Gillott v Queensland Police Service
[2017] QDC 231
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Gillott v Queensland Police Service[2017] QDC 231
- Add to List
Gillott v Queensland Police Service[2017] QDC 231
Gillott v Queensland Police Service[2017] QDC 231
DISTRICT COURT OF QUEENSLAND
CITATION: | Gillott v Queensland Police Service [2017] QDC 231 |
PARTIES: | BRENDAN PAUL GILLOTT (appellant) v QUEENSLAND POLICE SERVICE |
FILE NO/S: | 4741 of 2016 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 12 September 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 August 2017 |
JUDGE: | Richards DCJ |
ORDER: | Appeal dismissed. |
CATCHWORDS: | CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – GENERALLY – where the offence was stalking – where there were multiple complainants – whether a conviction should be recorded Criminal Code 1899, s 359F R v Walton [2006] QCA 522 |
COUNSEL: | Mr B J Power for the appellant Ms S L Lio-Willi for the ODPP |
SOLICITORS: | Fisher Dore, Lawyers for the appellant |
- [1]The appellant was sentenced on 11 November 2016 to three months’ imprisonment wholly suspended for two years in relation to four charges of stalking involving four separate complainants. He was also ordered to pay $300 compensation to each complainant and a restraining order was made pursuant to s 359F of the Criminal Code 1899 in relation to the four complainants for a period of two years.
- [2]On that same day he was also given a 6 month good behaviour bond in relation to possession of utensils and possession of dangerous drugs and a fine of $250 in relation to possession of tainted property. No convictions were recorded.
- [3]He has appealed against the sentences imposed for the stalking offences.
- [4]The facts of the stalking are as follows:
Complainant 1 – 21 March 2016 to 25 August 2016 – 52 year old female who was the building manager of the appellant’s former unit. There had been conflict between them at the time of the tenancy. In May 2015 the appellant made two obscene phone calls to her. On 21 March 2016 he made another obscene call and she reported it to the police. Two more obscene phone calls followed on 6 April and 15 April 2016.
Complainant 2 was a 54 year old female who was a friend of his mother and he had known her as a child but had not seen her for eight years. He started calling her in September 2015 making sexual suggestions. This continued until March 2016. The calls occurred every couple of weeks and usually two calls in a row.
Complainant 3 was a 23 year old female who was a childhood friend. She lived in Charters Towers. In February 2016 she commenced receiving obscene phone calls. Three to four days later another call was received. Calls continued for two to three weeks once or twice a week. Until 19 August 2016 there was a total of 22 calls. The obscenities extended to saying he wanted to commit sexual acts against her similar to what he did to her mother (complainant number 2).
Complainant 4 was the 23 year female cousin of the appellant. He called her at work on 22 February 2016 and made an obscene phone call. He made 10 phone calls in total until June 2016.
- [5]He was 25 years old at the time of the offences. He had no criminal history, he entered an early plea of guilty, he had a good work history and family support.
- [6]The appellant had voluntarily gone to see a psychologist and a report was tendered on his behalf. He has since gained employment and was highly regarded by his employer. He was unable to explain the motivation for making the phone calls but at the time was suffering from anxiety, depression and social withdrawal. He was extremely embarrassed and remorseful for his actions and he had some treatment to manage his symptoms. He is currently in continuing therapy to ensure no repeat of his actions.
- [7]The appellant appeals on two bases firstly that the sentence imposed was manifestly excessive and secondly that the magistrate erred in passing sentence in that she failed to impose a separate sentence for each stalking offence as required.
- [8]The second ground of appeal is taken on the basis of the comments made by the learned magistrate (at page 4 of the decision, line 28) “so for the four unlawful stalking charges you are convicted and sentenced to three months’ imprisonment and that is wholly suspended over your head for the next two years as the Criminal Code 1899 requires, and I agree, a further protection to the specific complainants in this episode.” The magistrate then went on to place a restraining order against the appellant in relation to each of the complainants and compensation of $300 for each of the complainants. Although the language did not specifically state on each of the charges the suspended sentence was imposed, it seems to be fairly clear that that was what was meant by the magistrate. She was clearly considering the cumulative effect of all of his conduct in relation to the four separate complaints.
- [9]The next question is whether the sentence of three months’ imprisonment wholly suspended for two years with a conviction recorded was excessive. Particularly, it was submitted, given his lack of criminal history, early plea of guilty, age, gainful employment, support from family employer and initiative to seek counselling.
- [10]The appellant maintains that the learned magistrate placed too much emphasis on the case of Walton[1] as a guide for sentencing the appellant. Walton received a sentence of six months imprisonment wholly suspended with an operational period of two years. A restraining order was made for five years. She was a mature woman who after the breakup of a long marriage began to stalk the complainant who was the new partner of her ex-husband. She was charged with three separate offences from 19 March 2004 to late August 2005. She made over 330 calls to the complainant with up to 50 calls on one single day. They were abusive and obscene phone calls. The complainant moved away to another town to get away from the harassment. Count 2 from 1 January 2005 to 12 April 2005 there were 33 calls between 2 and 4 January alone. Various other calls were made including threats to contact her 15 year old son and in fact she did try to contact that son. Count 3 occurred over a week. Again incessant phone calls 23 times on one day and 39 times on another. Her behaviour only ceased when police became involved. She had no prior history and entered an early plea. The matters of concern in that case was the sheer volume of telephone calls and the fact that she involved the 15 year old son. It reflected a significant level of harassment which caused great distress to the complainant. Considerations of general deterrence and community denunciation weighed heavily in that case. In Walton’s case Keane JA noted at paragraphs 6:
“It is important to recognise the gravity of the appellant’s offending even though it did not involve threats 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 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 a victim.”
- [11]The defence rely heavily on the psychological report which was tendered from a psychologist, Tracy Stanbury who indicated that he was remorseful for his actions, that he felt at the time emotionally overwhelmed and socially isolated. She noted he was not under the influence of any substances at the time of the calls but that he was under stress at the time and this may have been the way he distracted and regulated this stress. She said he now has more appropriate ways of managing stress should it arise again.
- [12]He is currently in employment. He is a valued employee and unlikely to lose his job as a result of this offending. It was submitted on his behalf that there was potential for him to travel overseas with his computer qualifications and for those reasons no conviction should be recorded and that community based orders were within range.
- [13]After hearing all submissions, the magistrate stood the matter down to examine comparable sentences and invited the defence to do the same. In giving her decision, she referred to Walton as a worse case but informative on matters of principle. The magistrate clearly stated that she took into account the psychological report but noted that there was no explanation for his behaviour and that there was no psychiatric or psychological condition which caused this behaviour. His behaviour was largely unexplained.
- [14]It is clear that Walton’s case was a more serious case however, this case involved four separate complainants who the appellant knew and he used that connection to harass them. He phoned a mother and a daughter and compared in a sexual way the mother and the daughter suggesting to the daughter that he had been involved sexually with the mother. The calls were not as persistent as many stalking cases but the multiplicity of the complainants gives rise to considerations of personal deterrence and in my view amounts to a serious circumstance of aggravation. Whilst the sentence is high in my view it is not outside the range and, given the number of complainants, it is appropriate that a conviction should be recorded in this case. The appeal is dismissed.
Footnotes
[1][2006] QCA 522.