HTX v Commissioner of Police[2024] QDC 195

DISTRICT COURT OF QUEENSLAND

The Charges

1. [1]
   The appellant appeals against his conviction for one charge of stalking (contrary to s 359E of the Criminal Code Act 1899 (Qld) (the Code)) between 1 November 2020 and 9 March 2022 at Brisbane in the State of Queensland. The original charge based on conduct between 1 November 2021 and 3 March 2023 was dismissed on the morning of the trial.
2. [2]
   Particulars were provided of the charge. Paragraph 1 of the particulars (as amended) alleged that between 1 November 2020 and 9 March 2022, the appellant unlawfully stalked the complainant by engaging in one or more of the following acts which were intentionally directed at her, namely:

1. 1. Intimidate and/or harass the complainant by recording her walking from the shower to a bedroom whilst naked;
2. 2. Intimidate and/or harass the complainant by uploading still images of her naked to his Facebook account;
3. 3. Harass the complainant by searching through her mobile telephone;
4. 4. Harass the complainant by reading her diary and making it known to her;
5. 5. Harass the complainant by contacting her work supervisor and discussing with him their relationship, her mental health and her work roster;
6. 6. Harass the complainant by contacting other persons, namely Queensland Police Service employees and discussing with them his relationship with the complainant, the complainant’s mental health and her work roster;
7. 7. Intimidate and/or harass the complainant by attempting to access her Facebook account;
8. 8. Intimidate and/or harass the complainant by sending text messages to her containing an image of the complainant’s text messages;
9. 9. Intimidate and/or harass the complainant by running the hot water when the complainant was in the shower;
10. 10. Intimidate and/or threaten the complainant by saying he would continue to contact the complainant’s work colleagues if she “didn’t play nice”;
11. 11. Intimidate and/or harass the complainant by installing a recording device in the lounge room of the complainant’s residence; and
12. 12. Harass the complainant by attempting to enter the complainant’s vehicle. [Numbering added].

3. [3]
   Paragraph 2 alleged that the appellant’s behaviour was directed at the complainant.
4. [4]
   Paragraph 3 alleged that the behaviour was of a nature that would reasonably cause the complainant apprehension or fear. This allegation was not developed in any way: no particulars or examples were given of the apprehension or fear.
5. [5]
   Paragraph 4 alleged that the appellant’s behaviour caused the complainant detriment. This paragraph, unlike paragraph 3, particularised the detriment to the complainant.  It was said that the complainant suffered psychological and/or emotional harm (including but not limited to being unable to sleep, having nightmares, being fearful and scared and suffering paranoia). It was also said that the complainant had refrained from doing acts she was entitled to do (including but not limited to moving into another bedroom and changing the lock on the door, changing the passcode to her mobile phone, discarding any personal documents, stopping keeping records and leaving the property where the appellant was staying with the children).
6. [6]
   Paragraph 5 alleged that, at the time, the complainant and the appellant were in a relevant relationship, namely they were in an intimate personal relationship (married) and/or an ex-intimate personal relationship (separated) making this a domestic violence offence.
7. [7]
   The parties will be referred to, in these reasons, consistently by their roles in this appeal, even when discussing the hearing before the Magistrate.

The Offence

8. [8]
   Section 359E(1) of the Code provides, “A person who knowingly stalks, intimidates, harasses or abuses another person is guilty of a crime.”
9. [9]
   Section 359B of the Code defines the meaning of “unlawful stalking, harassment or abuse” as conduct (relevantly):

1. “(a)
   intentionally directed at a person (“the stalked person”); and

1. (a)
   engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
2. (b)
   consisting of 1 or more acts of the following, or a similar type:

1. (i)
   following, loitering near, watching or approaching a person;
2. (ii)
   contacting a person in any way, including, for example, using any technology and over any distance;

……

1. (iv)
   monitoring, tracking or surveilling a person’s movements, activities or interpersonal associations without the person’s consent, including, for example, using technology;

…

1. (viii)
   an intimidating, harassing, threatening, humiliating or abusive act against a person, whether or not involving violence or a threat of violence;

…..

1. (c)
   that:

1. (i)
   would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or
2. (ii)
   causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.”

