Atkinson v The Queen
[2021] VSCA 127
•13 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0017
| NATHAN ATKINSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 May 2021 |
| DATE OF JUDGMENT: | 13 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 127 |
| JUDGMENT APPEALED FROM: | [2019] VCC 2135 (Judge Hogan) |
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CRIMINAL LAW — Appeal — Conviction — Application for extension of time — Stalking, discharging firearm at premises and related charges — Whether convictions subjected applicant to double punishment — Person may be prosecuted under two or more laws if act constitutes an offence under multiple laws — Application refused — Interpretation of Legislation Act 1984 s 51 — Pearce v The Queen (1998) 194 CLR 610 applied.
CRIMINAL LAW — Appeal — Sentence — Total effective sentence of 8 years and 1 month’s imprisonment with 5 years non-parole — Whether applicant doubly punished — Whether sentence infringed the principle of totality — Whether sentence manifestly excessive — Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms G Connelly | Victoria Legal Aid |
| For the Respondent: | Mr J Dickie | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA:
Charges, sentence and grounds of appeal
On 24 October 2019, the applicant pleaded guilty before a judge in the County Court to: stalking[1] (two charges); damaging property;[2] attempted arson;[3] being a prohibited person in possession of a firearm;[4] discharging firearm at premises[5] (three charges); and possessing a drug of dependence.[6]
[1]Crimes Act 1958, s 21A. The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 197(1) and (6). The maximum penalty is 10 years’ imprisonment.
[4]Firearms Act 1996, s 5(1). The maximum penalty is 10 years’ imprisonment.
[5]Firearms Act 1996, s 131A(2). The maximum penalty is 20 years’ imprisonment.
[6]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). The maximum penalty is one year’s imprisonment where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking.
Following a plea in mitigation conducted over two days, on 18 December 2019 the judge sentenced the applicant to a total effective sentence of eight years and one month’s imprisonment, with a non-parole period of five years, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Stalking 4 years and 6 months Base 2 Stalking 4 years and 6 months 18 months 3 Damaging property 2 years 3 months 4 Attempted arson 3 years 3 months 5 Prohibited person in possession of firearm 10 months 1 month 6 Discharging firearm at premises 4 years and 6 months 7 months 7 Discharging firearm at premises and vehicle 4 years 7 months 8 Discharging firearm at premises 3 years and 6 months 4 months 9 Possessing a drug of dependence Convicted and discharged — Total effective sentence: 8 years and 1 month’s imprisonment Non-parole period: 5 years Section 6AAA declaration: 10 years’ imprisonment, 7 years non-parole Pre-sentence detention: 271 days Other orders: Forfeiture and compensation orders
Initially, the applicant sought leave only to appeal against his sentence on two grounds:
1. The learned sentencing judge erred by:
(a) doubly punishing the applicant; and
(b) giving insufficient weight to the principle of totality.
2. The total effective sentence of 8 years and 1 month, and the non-parole period of 5 years was in all circumstances manifestly excessive.
On the eve of the hearing in this Court, however, counsel for the applicant gave notice that the applicant also wished to make an application for an extension of time within which to file a notice of application for leave to appeal against conviction.[7] The proposed ground of appeal with respect to conviction was as follows:
1. The convictions on charges 6 – 8 are irregular in that they subject the applicant to double punishment.
[7]See Criminal Procedure Act 2009, s 313; Supreme Court (Criminal Procedure) Rules 2017, r 2.23.
For the reasons that follow, both the application for an extension of time, and the application for leave to appeal against sentence, must be refused.
The applicant’s offending
To understand the issues raised by the applications, it is necessary to say something of the applicant’s offending.
On the plea, the Prosecution Opening was treated as an agreed statement of facts. So far as relevant, it described the circumstances of the offending as follows:[8]
[8]Footnotes omitted.
Introduction
1. [The applicant] was born on 2 January 1993. He was aged 26 at the time of the offending and remains so at the date of the plea. At the time of the offending, he lived in Melton West, and was employed as a mechanic
2. [The applicant] is pleading guilty to a number of offences committed between January and March 2019 against [‘MJ’] and her partner, [‘BR’].
3. [MJ] had been in a relationship with [BR] for a number of months prior to the offending. [BR] lived at an address in Burge Road, Sunbury with his mother, but he stayed at [MJ’s] address on a regular basis.
