AB v Forbes
[2018] ACTSC 134
•18 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | AB v Forbes |
Citation: | [2018] ACTSC 134 |
Hearing Date: | 18 May 2018 |
DecisionDate: | 18 May 2018 |
Before: | Elkaim J |
Decision: | See [22] |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Appeal against sentence – whether the sentences imposed were manifestly excessive |
Cases Cited: | McElholum v Hughes [2016] ACTCA 37 Ngatamariki v The Queen [2016] NSWCCA 155 R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581 |
Parties: | AB (Appellant) Penelope Forbes (Respondent) |
Representation: | Counsel Ms L Bewsher (Appellant) Mr T Hickey (Respondent) |
| Solicitors George Sten & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 5 of 2018 |
Decision under appeal: | Court: ACT Magistrates Court Before: Special Magistrate Cush Date of Decision: 23 January 2018 Case Title: Director of Public Prosecutions v [AB] Court File Number: CC 11049 of 2016 |
ELKAIM J:
This is an appeal from a sentence imposed in the Magistrates Court on 23 January 2018. The appellant was sentenced as follows:
CC 16/11049 (Stalking) – Convicted and sentenced to 15 months’ imprisonment to be released after serving 6 months upon entering into a Good Behaviour Order for a period of 18 months
CC 17/11105 (Contravene Family Violence Order) – convicted and sentenced to 3 months’ imprisonment
The effect of the sentences is that the appellant was required to be in fulltime imprisonment for six months, up to 22 July 2018. On 7 March 2018, he was granted bail by Burns J, so that he has served one month and 13 days of his sentence.
In this appeal, the appellant complains that the sentence was manifestly excessive and that not enough weight was given to his background, his prospects of rehabilitation and to a psychologist’s report.
The notice of appeal indicated that an application would be made to rely upon fresh evidence. This application was made but only on the basis that the fresh evidence (a psychologist’s report) would only be relied upon if the appeal was successful and there was a need to resentence the appellant. Once this was explained, the respondent withdrew its objection to the evidence.
The principles to be applied in appeals of this nature were concisely set out by Refshauge J in Peverill v Crampton [2010] ACTSC 79 (‘Peverill’). His Honour said at [24]:
Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
-The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
-The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
-The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
-The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
-The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
-In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
-The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
In relation to whether a sentence is manifestly excessive the principles are equally well-known. They have been repeated in many cases. For example, in McElholum v Hughes [2016] ACTCA 37 it was said that at [68]:
…the question to be asked is whether the sentence imposed by the magistrate was so plainly in excess of the mark as to bespeak error of principle and therefore necessitate appellate intervention.
In Ngatamariki v R [2016] NSWCCA 155 the New South Wales Court of Criminal Appeal put the test this way, at [75]:
In order to make out a complaint of manifest excess, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust.
There is a disturbing element in this matter, which was apparent to the Magistrate, that the appellant simply does not understand the gravity of his actions. The Magistrate referred to the appellant thinking that “the situation was blown out of proportion”.
If that is a reflection of the appellant’s attitude, then he is absolutely wrong. The Magistrate gave an accurate summary of the conduct when he said:
….but the volume, type, content and the persistence with which the defendant made contact with [the victim] is very disturbing indeed. His conduct was obsessive. It was persistent. It was intimidating. It was harassing. It was offensive. It was vile in some of the things that he sent through to her.
Counsel for the appellant prepared a very useful chronology purporting to illustrate that the conduct, in particular after 25 November 2016, may not have been as severe as summarised by the Magistrate. I think the chronology is more illustrative of how serious the stalking conduct was. Recalling that the period during which the stalking occurred was from 1 July 2016 to 1 May 2017, it can be seen that it includes more than 8,500 text messages sent between 20 October 2016 and 25 November 2016. Most disturbingly, these text messages were in obvious breach of a bail condition that had been imposed on 21 October 2016 that the appellant was not to “contact, harass, threatening or intimidate directly or indirectly [the victim]”.
Approaching the matter on the basis of the principles referred to above from Peverill, there seemed to me to be two possible errors on the part of the Magistrate. The first concerns the discount that was given before the pleas of guilty. His Honour seems to have reduced each sentence by one month. Therefore, the sentence for the stalking charge was reduced from 16 months to 15 months. This is a reduction of about 6.25%. The sentence for the second charge was reduced from four months to three months. This is a 25% reduction.