10. [10]
    Section 359C(4) provides that it is immaterial whether the appellant intended to cause the apprehension or fear, or the detriment, mentioned in the section.  Section 359C(5) provides that it is immaterial whether the apprehension or fear, or the violence, mentioned in the section is actually caused.
11. [11]
    Violence is defined in s 359A, as:

1. “(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

1. (b)
   against a person includes an act depriving a person of liberty; and
2. (c)
   against property includes an act of damaging, destroying, removing, using or interfering with the property.”

12. [12]
    Detriment is defined in s 359A to include the following:

1. “(a)
   apprehension or fear of violence to, or against property of, the stalked person or another person;

1. (b)
   serious mental, psychological or emotional harm;
2. (c)
   prevention or hindrance from doing an act a person is lawfully entitled to do;
3. (d)
   compulsion to do an act a person is lawfully entitled to abstain from doing.”

13. [13]
    The legislation gives the following examples of (c):

“A person no longer walks outside of the person’s place of residence or employment.

A person significantly changes the route or form of transport the person would ordinarily use to travel to work or other places.”

14. [14]
    The word “circumstances” (used in s 359B(d)) is defined in s 359A to mean the following circumstances:

1. “(a)
   the alleged stalker’s circumstances;

1. (b)
   the circumstances of the stalked person known, foreseen or reasonably foreseeable by the alleged stalker;
2. (c)
   the circumstances surrounding the unlawful stalking;
3. (d)
   any other relevant circumstances.”

Mode of Appeal

15. [15]
    The appeal is brought by the appellant pursuant to s 222 of the Justices Act 1886 (Qld).
16. [16]
    Pursuant to s 223 of that Act, an appeal under s 222 is by way of rehearing on the original evidence, with any new evidence adduced only by leave. 
17. [17]
    The rehearing requires this court to make its “own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.”^[1]
18. [18]
    The process involves a “real review”^[2] of the record of proceedings below, rather than a “completely fresh hearing.”^[3]
19. [19]
    In such an appeal, the appellant must establish some “legal, factual or discretionary error.”^[4]
20. [20]
    The appellate court ought to pay due regard to the advantage that the Magistrate had in observing a witness’ tone and demeanour.^[5]

Grounds of Appeal

21. [21]
    The grounds of appeal are stated as follows:

1. The learned Magistrate’s finding of guilt was, on the evidence, wrong by incontrovertible facts or uncontested testimony, or otherwise glaringly improbable such that this Honourable Court should, on a rehearing of the evidence, substitute its own finding of not guilty;
2. The learned Magistrate erred in finding that the conduct would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person when the respondent narrowed its case to conduct that causes detriment, reasonably arising in all the circumstances, to the stalked person;
3. The learned Magistrate erred in finding an act of stalking because it did not form part of the respondent’s particulars, was outside the charged period, and was of no probative value to justify the finding; and
4. The sentence of two months’ imprisonment, wholly suspended for 18 months, was excessive in all the circumstances.