4. [MJ] is a former acquaintance of the [applicant]. They met around three years prior to the offending and would have intermittent contact from that time up to December 2018, for the purpose of [the applicant] supplying [MJ] with prescription medication. [MJ] last contacted [the applicant] for that purpose in December 2018, when she arranged for him to deliver the [medication] to her new address in Lalor Crescent, Sunbury. After that time, [MJ] sought to avoid contact with the [applicant], because she was trying to stop her pill-taking habit. However, [the applicant] continued to contact [MJ] by sending her a large number of text messages and by calling her phone. [MJ] usually did not respond to that contact, however she occasionally did so, in order to inform [the applicant] that the contact was unwelcome.
Circumstances of offending
5. Commencing at 11:35 am on 4 January 2019, the [applicant] and [MJ] engaged in a text message exchange. [MJ] expressed exasperation with [the applicant’s] ‘pathetic, childish bullshit’, and said ‘if ur gunna do something to my house or any of the cars go for it, make things harder for me because you don’t like my choices… I’m sick of this’.
6. [The applicant] replied to deny he had threatened [MJ], sending a message which said, amongst other things, ‘Im only starting this now because you wont tell me if your seeing somebody or not… Im not trying to make you feel shitty at all, im trying to make you realise everything that ive done for you and im genuine and all I want is literally 1 shot to show and prove to you and if I fuck it up then that’s my fault… So I’ll leave you alone now and let u think about everything and when you make up your mind let me know’.
7. Two minutes later, he sent a further message saying, ‘just think about it and everything I have done for you about giving me just 1 shot and I promise no clingy shit and if you say yes then I can promise it ‘wont get worse’ like u said’.
8. [MJ] replied, ‘what did I say from the start when I first met ya. All I fuckin want is to at least have 1 genuine friend yer that isn’t gunna want more from me (witch what you’ve been tryin to do this hole fuckin time)’. She said that [the applicant] had already ‘cracked it’ at her for hanging out with other people, and that he was putting her ‘under pressure’ and ‘stress by sending me all this bullshit all the time’. [MJ] concluded the message by saying, ‘Maybe I’m just a shitty person, I’m not attracted to you because all I wanted was a friend but you had to always make me uncomfortable by saying what ur saying again now. Just stop leave me alone I’m not thinking about anything right now yer I’ve got bigger problems than this petty bullshit. Bye’.
9. [The applicant] replied that he was ‘only trying to make you see how I feel to you show I am genuine’, said he didn’t have anything else to say, but that he hoped once [MJ] ‘calm[ed] down’ she would ‘have a proper think and change [her] mind’.
10. [MJ] did not respond to that message.
11. At approximately 8:40 pm, [the applicant] drove to Sunbury and parked a short distance from [MJ’s] residence. He then sent her a message saying, ‘Im out the front’. [MJ] replied to say that she was taking her grandmother (who lived with her at the time) to hospital the following day, referred to [the applicant] as a ‘stalker’, told him he could ‘sit out there all night for all [she] care[d]’ commenting, ‘nice way to make me feel uncomfortable in my own home’.
12. A short time later the [applicant] sent further messages commenting, ‘Called Blakey down huh?’ (a reference to [BR]), followed by another message, ‘Or whoever it is, I wouldn’t send then to me otherwise I’ll stab them’.
13. Police attended Lalor Crescent at around 12:10 am on 5 January 2019 following a report by neighbour that a suspicious vehicle (the [applicant’s]) had been parked outside for approximately 30 minutes. Police located the [applicant’s] vehicle, but no person present. A short time before they arrived, the [applicant] had exited his vehicle and walked to [MJ’s] house. He crawled under [BR’s] vehicle, which was parked in the driveway, and cut the brake lines to all four tyres [charge 3 — criminal damage]. [BR] discovered the damage at approximately 5:30 that morning, when he attempted to drive to work. The car was towed to a local mechanic who noted that the brake lines had been cut cleanly with side cutters or similar. The damage cost $494 to repair.
14. At 1:59 pm on 5 January 2019, [MJ] sent [the applicant] a text message saying he had been caught on her cameras tampering with the brakes. She again referred to the [applicant] as a ‘stalker’, said they would not be friends, that she hated him and said that he was not to speak to her again. The [applicant] replied to say that he hadn’t done anything, and that he had left after [MJ] had ‘said yes to thinking shit over,’ and had been at home ever since.