Two points arise. Firstly, there is the inconsistency between the levels of reduction and, secondly, there is the very small reduction in respect of the stalking charge. The Crown pointed out that the plea for the second charge was entered at a much earlier time than in respect of the stalking charge. Although not stated in this way by the Magistrate, the reduction of 25% is appropriate.
In relation to the 6.25% reduction, the Crown said that this was explained by the plea being late and the overwhelming strength of the Crown case. These are relevant points, although I think a larger discount would have been appropriate. My difference in percentage, however, is not such that it amounts to a conclusion of error on the part of the Magistrate.
The second possible error arises from his Honour’s conclusion that “the report of the forensic psychologist indicates that there is no medical condition, physical or mental, which might account for his behaviour”.
The appellant said this was not a correct reflection of the report which states on page 4 that in response to the question of whether any mental health condition caused or contributed to the conduct in any way:
Yes. His obsessional attachment to the victim and the cognitive distortions/dynamics of the ‘rejected stalker’ have facilitated and maintained [the offender’s] offending behaviour in 2016 and 2017.
The Crown submitted that this did not bespeak error because what is identified by the psychologist is not a mental health condition. The difficulty is that, after having made the above observation, his Honour went on to say that the psychologist had stated there was a need for psychological treatment. It is but a matter of simple logic that a need for psychological treatment must be to address a psychological problem.
I accept that the problem identified by the psychologist does not amount to a specific psychological or psychiatric disorder, which might trigger the considerations referred to in R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581. Nevertheless, as stated in R v Skura [2004] VSCA 53 (‘Skura’) at [8]:
A disorder falling short of serious psychiatric illness might well be capable of moderating the need for general or specific deterrence but the onus was on the applicant to demonstrate that it did so in this case, by establishing that its effect reduced the seriousness of the offences and the moral culpability of the applicant.
In my view, the above quote from Skura reflects the position in this case. I am therefore satisfied that error has been demonstrated.
Turning now to the resentencing of the offender, I endorse fully the Magistrate’s comments about the seriousness of the conduct and the need for a term of imprisonment. The only change I think should be made arises from the report of Ms Martin-Smith (the fresh evidence) highlighting the need for continuing treatment.
This treatment should be continued. Having reached this conclusion, however, I remain of the view that a term of fulltime imprisonment was, and is still is, appropriate. I intend to address the need for continuing treatment by reducing the period of fulltime imprisonment so that the time served is three months.
This alteration to the Magistrate’s orders will I think achieve the purpose of condemning the conduct of the appellant, achieving a statement of deterrence and, at the same time, allowing for rehabilitation and the continuing treatment of the appellant.
I make the following orders:
(a)The appeal is allowed.
(b)The sentences imposed by Special Magistrate Cush on 23 January 2018 in respect of the offence of stalking (CC 16/11049) and the offence of contravene a Family Violence Order (CC 17/1105) are set aside.
(c)In lieu of the Magistrate’s orders, the appellant is resentenced as follows:
(i)In respect of the offence of stalking (CC 16/11049), the offender is convicted and sentenced to 15 months’ imprisonment commencing on 4 April 2018 and ending on 3 July 2019. The sentence is suspended on 3 July 2018 upon the offender entering into a Good Behaviour Order for a period of 18 months. The Good Behaviour Order contains the core conditions and the following additional conditions:
i.The offender is to attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, particularly in relation to Family Violence.
ii.The offender is to be supervised by the Director-General and to obey all reasonable directions of the Director-General for a period of 12 months or such lesser period as deemed appropriate and to report forthwith to the corrections intake officer.
iii.The offender is not to contact by any means directly or indirectly [LP] or [UC] for a period of 12 months, with effect from 3 July 2018.
iv.The offender is to attend treatment following his release with Deborah Smith, psychologist.
v.The offender is not to attend the ACT unless it is for the purposes of attending court or pre-arranged conferences with his legal representatives for a period of 12 months, with effect from 3 July 2018.
(d)In respect of the offence of contravene a Family Violence Order (CC 17/1105), the offender is convicted and sentenced to three months’ imprisonment commencing on 4 April 2018 and ending on 3 July 2018.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 18 May 2018 |
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