the plants, actually taking photos of us. And actually, he rang us at the same time he was standing there, rang the phone at home. And there were numerous other occasions where he would be across the road, or just generally outside our home, and this was very disconcerting for us.”[30]
- [45]The complainant did not identify the time of these alleged actions.
- [46]His wife said that “from that time, [the appellant] started telephoning constantly and walking outside our house and standing in our garden.”[31] She said that she had seen the appellant standing on their property in the garden “at least a dozen” occassions.[32]She described the conduct as follows:[33]
“Sometimes the phone would ring and then I’d realise that I could see him in the bushes from our kitchen. Where I answer the phone, I could see him. So he could obviously ring from there and see us walking around the house to pick up the phone. … On our property, yes, but slightly shielded by some bushes. … we have a mound at the front that’s just inside … it’s not on our property. Because, at the front of the house, we have room where you can park cars. So it’s not a standard nature strip. It’s bigger than that. … So where the normal front fence line goes on other properties, our mound is inside that. So where he was standing was on our property. … It’s a raised garden bed with trees on it and … he would stand there, you could easily see him from the house, but it was inside our property.”
- [47]She later added that a security camera was installed in a tree in the front garden “so that we could try and have more evidence of his activity …but we were never able, at that point, to catch him in that part of the garden after we put the camera in.” She said: “We did see him walking along the street on that camera, but not on our property”.[34]Again, the absence of any temporal context leaves this evidence wanting. It is not clear when the complainant’s wife made these observations or even when the camera was installed. Even then, the description of video of the appellant’s conduct seems innocuous.
- [48]As to the appellant walking down the street, the complainant’s wife described that she saw the appellant “walking along [the street], backwards and forwards, many times… or just standing at the front”[35]and “often he was looking into the [complainant’s] house”.[36]Similarly, the complainant described that he saw the appellant “wandering along backwards and forwards in front of our home.”[37]He said that:
“There’s not an issue and there wasn’t an issue in [the appellant] walking along the street, but, when he actually went to the trouble of stepping onto our property and getting into our garden and looking through the garden into our home, that’s when it became an issue. We or I would not have any problem with him walking up and down the street.”[38]
- [49]In addition, the complainant took photographs of the appellant in about December 2014 when the he was at house construction site adjacent to the complainant’s house.[39]The complainant gave vague and general evidence about the appellant’s behaviour, including:
“[The appellant] was sort of wandering around it, but still looking at our house. And when he saw me in my office through the window, he went and hid in behind one of the walls. But there’s these photos show him actually looking across and smiling directly at me.”[40]
- [50]Later in cross-examination the complainant added that:
“[the appellant] spent quite a lot of time in that area… [the appellant] was hanging around the construction site, but he was looking around the corner, looking at our home, as he quite often did”[41]…
“I have seen the appellant myself on numerous occasions standing on our side of the road, in our garden, in amongst shrubs, looking”.[42]
“If you were just looking at the house, that would be fine, but you were using the house as cover to look around and look at us.”[43]
- [51]At one stage of the hearing, the magistrate rephrased a question put by the appellant to the male complainant, asking: “Since [the appellant] has been talked to by the police and been charged (on 23 August 2015), what do you say about the proposition that you’ve had no more phone calls from him and he hasn’t walked down Saxon Street?” To this, the complainant answered: “I haven’t seen him walking down the street after that occasion, but I believe there were further phone calls.”[44]This is consistent with the evidence of the complainant’s wife that, “after we reported the matter to the police in 2015, it didn’t happen after that”.[45]
- [52]I have looked at the photographs. None of them unequivocally depict the descriptions given by the complainant and his wife and they appear rather innocuous. Two of the photographs simply show the appellant’s upper body at a construction site. The other two photographs capture another occasion, but one is a cropped or zoomed-in version of the other. The appellant is depicted standing near the site of a house under construction across the street. Both show the appellant simply looking in the direction of his interest or travel, perhaps co-incidental to the complainant’s house.