15. Phone call records obtained by police revealed that the [applicant] sent [MJ] a total of 80 text messages between 12:06 am and 7:24 pm on 5 January 2019.
16. On 20 January 2019, the [applicant] attended at [MJ’s] house and attached a typewritten note to her front door. [MJ] discovered the note later that day. The note was addressed to ‘Blake’ and was from ‘Emily’. In the note, ‘Emily’ stated that she was pregnant to Blake, asked why he had never introduced her to his sister, asked whether he treated every girl like that, as she was aware of ‘2 other girls who have both said you say very similar things to [them]’. ([BR] does not have a sister.) [MJ] alerted [BR] to the note, and they provided it to police.
17. That night, [BR] exited [MJ’s] address and observed the [applicant’s] vehicle parked a short distance away. The vehicle remained stationary for a short period before speeding away with its headlights off.
18. At approximately 4:30 am on 28 January 2019, [the applicant] was driven to [MJ’s] address in a silver Hyundai which is owned by one of his associates. He had with him a Molotov cocktail and a [.22 sawn-off Remington brand bolt action rifle] that he had obtained from an associate some time before. [The applicant] is a ‘prohibited person’, because less than 5 years have passed since he was subject to a [community correction order] with a supervision element [charge 5 — prohibited person in possession of firearm].
19. He threw the Molotov cocktail up the driveway of [MJ’s] address. The device failed to explode, however caused some impact damage to the rear quarter panel of [BR’s] car [charge 4 — attempted arson].
20. Later examination of the device revealed it to have been constructed from a small Coca-Cola bottle filled with petrol containing trace levels of kerosene, suggestive of a solvent or firelighters having been added. The bottle also contained 9 small rubber blocks, which were likely to have been added to thicken the liquid and produce an improvised napalm. The resulting substance inside the bottle was thicker and burns for longer than petrol alone and would tend to adhere to surfaces. Protruding from the bottle was a rag coated in petrol, also mixed with kerosene. The rag was scorched, which was suggestive of it having blown out when it was thrown.
21. After throwing the Molotov cocktail, [the applicant] then fired two shots at [MJ’s] address. The first shot hit the guttering and the second entered the lounge room window, travelled through the lounge room wall and became embedded in the wardrobe of the adjacent room, which was a bedroom occupied by [MJ’s] grandmother [charge 6 — discharging a firearm at premises]. [MJ] and [BR] were both at the Lalor Crescent house at the time of this incident.
22. At approximately 9:30 pm on 23 February 2019, [BR] was driving to [MJ’s] address when he observed the [applicant’s] vehicle close by. He travelled to [MJ’s] address to inform her of what he had seen and a short time later, left to locate the vehicle. He found it at the intersection of Vineyard Road and Elizabeth Drive in Sunbury and noted down the registration number to provide to police.
23. On around 10 February 2019, [the applicant] had obtained a GPS tracking device, into which he had initially inserted a sim card associated with a mobile phone number registered in his name. On 24 February 2019, he put a sim card registered in another name into the device, and affixed it to [BR’s] vehicle at some point between 24 February 2019 and 4 March 2019.
24. At approximately 5:30 pm on 4 March 2019, the [applicant] travelled to [BR’s] street and waited a short distance away. He then left the scene, returning around 2 hours later and parking in the same vicinity, CCTV from nearby houses capturing the vehicle’s movements. A nearby resident took down his registration, and called police after observing that the [applicant] had been sitting in his vehicle for about 20 minutes, taking pictures.
25. [BR] arrived home at around 7:40 pm and saw the [applicant’s] vehicle. The [applicant] then drove off at speed. This was also captured by CCTV from nearby houses.
26. The [applicant’s] phone had received 36 messages from the sim card in the GPS device on 4 March 2019.
27. At 3:00 am on 7 March 2019, [the applicant] again attended at [BR’s] address and loitered in the area for approximately 30 minutes. CCTV from nearby addresses captured his car moving towards [BR’s] address at 3:35 am.
28. The [applicant] then fired shots at [BR’s] address, hitting the garage roller door and passenger side rear panel of [BR’s] vehicle, which had been parked in the driveway [charge 7 — discharging a firearm at premises and vehicle].