The Magistrate’s Decision

22. [22]
    Evidence was given at the trial by the complainant (who was employed as a police officer at the time of giving evidence and during the charged period), a friend of the complainant, a police officer who was also the complainant’s supervisor, another police officer who was the complainant’s senior officer and the arresting police officer. All of these police officers (except the complainant) held the rank of sergeant or senior sergeant.  The appellant did not give or call any evidence, as was his right.
23. [23]
    The trial took place over two days; on 1 August 2023 and 1 November 2023. The Magistrate adjourned the hearing on the second day to allow counsel to provide written submissions. These were provided and the Magistrate delivered his decision and sentence on 1 March 2024.
24. [24]
    The Magistrate found that each of the witnesses called by the respondent were honest and reliable witnesses; though left open whether the arresting officer over-reached in his affidavit objecting to bail.
25. [25]
    The learned Magistrate found certain conduct of the appellant to be proven beyond reasonable doubt. In doing so, the Magistrate made no reference to the wording of the particulars as contained in paragraph 1 of the particulars.  By reference to the decision, it appears that the learned Magistrate found each of the acts as set out in numbered subparagraphs 1, 3, 4, 5, 6, 8 and 11 of paragraph 1 of the particulars proven beyond reasonable doubt.
26. [26]
    The Magistrate said that he could not be satisfied that what was alleged about the appellant and Facebook constituted stalking. That finding presumably relates to the acts alleged in numbered subparagraphs 2 and 7 in paragraph 1 of the particulars.  The Magistrate held that in fact he could not be satisfied beyond reasonable doubt of any relevant connection between the appellant and the complainant’s Facebook account. The latter finding is presumably a reference to the act alleged in numbered subparagraph 7 of paragraph 1 of the particulars.
27. [27]
    There was no reference in the decision to the conduct contained in the numbered subparagraphs 2, 9, 10 and 12 of paragraph 1 of the particulars.
28. [28]
    In addition, the Magistrate made reference to a number of other acts about which evidence was given but which was not particularised. Those acts included acts such as the appellant having entered the downstairs bedroom occupied by the complainant shortly before Christmas 2021 and having deliberately opened a parcel which was the personal property of the complainant as well as the appellant having in February 2023 taken a photograph of the complainant’s senior colleague at a shopping centre and posted it on Facebook.  The latter acts were outside the charged period.
29. [29]
    In reaching his positive findings about the facts, the learned Magistrate rolled each of the factual allegations together and held that the appellant had engaged in the conduct and that such conduct was intentionally directed at the complainant and was without lawful justification.  His Honour did not separate the elements of unlawfulness, intention and intimidation and harassment in relation to each of the acts referred to in paragraph 1 of the particulars.
30. [30]
    His Honour repeated his findings as regards the rollup matters a number of times but at no time did he make reference back to the particulars; though as observed it is apparent from the decision that the Magistrate found the conduct as particularised proven in relation to seven of the twelve numbered subparagraphs of paragraph 1.  His Honour stated that the court is entitled to take the conduct of the appellant as a whole over the charged period.
31. [31]
    The acts which formed the substance of the allegations which were proven were not really in dispute at the hearing. The substantial issue at the hearing was whether the behaviour was of such a nature as to cause the complainant detriment, reasonably arising in all the circumstances. In this respect, the appellant’s case at the hearing was that the respondent could not and had not proven any detriment.
32. [32]
    The appellant submitted firstly, that the respondent could not exclude the possibility that any change in the complainant’s behaviour was because of the lifestyle adjustment in the breakdown of the marriage. The appellant relied upon the oral evidence of the complainant’s best friend and her work colleague to that effect for that submission. Secondly, the appellant submitted that there was evidence inconsistent with the behaviours causing detriment. The appellant referred to the facts that the complainant went through the appellant’s phone; the complainant and the appellant continued to have a consensual sexual relationship until late October 2021; the complainant left the marital bedroom and moved downstairs but subsequently returned to it although it had no locks; and the complainant accepting that the appellant kept his tools in her car. Thirdly, the appellant relied on the delay between the last act particularised by the respondent, being the discovery of the recording device in the loungeroom on 30 December 2021, and the making of a criminal complaint in February 2023. Fourthly, the appellant compared the facts with the examples of detriment given in s 359A. Finally, the appellant submitted that the respondent had not identified with precision any acts upon which it relied to submit that the conduct was intimidating, and that this submission in itself was inconsistent with what the appellant described as a concession that there was no apprehension or fear of violence.
33. [33]
    In giving his decision, the learned Magistrate dealt separately, as he was bound to do, with the element of detriment. His Honour started with repeating his view that the appellant had engaged in the conduct as found on more than one occasion, the conduct as found was controlling in nature, intimidating and harassing over a protracted period and it was deliberate and was planned.  As to detriment, the Magistrate stated:

“I am satisfied beyond reasonable doubt that as the misconduct of the defendant escalated over the time set out in the charge, resulting in the complainant being scared of the defendant and what he was capable of doing, fearing that there was nothing that she could do to stop the defendant from interfering in her life,  resulting in her being scared for how [sic] own safety and the safety of the children and creating insecurity in her personal life; resulting in her ability to do her job as a police officer being adversely affected, that is to say, insecurity in her work life and workplace; resulting in her confidence in her ability to perform her functions as a police officer being undermined; resulting in her mental health being adversely affected; resulting in a diminished enjoyment of life and a diminution in her ability to enjoy life; and resulting in her becoming withdrawn in her personal and work life and her being in fear of the defendant.