- [53]The appellant readily conceded that he walked down the street once a day and some days twice a day,[46]and also stopped at the construction site, but not to stalk the complainant. Instead, he testified that he merely used the street as the most convenient access to shops and along the way he fulfilled his interest in the house construction.[47]
Discussion
- [54]The prosecution relied upon the evidence of the complainant and his wife to prove the appellant’s conduct of making 630 telephone calls, being in the complainant’s property and garden, walking along the residential street, and stopping under the guise of looking at the house construction on the same street.
- [55]Of course, the appellant denied any of his conduct was unlawful stalking.
- [56]The magistrate correctly identified that “the only relevant conduct that [the appellant] disputes is being in [the complainant’s] garden,”[48]and the appellant was “present inside the boundary of the [complainant’s] property in an area described as a garden in a mounded area”[49]at the relevant time.
- [57]In my respectful opinion, the evidence did not warrant such a finding due to a fatal deficiency in the prosecution case. It was critical that the prosecution prove not only the nature and scope of the conduct but also that the conduct occurred within the period averred in the bench charge sheet. Neither the complainant nor his wife gave cogent evidence about the timing of the critical conduct, or provided any other temporal context to enable the court to discern the timing of critical conduct. Instead, their evidence was equivocal, vague and doubtful. The end result is that the prosecution failed to prove that the appellant was onproperty or in the gardenbetween 7 October 2014 and 14 May 2015 being the relevant period of the alleged offence.
- [58]Otherwise, there was ample evidence of the appellant’s other offending conduct between 7 October 2014 and 14 May 2015, which consisted of, contacting the complainant and his wife by telephone 630 times; loitering near and watching the complaint, whilst passing along the street and looking at the house under construction, and thereby intimidating, harassing or threatening the complainant. Of course, the nature and reduced scope of this conduct makes the offending of a lower order than that found by the magistrate.
One or more occasions
- [59]Clearly enough, the appellant engaged in the conduct on multiple occasions. It is immaterial that the conduct on each of the occasions consisted of different acts.[50]
Intentionally directed
- [60]The next issue is whether the appellant engaged in offending conduct that was intentionally directed at the complainant.
- [61]During both the trial and the appeal, the appellant emphasised the importance of seeing his conduct through the prism of Sahaja Yoga Meditation. He relied upon the concept of oneness and the spiritual relationship between him and the complainant. The magistrate addressed this saying “even if [the appellant] thought it was acceptable because of this concept of oneness, he was acting recklessly and his belief was unreasonable.”[51]I respectfully agree. The effect of the provisions is simple – the appellant’s intention to pursue the complainant’s support and wisdom, and his own perception of oneness or spiritual kinship were irrelevant to the task.
- [62]The appellant also asserted that he merely used the complainant’s residential street as the most convenient access to shops and along the way he fulfilled his interest in the house construction. He testified that the street on which the complainants resided was only “one of two roads” linking his residence to the local shops. He used it regularly on foot for normal purposes, such as to walk to Coles to obtain groceries, to obtain food or beverage during the day, to access the post office or for exercise. As to the house construction site, the appellant said:
“… the conclusion that I’ve come up here to bother [the male complainant], that I’m making friends with people across the road from him to be – this is so far from the truth. That house was being constructed. I had an interest. I’ve built a couple houses in Adelaide. … I stopped about half a dozen times, and that’s when the neighbour was there and we started talking.”[52]
- [63]The appellant’s intent was the central issue, and it was necessary for the court to examine the evidence and ask whether the requisite intent was proved beyond reasonable. The magistrate addressed the argument saying:
“Now, my assessment is this: even though that behaviour has the hallmarks of normality, in the context of the [appellant’s] obsession with his exclusion from the Adelaide group, [the complainant’s] position in the group, … the other admitted behaviour, being the 600 phone calls and the uninvited visits and the presence in the garden of the [complainants] residence, that all leads to the conclusion that what the [appellant] conveniently suggests is innocent, was actually him reinforcing his presence in the neighbourhood to [the complainant], because of [the complainant’s] position of influence in the group, that is, it was all behaviour directed at [the complainant].”