29. [BR] was in the house, asleep. His mother, [‘MM’], had been awake at the time of the shooting and called triple zero. Police attending in response to the call were unable to locate any damage, however [MM] discovered a bullet hole in the garage door later that morning, and crime scene officers found a fragment of a fired bullet in the internal far wall of the garage. A fired shell casing was found later that night in the gutter outside the address.
30. On 11 March 2019 at 4:30 am, the [applicant] again drove to [MJ’s] address, CCTV from nearby houses capturing his vehicle approaching the address with the headlights off.
31. At 4:45 am, he stopped outside [MJ’s] address and fired a shot from a firearm. The shot hit the garage roller door [charge 8 — discharging a firearm at premises]. [BR] and [MJ] were in the house, and [MJ] heard a loud noise during the night but did not think anything of it at the time. The damage was discovered the following day.
32. The [applicant’s] phone had received 15 messages from the sim card in the GPS device on this date.
33. Between 4 January 2019 and 11 March 2019, [the applicant] stalked both [MJ] and [BR] by keeping both under surveillance (including, in [BR’s] case, by the use of the GPS tracker), telephone contact with [MJ], cutting the brake lines on [BR’s] car, throwing the Molotov cocktail at [MJ’s] residence and firing shots at both their residences [charges 1 and 2 — stalking].
Investigations and police interview
34. Police arrested the [applicant] on 22 March 2019 near his address and executed a search warrant at his home. They discovered inside his bedroom:
(a) A .22 sawn-off Remington brand bolt action rifle in a backpack in the wardrobe. The rifle had been cut down to an overall length of 500 mm. It had a magazine with a 3-cartridge capacity. A black face mask, latex gloves and bottles of alcohol spray were also located in the backpack;
(b) In a safe, a handwritten note containing [BR’s] address; and
(c) In a tool box, an empty GPS tracker box.
35. The [applicant] was transported to Fawkner police station for interview. When informed police were investigating firearms incidents in Sunbury, he said that he had been in a relationship with [MJ] since ‘a good year or two ago’ but that it had started to go downhill ‘towards the start of this year,’ (A41-44) when she ‘turned around and… [had] gone behind my back and started seeing someone else and I’ve got a bit angry’ (A38). He said he felt ‘used’ and ‘taken for granted’ (A52) and said he had driven past her house in his car (A141) on 28 January 2019 and thrown a Molotov cocktail and let ‘a (single) shot off as a warning shot’ (A89-96, 108-109) being a warning ‘not to take people for granted’ (A54-55). He said it was ‘aimed upwards’ and wasn’t meant to hit anything, but he didn’t see where it hit (A126-128, 695). He said on the way back home he regretted what he had done (A98), and said it had been ‘a few months’ since he had had contact with [MJ] (A62).
36. He initially denied tampering with [BR’s] brake lines (A65-66, 161-162) and planting the letter from ‘Emily,’ saying he was ‘at a friend’s house’ that day (A71-78, 171). He admitted being in the Sunbury area on 4 March 2019, but said he was sitting on Burge Drive on the phone to his sister, who lived in the area (on a street he couldn’t remember the name of) (A237-245). He admitted seeing [BR] that day but said that he didn’t know his address (A274-276). When police informed him of the note they had found with [BR’s] address, he first said that a friend had found out where [BR] lived, but that he (the [applicant]) hadn’t done anything, and thought he’d thrown out the note (A276-278, 290-293).
37. He initially denied having been involved in the shooting on 7 March 2019, and when shown CCTV stills of his vehicle in the area, said they depicted a completely different car and that he would have been at home (A306-325).
38. However, he later admitted having committed that offending (A349), but said he had only fired one shot (A423-426).
39. He also then admitted that he had written the note containing [BR’s] address (A400-401).
40. He said he could not ‘one hundred percent remember’ the second shooting incident at [MJ’s] address, but did not deny he was the perpetrator (A428-454). He said it was likely he would have been using drugs (ice), given the time of the morning when the shooting occurred (A443-445, 483).
41. He said there may be Xanax at his house but he had not been on it for around 6 months and would have ‘just had them there’ (A485-487).