I am satisfied beyond reasonable doubt that all of those things are real detriments suffered by the – occasioned to the complainant as a consequence of the deliberate and intentional actions of the defendant as found by me. I am satisfied beyond reasonable doubt the conduct of the defendant as found caused a detriment which reasonably arose in the circumstances to the complainant.”

34. [34]
    The Magistrate did not deal with the alternate element contained in s 359B(d)(i) of the apprehension or fear of violence. Rather, the Magistrate, having been satisfied beyond reasonable doubt of detriment, found that the appellant had unlawfully stalked the complainant between 1 November 2021 and 3 March 2023.  The Magistrate found that he was satisfied that the respondent had proven each and every element of the offence beyond reasonable doubt.
35. [35]
    In giving his reasons, the learned Magistrate did not deal at all with the five submissions made on behalf of the appellant as to why the element of detriment had not been proven.

Submissions on Appeal Relating to Proof

36. [36]
    The main focus of the appeal was the submission that there was insufficient proof that the appellant’s conduct had caused the complainant a detriment, reasonably arising in all the circumstances. In this respect, the appellant primarily relied upon the first, second and third submissions made at the trial.
37. [37]
    The respondent submitted in response that the complainant in her evidence described feeling mortified, embarrassed and concerned as a result of the appellant’s conduct, and described eventually feeling scared, unsafe and uncomfortable in her own home. The respondent specifically referred to the complainant’s change in routine with respect to her showering: taking her clothes into the shower and making sure the door was shut and locked. The respondent referred to the complainant’s change in demeanour; describing herself as becoming more withdrawn and not wanting to talk to people including her friends and family. The respondent referred to the complainant moving into a separate room in the house, changing the locks on her door, changing the passcodes on her phone and throwing out the diaries she had been keeping.

Apprehension or Fear

38. [38]
    It is necessary at this stage to deal with the element of apprehension or fear as set out in s 359B(d)(i) of the Code. Apprehension or fear of violence is an alternative fourth element of stalking to detriment contained in s 359B(d)(ii).
39. [39]
    As mentioned earlier, the particulars provided at trial alleged not only detriment, but the alternate element of apprehension or fear. No detailed particulars were provided of the latter allegation. The respondent, moreover, in its written submissions at the trial dealt solely with the element of detriment. No reference was made to the alternate element of apprehension or fear. The appellant took that as a concession that the complainant had given evidence inconsistent with that element and submitted that the respondent had failed to prove that element and directed the bulk of their submissions to the question of detriment. The learned Magistrate, as referred to above, in his reasons only addressed the element of detriment.
40. [40]
    The issue is perhaps confused because at trial the respondent relied upon the complainant fearing for her safety as indicia of detriment and, as is apparent from the above, his Honour also relied upon the complainant being scared of the appellant and fearing that there was nothing she could do to stop the appellant from interfering in her life in support of his finding of detriment.
41. [41]
    In its written submissions on appeal, the respondent relied upon the written particulars at trial and what it said was contained in its written submissions at trial.  It was said that the fact the respondent focussed their submissions on detriment did not mean a concession was made that the complainant’s evidence was inconsistent and referred to the clear evidence of the complainant becoming fearful as a result of the appellant’s conduct. The respondent stated that the learned Magistrate was entitled to find the same.
42. [42]
    It is surprising that the respondent on appeal persisted with an attempt to rely upon s 359B(d)(i).  Although there was no explicit abandonment of paragraph 3 of the particulars, the respondent clearly could not and did not articulate, either in the particulars or its submissions, any basis for the allegation.  Moreover, the respondent at trial relied upon, and the Magistrate adjudicated upon, the element of detriment, not apprehension or fear.
43. [43]
    There is a further factor to consider and that is that s 359B(d)(i) not only requires apprehension or fear to be made out, but that it be apprehension or fear of violence to, or against the property of, the stalked person or another person.  Similarly, the definition of detriment which also includes apprehension or fear, also requires that it be apprehension or fear of violence.
44. [44]
    There was simply no evidence of any violent conduct or other conduct which might have provided a properly based fear in the complainant of violent conduct. It is not surprising that the respondent at trial did not particularise this element: there was simply no evidence to support such a finding.  That is consistent with findings made by the learned Magistrate in his sentencing remarks that there was no violence or threat of violence.
45. [45]
    In oral submissions in the appeal, counsel for the respondent properly conceded that the element of apprehension or fear was not supported by the evidence.