- [64]The magistrate’s findings of fact based on inference ought be taken as correct unless and until the contrary is demonstrated. In Warren v Coombes,[53] the majority of the High Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”.
- [65]It is apparent from the reasons that His Honour drew upon conduct of the appellant that occurred outside the offending period. That is, the appellant’s uninvited visits and the presence in the garden. However, it seems to me that that evidence, having been accepted as true, may be used as a proved pattern of conduct from which the court could draw inferences about the appellant’s intent, and also rebut the defence proffered.
- [66]When considering intent, the legislature deemed it immaterial whether stalker intends that the complainant be aware that the conduct was directed at the complainant,[54]or if the appellant has a mistaken belief about the identity of the person at whom the conduct is initially directed.[55]It is also immaterial whether the conduct directed at the complainant consisted of conduct carried out in relation to another person or the property of another person.[56]Further, in terms of s 359D, in my view the appellant’s conduct could not be characterised as reasonable conduct engaged in to obtain or give information that he had a legitimate interest in obtaining or giving as a former member of Sahaja Yoga Meditation or as a house construction enthusiast.
- [67]On the contrary, the appellant’s behaviour was a continuation of a proved pattern of conduct coincidentaland proximate to the complainant, his wife, and their property. In my view, it was open on the proved facts for the magistrate to draw a logical and rational connection between those facts and the conclusion that the conduct was intentionally directed at the complainant.
- [68]Therefore, I am unable to discern any error from the facts that would justify disturbing the magistrate’s findings on this issue.
Reasonable apprehension of fear of violence or causes detriment
- [69]The onus was on the prosecution to prove that the stalking conduct:
- would cause the complainant an apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or
- causes detriment, reasonably arising in all the circumstances, to the complainant or another person.
- [70]Again, the primary focus must be on the offending conduct between 7 October 2014 and 14 May 2015, which consisted of the appellant contacting the complainants by telephone 630 times; loitering near and watching the complainant, whilst passing along the street and looking at the house under construction; and thereby intimidating, harassing or threatening the complainant and his wife.
- [71]Notably, the definition of “circumstances” is cast in the following very wide terms:
circumstances means the following circumstances—
- (a)the alleged stalker’s circumstances;
- (b)the circumstances of the stalked person known, foreseen or reasonably foreseeable by the alleged stalker;
- (c)the circumstances surrounding the unlawful stalking;
- (d)any other relevant circumstances.
- [72]“Detriment” in inclusively defined as follows:
detriment includes the following—
- (a)apprehension or fear of violence to, or against property of, the stalked person or another person;
- (b)serious mental, psychological or emotional harm;
- (c)prevention or hindrance from doing an act a person is lawfully entitled to do;
- (d)compulsion to do an act a person is lawfully entitled to abstain from doing.
- [73]The term “violence” excludes any force or impact within the limits of what is acceptable as incidental to social interaction or to life in the community. The term is defined as:
violence—
- (a)does not include any force or impact within the limits of what is acceptable as incidental to social interaction or to life in the community; and
- (b)against a person includes an act depriving a person of liberty; and
- (c)against property includes an act of damaging, destroying, removing, using or interfering with the property.
- [74]In the Court of Appeal decision of R v Conde,[57]P Lyons J at [45] said that it is “sufficiently clear that the offence is intended to include a course of conduct consisting of more than one of the acts identified in s 359B(c), even where it is not established that each act, taken in isolation, would cause or caused the relevant fear, apprehension or detriment.”