42. He said the face mask found with the gun was to disguise his face (A493).
43. During a suspension of the interview, the [applicant] was placed in a cell at the station. Two covert operatives were also placed in the cell and engaged the [applicant] in conversation, which the operatives recorded. [the applicant] informed the covert operatives that:
(a) He had let a couple of ‘shots off’ at someone’s house because his ex-partner started seeing someone else and hadn’t told him. He had been driven to the house in a ‘mate’s missus’ car’ and had covered the registration plates with rags;
(b) He had cut the brake lines of the new partner’s car with side cutters. While doing this, he saw lights on top of a car, which he assumed was a ‘divvy’ (van) but police did not see him;
(c) He later purchased a GPS tracker online, which he attached to the new partner’s car when it was parked at [MJ’s] address. He used the data from the GPS to determine where the new partner lived, because he was ‘that determined’. The tracker was still attached to the car, and he had been watching the partner for ‘a few months’ and was ‘always one step ahead of him’;
(d) After discovering the address, he shot at the new partner’s house on two occasions. He had been chased from the address by the new partner on the night of the first occasion, so he returned and ‘let off a few at his house’, shooting into the car, garage and window. He knew someone was home because the lights were on, and he felt the adrenalin straight away. On the second occasion he shot into the garage;
(e) He had used his own car on the two occasions he had shot at the new partner’s house because he ‘couldn’t be fucked’ trying to source another car, but on at least one of the shooting occasions he had turned off his phone so that the last ‘ping’ would be in the Melton area. After turning his phone back on, he checked the GPS app and found that [BR] was driving around his own housing estate looking for him;
(f) He had committed all the shooting offending using the same firearm, which he had obtained when he swapped it in exchange for a firearm he already had in his possession. He had swapped because the original firearm was too large to conceal in a backpack. The firearm came with some ammunition, and he had obtained further ammunition from a friend with a gun licence;
(g) He was not able to go back to the new partner’s address ‘for a little while’, but that his next move was to blow up the new partner’s car with a ‘fertiliser bomb’. He provided the operatives with substantial detail on how to build such a bomb, saying he had done research, and that he had backups of his research material, including the ‘Anarchist’s Cookbook’ on USB devices in his bedroom. He said such a bomb would cause an explosion which would properly blow up the vehicle;
(h) He said he would wait if he was going to do anything again, and would use a stolen vehicle, leaving his own car parked under cameras at his house. He expressed an intention to continue to target the new partner, saying he would ‘terrorise the cunt’;
(i) He admitted to methylamphetamine use, but said he had cut down. He said he had ‘puffed’ at the time of the offending, and had a ‘celebration pipe’ afterwards.
44. As a result of the information disclosed to the operatives, police searched [BR’s] vehicle and located the GPS tracking device under the rear bumper.
45. Police then obtained a further search warrant for the [applicant’s] address and located and seized 2 Xanax tablets [charge 9 — possessing a drug of dependence] and a number of USB devices in a tool box in the [applicant’s] bedroom.
46. The interview was then recommenced. The [applicant] then admitted to cutting [BR’s] brake lines with industrial scissors from his work, saying he believed [MJ] was going to be using that vehicle and his intention was to prevent her from being able to do so (A521-656).
47. When informed police had located the GPS tracker box, he admitted having affixed it to [BR’s] car while it was at [MJ’s] address, in order to find out where he lived. He denied keeping track of where [BR] was after discovering the address (A593-629).
48. He initially said the USB sticks that had been seized had ‘movies and maybe photos… nothing bad’ on them, later admitting they may have contained ebooks showing how to make bombs (A632-654, 662-666). He denied intending to make a bomb, saying he was ‘just intrigued by… science and chemistry’ (A642). The USB devices were analysed and contained nothing of relevance to the investigation, however the accused’s phone contained, inter alia:
(a) A GPS tracker user manual;
(b) Documents titled the Anarchist Cookbook, Anarchy Cookbook, Home Workshop Explosive, Hazardous Substance Fact Sheet; and
(c) A Remington firearm user manual.
We pause at this juncture to note that the applicant’s acts in firing shots at MJ’s premises on 28 January and 11 March 2019 (the subject of charges 6 and 8), and at BR’s premises and vehicle on 7 March 2019 (charge 7), were perpetrated as part of a much wider course of conduct — embracing a number of other criminal acts — which constituted the stalking charges (charges 1 and 2).