Detriment

46. [46]
    It is accordingly necessary to consider the role that the complainant being scared has in proving that the behaviour caused detriment, reasonably arising in all the circumstances.
47. [47]
    There are a number of difficulties with the allegation and the finding. The first, as previously mentioned, is that although fear is referred to in s 359B(d)(i), and within the definition of detriment for the purpose of s 359B(d)(ii), the reference is not to fear simpliciter, but to fear of violence. Violence itself is defined so as not to include any force or impact within the limits of what is acceptable as incidental to social interaction or life in the community. It is unnecessary to examine what that might entail, but clearly the intention of the legislature is not to capture within the parameters of the offence every act of force or impact, or fear of the same.
48. [48]
    The other aspect of the legislation which is striking is that it is not every psychological or emotional harm which is encompassed within the concept of detriment. It must be serious mental, psychological or emotional harm. Serious psychological or emotional harm was not alleged in the particulars, nor was it found by the Magistrate.
49. [49]
    The highest it was put by the Magistrate was that the complainant was scared; a finding somewhat diminished in seriousness by the explanation that she was scared by what the appellant “was capable of doing, fearing that there was nothing that she could do to stop the defendant from interfering in her life”. The Magistrate did find that she was scared for her own safety and the safety of her children and was in fear of the appellant, but, as I have said, there were no particulars relating to the allegation reflecting s 359B(d)(i) or in fact that subparagraph of the definition of detriment, the trial was not run on that basis nor was there any finding or mention of violence in the evidence or reasoning.
50. [50]
    The Magistrate did find that the fears created insecurity in her personal life, that her ability to do her job as a police officer was adversely affected and that this resulted in her confidence in her ability to perform her functions as a police officer being diminished and her mental health being adversely affected, but the level of the loss of amenity of life is not stated.
51. [51]
    The other legal requirement of some significance is that the detriment must reasonably arise having regard to the stalker’s circumstances, the circumstances of the stalked person and the stalking itself. No real consideration was given in the decision to the facts referred to by counsel for the appellant; namely the breakdown in the marital relationship, the consensual sexual relationship which covered a significant part of the charged period, that the complainant also had gone through the appellant’s phone and the delay in the making of a criminal complaint.
52. [52]
    Similar considerations apply to the physical change in behaviours relied upon by the respondent. That there was a change in showering habits, bedroom habitation and the locks on the phone was not contested. All of these occurred, however, in the context of what would appear to have been, from the complainant’s perspective, a cooling in her view of the relationship or of the appellant. It is hard to conclude that the changes were unusual in that situation. It is reasonable that they occurred. It is difficult to accept that there was any real significance to these changes.
53. [53]
    The significance of the changes is also diminished by a consideration of the timing of these changes. The recording of the complainant walking naked from the bathroom to the bedroom occurred in late November or early December 2020. The complainant said that it was at this time that she checked the appellant’s phone and found stills of the events on his Facebook Messenger and asked him to delete them. It was following this conversation that she started taking her clothes into the bathroom and locking the door. The complainant said that it was in March 2021 that she noticed that her phone had been moved and, upon questioning, that the appellant then told her that he had been looking through it.
54. [54]
    They were, however, sleeping in the same bed and sexually active until the end of October 2021, and it was only at that time that the complainant moved downstairs to a separate bedroom. There was no actual evidence that the change in the bedroom reflected anything other than the breakdown in the marriage; the parties having been to marriage counselling in September 2021.
55. [55]
    All of this is reinforced by the fact that no criminal complaint about the conduct took place until about thirteen months after the last act relied upon by the respondent in the particulars, and this seems to have been only precipitated by the non-charged conduct which is the subject of ground 3 of the appeal.
56. [56]
    The timing is also relevant to the alleged change in demeanour, but there are other problems with the submission that this provides proof of detriment. The complainant said that she became more withdrawn, but it is clear that this change was because she did not want to talk about the breakdown of the relationship with the appellant either to her family or friends. Her supervisor gave evidence of observing the complainant being emotional, but he made it clear that this occurred during the period, and inferentially because of, the marriage breakdown. The complainant’s friend, who had known the complainant since primary school, gave direct evidence that she observed the complainant being emotional during this period and said that the complainant explained to her that this was because she was going through her separation and divorce. Her friend described the complainant as a really strong, kind, beautiful person, and later as a fairly private person.