- [75]However, s 359B(d) imposes an objective test grounded in the words, “reasonably arising in all the circumstances.” Therefore, the court must determine whether the conduct would cause apprehended fear of violence or cause detriment reasonably arising in all the circumstances. When applying this test, it is permissible for the court to consider, as part of all the circumstances, the other proved conduct of the appellant making earlier telephone calls, visiting the house and being onthe complainant’s property or garden. It must also be borne in mind that it is immaterial whether the appellant intended to cause the apprehension or fear, or the detriment in the complainant.[58]It is also immaterial whether the apprehended or feared violence was actually caused.[59]
- [76]When considering this issue, His Honour said:
I’m satisfied beyond reasonable doubt that the conduct of moving to Clifton Beach, visiting twice uninvited to the front door, making the bulk of the 600 plus phone calls to [the complainant] is (sic) six months, moving up and down Saxon Street, being across the road at the building site and being in their garden, is all conduct intentionally directed at [the complainant]. This behaviour was all unwanted by [the male complainant]. There is no evidence that he, in some way, understood that the [appellant] was just maintaining contact as a fellow group member. The level of contact, in particular the 600 plus phone calls, makes that simply implausible and unreasonable. To say that he thought that 600 plus unwanted phone calls would not be causing any distress to [the complainant], is to say the least, reckless and is unreasonable. I’m satisfied beyond a reasonable doubt that [the complainant] was caused a detriment of serious emotional harm by this conduct of the [appellant] towards him.”[60]
- [77]Whilst, these matters may form part of all the circumstance, the evidence of the offending conduct was so general and vague that it is difficult to discern any prospect of violence, which could give rise to any apprehension or fear on the part of the complainants.
- [78]For example, as to the telephone calls, the complainant generally described the, as: “some of the messages were – we perceived as being threatening, and they were quite derogatory of ourselves, and other people, and of the group itself, as well”.[62]The evidence was very general and vague.
- [79]The complainant variously described the effect of the appellant’s conduct, which was accepted by the magistrate, including:
“Over the period, it has had an increasing impact, in that we just really felt threatened.”[63]
“[T]he whole campaign, I guess, on me, it really wore us down. … I just felt traumatised and really helpless, and it seemed that there was nothing that I could do about the situation. … And it’s actually the worst experience I’ve ever had in my life, and that was mainly due to the fact that there seemed to be no way to resolve it, or get it to end.”[64]
“[T]his really impacts you to the point where you just feel completely hopeless and helpless, and, you know, it was just a really terrible experience”.[65]
- [80]When asked how she felt in the period, the complainant’s wife said:[66]
“[I]t made me feel threatened really because I didn’t know what this man was capable of. He … obviously was watching us, he knew our actions, he knew when we were home, when we weren’t home and I was feeling unsafe and a bit threatened and not knowing what could happen. I was causing us a lot of anxiety and interfering with my sleep at that time to have someone invading our privacy on a constant basis. … I felt quite helpless about what we could do about this, how we could stop it or bring it to an end so that we could have some sort of normal life.”
- [81]In my view, albeit lower range offending, there was sufficient proof for the magistrate to find beyond reasonable doubt that the appellant’s conduct would and did cause apprehended fear of violence, or did cause detriment reasonably arising in all the circumstances.
- [82]For these reasons, I conclude that it was open for the magistrate to reject the appellant’s evidence and make findings based on his assessment of the witnesses’ credit. Although, I have decided that proof of some allegations fell short of the requisite standard, I am satisfied that the verdict is generally reasonable and supported by the other evidence accepted by the magistrate. Having said that, I think it reflects my impression that the nature and seriousness of the offending was of a lower order for this type of offending.
- [83]I therefore dismiss the appeal against conviction.
Ground 3: Sentence Manifestly Excessive
- [84]The appellant also contends that the sentence was manifestly excessive. On the contrary, the respondent argued that there was no identifiable error at law to warrant intervention in the sentence imposed.