The challenge to the convictions on charges 6, 7 and 8
In seeking to mount a challenge to the applicant’s convictions on charges 6, 7 and 8 — discharging a firearm at a premises or vehicle — counsel for the applicant submitted that it is impossible to avoid double punishment in sentencing the applicant on the one hand for stalking on charges 1 and 2, and on the other, for the ‘aggravated charge’ of discharging a firearm under s 131A(2) of the Firearms Act 1996. Once conviction and sentence are imposed for stalking, counsel submitted, the applicant has been punished for that offence. The offence in s 131A(2) has a higher maximum penalty than that for the offence of discharging a firearm simpliciter under s 131A(1). Aggravation on account of the commission of the stalking follows inextricably from conviction on the offence under s 131A(2), and sentence by reference to the higher maximum penalty. Hence, the convictions on charges 6, 7 and 8 should be set aside, and convictions under s 131A(1) of the Firearms Act 1996 substituted[9] (with a corresponding reopening of the sentencing discretion).
[9]See Criminal Procedure Act 2009, s 277(1)(c)(ii), which was amended in response to Riley v The Queen [2015] VSCA 259, [19] (Priest and Kaye JJA).
The applicant’s challenge to the convictions on charges 6, 7 and 8 does not withstand scrutiny.
In our view, the very essence of the offence created by s 131A(2) of the Firearms Act 1996 is that the relevant act of discharging a firearm at a premises or a vehicle is carried out while concomitantly carrying out an act (or acts) as part of another serious indictable offence. So much is plain from the words of the subsection. Section 131A provides (so far as presently relevant):[10]
[10]Emphasis added.
131A Offence to discharge firearm at a premises or vehicle
(1) A person must not, with reckless disregard for the safety of any person, use a firearm to discharge a shot, bullet or other missile at a vehicle, vessel, aircraft, or premises.
Penalty: 15 years imprisonment.
(2) A person who, with reckless disregard for the safety of another, uses a firearm to discharge a shot, bullet or other missile at a vehicle, vessel, aircraft, or premises, while carrying out a serious indictable offence, is guilty of an offence and liable to a term of imprisonment not exceeding 20 years.
…
By virtue of s 131A(4), the term serious indictable offence has the same meaning as in s 325 of the Crimes Act 1958. In turn, s 325(6) of the Crimes Act 1958 provides that a serious indictable offence is ‘an indictable offence which, by virtue of any enactment, is punishable on first conviction with imprisonment for life or for a term of five years or more’. Since the offence of stalking under s 21A of the Crimes Act 1958 carries a maximum penalty of 10 years’ imprisonment, it qualifies as a ‘serious indictable offence’ for the purposes of s 131A(2).
In order to resolve the issues raised by the present ground it is also necessary to have regard to the provisions of s 51 of the Interpretation of Legislation Act1984 (‘the Interpretation Act’) and to common law principles.
Section 51 of the Interpretation Act provides:[11]
[11]Emphasis added.
51 Provisions as to offences under two or more laws
(1) Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.
(2) In subsection (1) law means—
(a)an Act or a provision of an Act;
(b)a subordinate instrument or a provision of a subordinate instrument; or
(c)common law.
Thus, where an offender has committed an act (or omission) which constitutes an offence under more than one law, he or she may (unless the contrary intention expressly appears) be prosecuted under one or more of those laws, but cannot be punished more than once for the same act (or omission).
Pearce[12] spells out the position at common law. In that case, the High Court found that the appellant had been subjected to double punishment, in circumstances where he was convicted and sentenced for both malicious infliction of grievous bodily harm, and breaking and entering a dwelling-house and inflicting grievous bodily harm therein. McHugh, Hayne and Callinan JJ set out the relevant principles as follows:[13]
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
In the present case we need not decide whether this result is properly to be characterised as good sentencing practice or as a positive rule of law. There is nothing in s 33 or 110 of the Crimes Act more generally which suggests that Parliament intended that an offender such as the appellant should be twice punished for his inflicting grievous bodily harm on his victim. Nor do we consider that any such intention can be gathered from s 57 of the Interpretation Act 1987 (NSW).[[14]] As stated above, that section merely supplements and does not supplant the practice or rule with which we now deal.
It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by ‘excessive subtleties and refinements’. It should be approached as a matter of common sense, not as a matter of semantics.
[12]Pearce v The Queen (1998) 194 CLR 610 (‘Pearce’).
[13]Ibid 623 [40]–[42] (citations omitted; emphasis added).
[14]Section 57 provided:
If an act or omission constitutes an offence under both:
(a) an Act or statutory rule, and
(b) a law of the Commonwealth or a law of some other State or Territory,
and a penalty has been imposed on the offender in respect of the offence under a law referred to in paragraph (b), the offender is not liable to any penalty in respect of the offence under the Act or statutory rule referred to in paragraph (a).
