WSJ v Commissioner of Police[2024] QDC 165

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal against sentence pursuant to section 222(2)(c) of the Justices Act 1886 (Qld) against the sentence imposed in the Magistrates Court at Hervey Bay on 19 March 2024 in respect of one charge of unlawful stalking.  The appellant pleaded guilty to the charge and was sentenced to 15 months imprisonment, to be served cumulatively on another sentence he was then serving, which totalled a period of 10 years, six months.  It was ordered that he would be eligible for parole from 29 June 2024.
2. [2]
   The appellant seeks leave to amend the grounds of appeal such that the sole ground of appeal is that the sentence imposed was excessive.  The respondent does not oppose that application.  Given that that is the only ground of appeal admissible under the legislation, such leave is granted.
3. [3]
   An appeal pursuant to section 222 is an appeal by way of rehearing on the evidence given in the proceeding before the Court below.  In this matter, both parties have sought leave to adduce fresh evidence.  There has been no opposition from either side in that regard, and leave was granted.  That also forms part of the evidence now before this Court. 
4. [4]
   Pursuant to section 225(1):

On the hearing of an appeal, a Judge may confirm, set aside, or vary the appealed order or make any other order in the matter the Judge considers just.

5. [5]
   To succeed on appeal, the appellant needs to show that the Magistrate made a legal, factual or discretionary error.  It is well recognised that identification of a specific error may be sufficient in the circumstances to enliven this Court’s discretion to sentence afresh, but it is also well recognised that in some circumstances it is not possible to identify the specific error in question, but nevertheless form the view that error occurred simply because the sentence imposed was demonstrably excessive in the circumstances.

Factual circumstances of offending

6. [6]
   So far as the circumstances of the offending are concerned, the appellant and the complainant commenced a casual sexual relationship in December of 2023.  The complainant ended that relationship on 20 January 2024.  After that, the appellant made four attempts to speak to the complainant.  On 24 January 2024, the appellant went to her address, telling her he wanted to talk to her, and asked to enter her house.  The complainant declined that request, and the appellant started yelling abuse through the door to the complainant and a friend who was present at the time.  He then jumped the side gate of the dwelling and entered the garden, before knocking on a rear screen door.  He was again denied access, and the complainant called police because she was fearful.  She stayed at a friend’s house that evening.  I note that at the time, the appellant lived next door to the complainant.  Two days later, the complainant found a poem had been left inside an envelope in her letterbox and she discerned immediately that it had been written by the appellant.
7. [7]
   About a month later, on 23 February 2024, the complainant heard a knock at her door.  It was the appellant.  He again said he wanted to talk to her, and she advised him to leave on multiple occasions.  He remained in the doorway for some time, flirting with her, before leaving.  Before leaving, he invited her to speak with him outside on the driveway, but she declined.  He knocked again a couple of minutes later.  When she told him to leave, he told her that she was disrespectful and a terrible person.  Later that same day, the complainant was walking her dog and she saw the appellant walking in her direction.  She started a video recording.  He approached her and continued to ask if he could speak with her.  She asked him to leave her again multiple times.  This interaction lasted for approximately five minutes.
8. [8]
   The appellant’s behaviour caused the complainant to feel anxious and fearful, as a consequence of these individual events and collectively.  It was later in the evening of that last occasion that the complainant attended the Hervey Bay Police Station to report the matter.  As is apparent from that brief recitation of facts, the unlawful stalking in this matter was constituted by, effectively, four separate incidents, one of which was the leaving of the poem, over the course of three days, but those three days falling within, approximately, a one month period of time.