- [85]For the offence of unlawful stalking, the appellant was sentenced to four months’ imprisonment, wholly suspended for a period of 18 months. The magistrate further imposed a restraining order prohibiting the appellant from contacting the complainant and his wife by telephone or otherwise and from entering or loitering near their residence or place of work. The order would remain in force until and including 6 June 2021.
- [86]This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.[67]
- [87]
"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
- [88]As discussed above, in in my respectful view, the trial magistrate erred in exercising the sentencing discretion by mistaking the nature and seriousness of the offending by conflating all the alleged conduct beyond the period of offending. Having identified a specific error, the sentence must be set aside and this court must exercise the sentencing discretion afresh, unless in that separate and independent exercise it concludes that no different sentence should be passed.
- [89]Section 359E(2) provides that the maximum penalty for the offence of unlawful stalking is five years’ imprisonment.
- [90]Section 359F provides the power for the presiding magistrate to make a restraining order, however the Court of Appeal in R v Johnston[69]confirmed that the section makes it clear that a restraining order is not a sentence that can be the subject of a right to apply for leave to appeal under s 668(1)(c) of the Criminal Code 1899 (Qld), that is, in the court’s criminal jurisdiction. The appellant has not sought leave to appeal under s 118 of the District Court of Queensland Act 1967 for the restraining order, but it would make no different in the result.
- [91]The appellant has no criminal history. He has fully cooperated with the police and prosecution, including by participating in a two hour recorded interview with police. At an early stage he did not dispute his conduct of making 630 telephone calls, walking along the residential street and stopping under the guise of looking at the house construction. However, he disputed that his conduct constituted an offence.
- [92]At the sentence the prosecutor provided the magistrate with two Court of Appeal cases, R v Hooper; ex parte Commonwealth Director of Public Prosecutions[2008] QCA 308 and R v Walton[2006] QCA 522.
- [93]Hooper concerned a carriage service offence and is not relevant to this appeal.
- [94]Walton concerned a 56 year old applicant who had made multiple telephone calls over the course of three distinct time periods directed at her former partner. Count 1 concerned conduct of making over 330 abusive and obscene telephone calls over six weeks, with up to 50 calls on a single day. Count 2 concerned more phone calls and messages over a period of just over 14 weeks, and alto targeted a 15 year old child. For count 3, after some abatement, the applicant phoned the complainant up to 23 times on one day and 39 times on another. The applicant had no criminal history, and cooperated with the authorities and entered an early plea. There was no evidence of threats of violence or surveillance. At the time of Walton, as now, the Penalties and Sentences Act 1992 (as amended) included the principles that a sentence of imprisonment should only be imposed as a last resort; and that a sentence allowing the offender to stay in the community is preferable.
- [95]The appellant received a sentence of six months’ imprisonment, wholly suspended with an operational period of two years. A restraining order was also made for a period of five years.
- [96]Keane JA remarked about the gravity of offending of this type even though it did not involve threats or surveillance, and notwithstanding an unfortunate matrimonial situation or period good character:
[6] It is important to recognise the gravity of the applicant's offending even though it did not involvethreats of violence or surveillance of the complainant by the applicant. Offending of this kind is inherently likely to escalate; and it is significant in this regard that the misconduct charge in count 3 ceased only when the complainant had involved the police. Equally important is the risk that a victim of this kind of harassment will strike back. Personal violence may occur and may engulf persons other than the immediate complainant and antagonist. Finally, one should not seek to trivialise the profound misery which this sort of misconduct can cause to the victim.
- [97]The Court was concerned about the appellant’s level of persistence demonstrated and the need for personal deterrence. Williams JA said at [2]-[3]:
“[2] … 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.
[3] For all of those reasons a deterrent sentence is called for in cases of this type …”
- [98]There are few distinguishing features between Walton and this appeal. Like Walton, the appellant has no criminal history and his conduct involved excessive telephone calls including messages of a derogatory nature. However, perhaps more seriously, the appellant’s offending conduct was persistent and a continuation of a pattern of behaviour which extended over a considerable period. The conduct also involved loitering on the residential street and surreptitiously watching the complainants, and thereby continued to intimidate and harass.