Sessions[15] was cited in the course of oral argument on the ground now under consideration. In that case, the applicant had been convicted of both rape (count 1) and recklessly causing serious injury (count 2) arising from the single act of pushing his index finger once into the vagina of the infant victim causing part of her intestine to be extruded through the vaginal opening. The applicant was sentenced to three years’ imprisonment on the count of rape and to five years on the count of recklessly causing serious injury. One year of the sentence for rape was ordered to be served cumulatively on the sentence on the other count, resulting in a total effective sentence of six years’ imprisonment, upon which a non-parole period of three and a half years was fixed. On appeal, this Court (Hayne and Batt JJA, and Eames AJA) held that no conviction should have been recorded on the second count. Hayne JA — with whose reasons Batt JA agreed,[16] and Eames AJA ‘generally’ agreed[17] — was prepared to assume for the sake of argument that s 51 of the Interpretation Act permitted prosecution of the applicant for either or both of the offences of rape and recklessly causing serious injury, but forbade punishing him more than once for the ‘same act or omission’. The Sentencing Act 1991 made it plain that the recording of a conviction is part of the punishment meted out to an offender. Thus, ‘if the basic principle is that a single act or omission should not give rise to multiple punishments, convictions should not be recorded on both counts’.[18]
[15]R v Sessions [1998] 2 VR 304 (‘Sessions’).
[16]Ibid 316.
[17]Ibid.
[18]Ibid 312–3.
Bradley[19] was also cited during oral argument. In that case, the applicant — who fitted the description of a suspect for whom police were looking — was spoken to by police officers whilst he was walking in a suburban street. Rather than stopping, the applicant pulled a gun from his pants and fired five shots in the direction of a police officer, Mr Saw, who then returned fire. One of the applicant’s five bullets caused a graze to Mr Saw’s shin. A jury convicted the applicant of both reckless conduct endangering life (count 3) and intentionally causing injury (count 4). Maxwell P (with whom Bongiorno JA and Ross AJA agreed) held that the applicant should not have been convicted of both charges. He said:[20]
It can be seen from the summary of the circumstances that the conduct which supports the count of reckless conduct endangering the life of the officer, Mr Saw, is the same as the conduct which supported the count of intentionally causing injury to him. The applicant should not have been convicted on both counts.[21] The fact that the sentence imposed on count 4 was made wholly concurrent with the sentence imposed on count 3 does not alter the fact that the applicant was doubly punished.[22]
[19]Bradley v The Queen [2010] VSCA 70 (‘Bradley’).
[20]Ibid [13] (citations as in original).
[21]R v Sessions [1998] 2 VR 304 at 313–4 (Hayne JA), 323 (Eames AJA).
[22]Pearce v The Queen (1998) 194 CLR 610.
Although the Court in Bradley did not allude specifically to s 51 of the Interpretation Act, reference was made to Sessions — in which, as we have observed, s 51 was discussed — and Pearce. Bradley must, we think, be seen as turning on its own facts. The Court appears to have taken the view in that case that there was a single act which comprised the firing of five shots. Presumably, the Court would have reached a different conclusion had it taken the view that the firing of five shots constituted five separate acts, one of which caused injury to the victim, and four of which otherwise endangered his life.
Counsel for the applicant also relied on Lecornu,[23] a case in which the appellant had been convicted and sentenced for both child pornography offences and breaches of an extended supervision order under the Serious Sex Offenders Monitoring Act 2005 (‘the Monitoring Act’). Significantly, the conduct in each case giving rise to the two child pornography offences was the same conduct which gave rise to the corresponding two breach offences. A submission that the rule against double punishment had been infringed (both at common law and under s 51 of the Interpretation Act) was unsuccessful. The Court held that the legislature plainly had contemplated that, where a relevant condition of the Monitoring Act was breached, two distinct offences would have been committed.[24]
[23]Lecornu v The Queen & Anor (2012) 36 VR 382.
[24]Ibid [65] (Maxwell P).