Conclusion as regards Detriment

57. [57]
    The evidence and the considerations relating to detriment, to which I have referred, were not considered by the Magistrate.
58. [58]
    Section 225 of the Justices Act allows this court to set aside an order, and remit the proceedings to the person who made the original order with directions for the further conduct of the proceedings including directions for rehearing and reconsideration. I do not consider, given the way that the matter was approached by the learned Magistrate, however, that he could fairly reconsider whether the charge was made out having proper regard to the element of detriment.
59. [59]
    It is technically possible that an order could be made for a new trial before a different Magistrate, but neither party advocated that course and both, consistently with the provisions of the Justices Act and quite properly, were prepared to have the appeal decided as a rehearing on the existing evidence.
60. [60]
    In my view, having regard to the requirements of the legislation, the nature and timing of the changes in the physical behaviours, the delay in and background to the making of the criminal complaint, the fact that the changes in demeanour were explicable for reasons unrelated to the alleged harassment and all the evidence offered at trial, I conclude that there is insufficient evidence of detriment within the meaning of the Code to hold the appellant guilty beyond reasonable doubt of stalking.

Ground 1 of the Appeal

61. [61]
    I accordingly uphold ground 1 of the appeal. That is sufficient to dispose of the appeal but it is necessary to make findings on the other grounds in case an alternate conclusion is reached as to ground 1.

Ground 2 of the Appeal

62. [62]
    As previously indicated, there were findings by the learned Magistrate that the conduct would have caused the stalked person fear, but there is no actual finding by the Magistrate that the appellant caused the complainant apprehension or fear of violence within the meaning of s 359B(d)(i) or s 359B(d)(ii) (in so far as detriment is defined in s 359A to include apprehension or fear of violence). Nor do I consider that the Magistrate would have been entitled to do so given the way the trial was run by the respondent and having regard to the evidence of the complainant.
63. [63]
    For that reason, I do not uphold ground 2.  Given my findings in relation to ground 1, that does not impact the outcome of the appeal.

Ground 3 of the Appeal

64. [64]
    Ground 3 was formulated in the written submissions of the appellant as relating to the findings about certain events which occurred at Garden City Shopping Centre.
65. [65]
    The learned Magistrate found that in February 2023 (or thereabouts) the appellant was at Garden City at the “very same time” as the complainant and the complainant’s senior officer.  Further, the Magistrate found that the appellant took a photo of the senior officer and must have been very close to the senior officer when taking the photo and posted the photo on Facebook together with an insulting or disparaging message. The Magistrate found that the intention of the appellant was to deliberately continue his harassment and intimidation of the complainant by embarrassing her bosses.
66. [66]
    The Magistrate also found that the appellant had followed either the complainant or the senior officer to the shopping centre that day; though the Magistrate could not be satisfied beyond reasonable doubt as to which, he was satisfied beyond reasonable doubt that either scenario was conduct intimidating and harassing to the complainant.
67. [67]
    The Magistrate observed that it was after these events that the complainant made an official complaint against the appellant. In the written submissions in this appeal, it was suggested on behalf of the respondent that the evidence was admitted for that purpose. The inference is inescapable that if the conduct had not involved the senior sergeant then no criminal complaint would have been made.
68. [68]
    None of these facts formed part of the particulars of stalking and given the evidence as to when the photograph was taken, these events occurred about a year after the end of the period referred to in the charge and about which the trial was concerned.
69. [69]
    Nevertheless, the factual findings about the events at the shopping centre appear to have been significant. During the course of the decision about them, the learned Magistrate found that the event involved a significant escalation of the appellant’s conduct. The Magistrate when reading the charge out at the commencement of his decision and at the end of his decision (when finding the appellant guilty) stated the last day of the offence occurred on 3 March 2023, not 9 March 2022, suggesting that in his mind these events occurred within the charged period and that he was entitled to use the evidence in support of the guilty finding.
70. [70]
    I consider that all of this points to the evidence of these events as having been considered by the Magistrate in reaching the ultimate conclusion that the appellant was guilty of stalking.
71. [71]
    Accordingly, I find this ground of appeal to be made out.  This fact alone could not have resulted in the setting aside of the finding of guilt, nor is that suggested, as this conduct was one of a number of acts of the appellant found by the Magistrate to constitute stalking of the complainant.  The error, however, is a significant one.