- [99]The purpose and guidelines of sentences are those in s 9 the Penalties and Sentences Act 1992 (Qld). A sentence must be appropriate punishment in the circumstances, facilitate avenues of rehabilitation, deter others from committing a similar offence, make it clear that the community denounces the conduct in the offence, and protect the community.
- [100]Not withstanding my findings of the reduced nature, scope and seriousness of the offending conduct, in my view the sentence imposed was just and appropriate in the circumstances of this case. It also reflects the gravity of the conduct and the factors of personal and general deterrence.
Order
- [101]For these reasons, I dismiss the appeal and confirm the sentence imposed by the Magistrates Court on 7 June 2016.
Judge D. P. Morzone QC
Footnotes
[1] T1-2/39.
[2] White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed).
[3] White v Commissioner of Police [2014] QCA 121 at [4] per Morrison JA (Muir JA & Atkinson J agreed).
[4] White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed).
[5] Johnson v Johnson (2000) 201 CLR 488 at [11].
[6] Neil v Nott (1994) 121 ALR 148 at [150] per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
[7] Gallo v Dawson (1990) 93 ALR 479 at [481] per McHugh J.
[8] Decision T2/23-30.
[9] Decision T4/30-46.
[10] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
[11] Fox v Percy (2003) 214 CLR 118 at [26]-[30].
[12] Including Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
[13] Chidiac v R (1991) 171 CLR 432 at 443-4 per Mason CJ, at 452-3 per Dawson J, at 459 per Gaudron J; Knight v R (1992) 175 CLR 495 at 503 per Mason CJ, Dawson and Toohey JJ.
[14] Morris v R (1987) 163 CLR 454 at 463-4, 466 per Mason CJ, at 473 per Deane, Toohey and Gaudron JJ, at 477-9 per Dawson J.
[15] Whitehorn v R (1983) 152 CLR 657 at 687.
[16] T1-11/14.
[17] T1-11/41.
[18] T1-13/21.
[19] T1-13/42.
[20] T1-14/22.
[21] T1-51/31-33; T1-52/13-17.
[22] T1-67/34,41.
[23] T1-21/20.
[24] T1-51/36-38.
[25] T1-20/20-27.
[26] T1-21/20
[27] T1-55/5-7.
[28] T2-4/28.
[29] T2-4/31-33.
[30] T1-17/13-18.
[31] T1-55/15-16.
[32] T1-56/9.
[33] T1-55/19-22.
[34] T1-56/37.
[35] T1-56/11-13.
[36] T1-56/28-29.
[37] T1-17/12.
[38] T1-38/18-22.
[39] T1-19/26.
[40] T1-19/6-12.
[41] T1-19/6-12.
[42] T1-34/41-44.
[43] T1-38/35-37.
[44] T1-42/45-46.
[45] T1-57/23-24.
[46] T1-38/1-6.
[47] T2-4/36-41.
[48] Decision T3.
[49] Decision T2/23-30.
[50] Section 359C(3).
[51] Decision T6/19-21.
[52] T2-4/36-41.
[53] Warren v Coombes (1979) 142 CLR 531 at 551, affirmed in Fox v Percy (2003) 214 CLR 118 at 127 [25] per Gleeson CJ, Gummow J and Kirby J.
[54] Section 359C(1)(a).
[55] Section 359C(1)(b).
[56] Section 359C(2).
[57] R v Conde [2015] QCA 63.
[58] Section 359C(4).
[59] Section 359C(5).
[60] Decision T5/14-35.
[62] T1-15/42.
[63] T1-21/23-24.
[64] T1-22/10-18.
[65] T1-22/27-30.
[66] T1-57/9-17.
[67] House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519.
[68] (1936) 55 CLR 499 at 504 and 505.
[69] R v Johnston [2008] QCA 291.