Appellant’s antecedents

9. [9]
   So far as the appellant’s antecedents are concerned, he was 32 years of age at the time.  He has a lengthy criminal history.  It commenced in 2008.  He has previous convictions for offences of personal violence, including assault occasioning bodily harm, in 2008 and 2009, for which he was fined and received community service.  He was convicted in 2013 of assault occasioning bodily harm and was sentenced to four months imprisonment, fully suspended.  He breached that suspended sentence by further offending later that year and received a total period of 12 months imprisonment with an immediate parole release date for another charge of assault occasioning bodily harm, as well as charges of common assault and contravening a domestic violence order.
10. [10]
    Most significantly, in 2015, the appellant was sentenced to nine years imprisonment for the offence of rape and lesser concurrent sentences for offences of sexual assaults, assault occasioning bodily harm, deprivation of liberty, and enter a dwelling and commit an indictable offence.  In 2022, he received a head sentence of six months imprisonment, ordered to be served cumulatively, for an offence of assault occasioning bodily harm whilst armed and serious assault of a person over 60 and common assault.  The full-time expiry date of the appellant’s current sentence, excluding the matter that is being dealt with today, as I understand it, is the 11th of September 2024. 
11. [11]
    At the time of the commission of the offence that is the subject of this appeal, the appellant was on parole, and hence breached that parole order.  The consequence of that was that his parole was suspended, and he was taken back into custody approximately three weeks prior to being sentenced for the matter that is now before the Court.
12. [12]
    When dealing with his antecedents, I note also the additional evidence that has been produced.  It shows that the appellant had what could be described as a prejudicial upbringing.  He was witness to, and the subject of, domestic violence by his father.  He lived in a foster home from the age of five or six and a boys’ boarding home from age 10 or 11.  I note that he was diagnosed with testicular cancer in 2014 or 2015 and underwent surgery in 2015, and he has had extended periods of chemotherapy in the years following.  He suffers from chronic pain arising from that condition and alleges that his pain was poorly managed by Queensland Corrective Services.
13. [13]
    A parole report has also been placed before the Court now which notes that the appellant has been described in reports and assessments as antisocial, hostile and challenging and that his engagement with services and programs has been adjudged as superficial.  Although in more recent times his response to interventions on his behalf has improved. 

Appellant’s submissions

14. [14]
    The appellant submits that the sentenced imposed was excessive because of a combination of reasons, they being:

1. the offending conduct did not involve any violence or threats of violence nor did it involve property damage or threats of property damage;
2. he was not subject to a protection order at the time;
3. there was no circumstance of aggravation attached to the charge;
4. his criminal history, although poor, was for different type of offending conduct;
5. the offending conduct occurred on only four occasions on three separate days over a four week period:  in other words it was described as being “sporadic”;
6. one of the acts involved leaving – what I understand to be – a non-threatening poem in the complainant’s letterbox;
7. the other acts involved attempts by the appellant to speak to the complainant, I infer, about their ended relationship;
8. he cooperated with the administration of justice by entering a timely plea of guilty; and
9. the sentence of 15 months imprisonment was ordered to be served cumulatively upon the sentence that he was serving at the time of sentence.

15. [15]
    In support of his submissions the appellant has referred to a couple of cases by way of comparison:  R v Coutts [2016] QCA 206 and Tran v the Commissioner of Police [2023] QDC 217.  I will not go through the details of those cases for reasons which I will make clear in just a moment. 
16. [16]
    Ultimately, the appellant’s submission is that the learned Magistrate erred in her determination as to what the appropriate sentence should be and then added to that error by failing to appropriately mitigate the sentence when deciding that they should be served cumulatively and thus offended the principle of totality that is well recognised from Mill v The Queen [1988] 166 CLR 59.