Sentencing Remarks

72. [72]
    Apart from the appeal against conviction, the appellant also appealed against his sentence on the grounds that it was manifestly excessive. Whilst my findings in relation to grounds 1 and 3 make any finding in relation to the sentence unnecessary, I consider that some observations as to the sentence imposed are appropriate.
73. [73]
    The appellant was a mature man who had no criminal history and was in full employment. There was no repetition of the conduct after the charge was laid. The events occurred in the context of a breakdown in the marriage. The differences between the complainant and the appellant had been settled amicably in the Family Court. The appellant spent a night in the watch house after being arrested.
74. [74]
    The Magistrate referred to all these facts in his sentencing remarks.
75. [75]
    The Magistrate also referred to the complainant’s victim impact statement and said that the consequences of the appellant’s actions were severe, and that the complainant had suffered personally, in her workplace and in her mind.
76. [76]
    The Magistrate referred to a number of comparative sentences and found the decision of the Court of Appeal in R v Briggs^[6] quite relevant. The Magistrate quoted from parts of the decision, and referred to the conclusion that fifteen months imprisonment (wholly suspended with an operational period of 4 years) which had been ordered by the primary judge in that case was proper and moderate.

Appellate Court Intervention on Sentence

77. [77]
    Appellate Court intervention on the basis of manifest excessiveness or inadequacy:

“is not warranted unless, having regard to all the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”^[7] 

78. [78]
    However, as the plurality stated in Hili v The Queen,^[8] quoting the plurality in Wong v The Queen:^[9]

“[A]ppellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.’”

Consideration of Sentence

79. [79]
    The maximum penalty that may be imposed by a Magistrate’s court for the offence of stalking is 7 years; given that it occurred in a domestic situation.
80. [80]
    The respondent submitted that the sentence was within the sound exercise of a discretion given that the conduct had taken place over an extended period of eighteen months to 2 years.
81. [81]
    The period of the charge was in fact sixteen months, and the period covered by the acts alleged in the particulars was, on the evidence, fourteen months.
82. [82]
    The period of the offending in Briggs was more extended than the present case and involved two complainants. The first was of the appellant’s ex-wife (a period of over 2 and a half years) and a work colleague of hers (a period of over two years). The acts consisted of incessant silent telephone calls at all hours of the day and night and offensive text messages to the complainants and the work colleagues and employer of his ex-wife. The ex-wife required counselling and anti-depressant medication, and her work colleague took a demotion to move to another city. The alleged conduct was wholly contested by the appellant. Holmes JA, who delivered the judgment with whom the others on the Court of Appeal agreed, described the stalking as malicious, destructive and protracted and calculated not merely to distress and intimidate the complainants, but to destroy their relationships with others.^[10]
83. [83]
    A striking feature of the present case is that although the appellant was found to have contacted the complainants’ work colleagues and to have discussed their relationship, her mental health and work roster with them, there is no suggestion that the contact involved incessant abusive and obscene telephone calls or texts.
84. [84]
    The events occurred after an apparent consensual breakdown in their twenty two year relationship and whilst they were living together, albeit ultimately in separate areas, in the matrimonial home.
85. [85]
    Added to the factual matters is the distinct probability, given that they were said to involve an escalation of the harassing conduct, that the findings by the Magistrate (uninvited) as regards the events at Garden City Shopping Centre played a part in the Magistrate’s decision on sentence.
86. [86]
    In all the circumstances a sentence of imprisonment, even suspended, was not justified and was manifestly excessive.  I consider that the appropriate sentence in all the circumstances would have been a fine and that it would have been appropriate not to record a conviction.
87. [87]
    I would have upheld this ground of appeal.

Costs

88. [88]
    In accordance with s 232(4) of the Justices Act, no order as to costs will be made.

Orders

89. [89]
    For these reasons, I make the following orders:

1. 1. Appeal allowed.
2. 2. Set aside the verdict of guilty, enter a verdict of not guilty and discharge the appellant.
3. 3. No order as to costs.