Respondent’s submissions

17. [17]
    The respondent has provided written submissions indicating that the appeal was contested and identifying one particular case upon which reliance was made in support of that position.  That is the matter of R v SCM [2016] QCA 175.  However, during the course of submissions when discussing that particular case the learned Crown Prosecutor has reconsidered the respondent’s position and has withdrawn the opposition to the appeal and agreed that the sentence imposed below was excessive in the circumstances.  For that reason I do not need to go through a lot of the authorities on this point, although I should draw some attention to SCM for the purposes of this judgment.
18. [18]
    SCM was a matter where the appellant was convicted of one count of unlawful stalking with a circumstance of aggravation, that being that five of the acts constituting the unlawful stalking contravened a domestic violence order and that the offending itself constituted a domestic violence offence.  He was also sentenced at that time in relation to 20 summary offences.  They were comprised of:  four charges of contravening a domestic violence order; nine charges of fraud; one of stealing; one of wilful damage; one of unlawful use of a motor vehicle; one of driving an uninsured vehicle; one of driving an unregistered vehicle; one of breaching a bail condition and one of failing to appear in accordance with an undertaking. 
19. [19]
    At first instance he was sentenced to two years imprisonment on the unlawful stalking charge with that sentence having been imposed after the sentencing judge adopted a global approach to all bar one of the offences that he was being dealt with for on that day.  For that last offence he was sentenced to six months imprisonment to be served cumulatively pursuant to legislation which existed relevant to that particular charge.  The sentence was varied on appeal.  The appeal related to just that six month cumulative sentence.
20. [20]
    The Court formed the view that it was excessive in the circumstances for that particular charge, but that the overall sentence imposed was not and ultimately varied the sentence by sentencing the appellant to two and a half years for the offence of unlawful stalking on a global approach and for the offence that originally attracted the cumulative sentence, that was one of failing to appear, he was convicted and not further punished.  It is apparent from that brief recitation that the sentence imposed was not one that reflected only the charge of unlawful stalking with the circumstance of aggravation. 
21. [21]
    That particular offence was also demonstrably much more serious than that which is involved in this matter.  In that matter the offending occurred over a period of 36 days and involved seven particularised occasions of what were described as threatening acts which included:  the offender scratching the complainant’s car having threatened to do so and also scratching the word “hole” into the bonnet of her car.  He also threatened to at one stage to snap her neck.  He made threats to her and made a gesture of a gun shooting at their child.  On another occasion he sat outside her workplace for approximately two hours until late at night. 
22. [22]
    After the complainant moved address, he located it.  It was a caravan park and he made inquiries as to the location of her new residence.  On one day he forwarded approximately 124 text messages to her.  During the period of the stalking he also repeatedly called her mobile phone.  He sent harassing text messages and would turn up at wherever she was staying on occasion and cause trouble by yelling out or being abusive resulting in her being asked to leave.  His offending also breached a bail condition that he was not to have contact with her and his offending occurred in circumstances where Family Court consent orders were current concerning arrangements involving the child that I have mentioned before.
23. [23]
    The appellant there was of a mature age.  He was 49 years of age at the time of offending.  He had a very significant criminal history; perhaps even more significant than the appellant in this matter.  As would be apparent from that recitation of relevant facts, the sentence of two and a half years in those circumstances is understandable taking all matters into account.  However, if one were attempting to discern what the sentence may have been for just the unlawful stalking charge it is quite apparent that it would have been something substantially less than the two and a half year head sentence.  It is further clear that the offending in that matter was significantly more serious than that in this. 

Consideration

24. [24]
    It is my view that SCM is not authority that the sentence imposed in this matter fell within the appropriate sentencing range, and in fact, there is authority that the sentence imposed in this matter did not do so.  And the Crown Prosecutor, quite candidly, conceded that he could produce no other comparable decision to support the sentence that was imposed in this matter.
25. [25]
    Of course, no two cases are alike.  The determination of a sentence must depend, ultimately, on an assessment of individual circumstances in each and every case.  Comparable decisions are of assistance in determining that issue, but are not determinative of such an issue.  Nevertheless, there are no comparable decisions before the Court in this matter, and I know of none that would support the sentence imposed in this matter.  In addition to that, it is quite apparent that even without the benefit of other decisions, the sentence imposed in this matter was demonstrably excessive.  I infer that the Magistrate, as a starting point for sentence, must have been considering a sentence of approximately 18 months imprisonment, which is an extraordinarily high sentence given the nature of the offending conduct, notwithstanding the fact that the appellant was on parole at the time and had the criminal history that he had.
26. [26]
    The courts must always exercise caution in ensuring that an offender is not twice punished for offences that appear on a criminal history by imposing excessive sentences for subsequent offending conduct.  If 18 months was the starting point, which was excessively high in the circumstances, that was one error; the second is that totality considerations, given that this was to be served cumulatively, meant that inadequate consideration was given to ameliorating that sentence by virtue of the cumulative aspect.  Had this man gone to trial, it is difficult to see that he would have been sentenced or could have been sentenced more harshly.  It would appear on the material that he received no benefit for the entry of the plea of guilty.
27. [27]
    As I discussed with counsel, in my view the submission of counsel for the appellant is appropriate, that being one of six months imprisonment to be served cumulatively.  But it seems to me that an appropriate way of achieving a just outcome is to not set aside the sentence imposed below, but rather to vary it.  That will then give this Court the opportunity to leave the parole eligibility date as was set by the Magistrate below, which would be in the appellant’s best interests if it has any beneficial effect at all.  So that is the order that I intend to make for those reasons.

Orders

1. Appeal allowed. 
2. Sentence imposed in the Magistrates Court at Hervey Bay on 19 March 2024 is varied by reducing the head sentence of 15 months imprisonment to be served cumulatively, to one of six months imprisonment to be served cumulatively. 
3. All other orders made in the Magistrates Court to remain as they were.