Applying the language of s 51, the focus in a case such as the present must be on the act (or omission) said to constitute the offence. If the act (or omission) might constitute an offence under two or more laws then a person may be prosecuted under either or any or all of those laws, so long as he or she is not punished more than once for the same act (or omission). It may not always be an easy task to determine whether there is a single act (or omission), or more than one act (or omission), that constitutes a breach of more than one law. Sometimes, perhaps often, the task will not be straightforward and will involve fine analysis. As Pearce makes clear, however, the identification of a single act as common to two offences should not be attended by ‘excessive subtleties and refinements’, and should be ‘approached as a matter of common sense, not as a matter of semantics’.[25]
[25]Pearce, 623 [42] (McHugh, Hayne and Callinan JJ) (citation omitted).
To be guilty of stalking under s 21A of the Crimes Act 1958, a person must engage in a course of conduct with the intention of causing physical or mental harm to the victim, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person. The relevant course of conduct may include a variety of acts. Thus, s 21A(2) provides:
(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following—
(a) following the victim or any other person;
(b) contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever;
(ba)publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material—
(i) relating to the victim or any other person; or
(ii) purporting to relate to, or to originate from, the victim or any other person;
(bb) causing an unauthorised computer function (within the meaning of Subdivision (6) of Division 3) in a computer owned or used by the victim or any other person;
(bc) tracing the victim's or any other person's use of the Internet or of e-mail or other electronic communications;
(c) entering or loitering outside or near the victim's or any other person’s place of residence or of business or any other place frequented by the victim or the other person;
(d) interfering with property in the victim’s or any other person’s possession (whether or not the offender has an interest in the property);
(da) making threats to the victim;
(db) using abusive or offensive words to or in the presence of the victim;
(dc) performing abusive or offensive acts in the presence of the victim;
(dd) directing abusive or offensive acts towards the victim;
(e)giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;
(f) keeping the victim or any other person under surveillance;
(g) acting in any other way that could reasonably be expected—
(i) to cause physical or mental harm to the victim, including self-harm; or
(ii) to arouse apprehension or fear in the victim for his or her own safety or that of any other person—
with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person.
The course of conduct engaged in by the applicant in the present case between 4 or 5 January and 11 March 2019 with the intention of causing physical or mental harm to MJ and BR, or of arousing apprehension or fear for their own and each other’s safety, included threatening and abusive text messages; surveillance; attaching a note to MJ’s door; loitering near MJ’s and BR’s residences; cutting the brake lines of MJ’s car; throwing the petrol bomb; and, significantly, firing shots on three occasions. Importantly, each of the applicant’s individual acts in using a firearm to discharge bullets at MJ’s premises (on 28 January and 11 March 2019, charges 6 and 8), and at BR’s premises and vehicle (on 7 March 2019, charge 7), were part of a course of conduct which involved not only the discharge of bullets on those three occasions, but also a host of other disparate, though connected, acts. Moreover, for the purposes of charges 6, 7 and 8, the ‘serious indictable offence’ contemplated by s 131A(2) of the Firearms Act1996 that the applicant was ‘carrying out’ when he used the firearm in each case to discharge a bullet at the relevant premises or vehicle was the stalking embraced by charges 1 and 2.
In those circumstances, it is plain that s 51 of the Interpretation Act permitted the applicant to be ‘prosecuted’ under s 131A(2) of the Firearms Act 1996 for the ‘act’ of using the firearm in each case to discharge a bullet (or bullets) with the relevant intent, and also to be ‘prosecuted’ for stalking under s 21A of the Crimes Act 1958, where that ‘act’ of discharging the firearm in each case was also an ‘act’ which was part of a series of acts establishing the proscribed course of conduct. What s 51 did not permit, however, was the applicant to be ‘punished’ more than once for the ‘same act’.
Furthermore, for the purposes of the common law, the applicant’s ‘act’ of using the firearm in each case to discharge a bullet (or bullets) was not a wholly common element of the offence and s 131A(2) of the Firearms Act 1996 and stalking under s 21A of the Crimes Act 1958. For the purposes of charges 6 to 8, it was necessary for the prosecution to prove that, while carrying out the offence of stalking, the applicant used the firearm to discharge a bullet (or bullets) at the relevant premises or vehicle, ‘with reckless disregard for the safety of any person’. For the purposes of charges 1 and 2, however, it was necessary for the prosecution to prove that the applicant engaged in a course of conduct — only one aspect of which was the act of using the firearm to discharge a bullet (or bullets) at the relevant premises or vehicle — with the intention of causing physical or mental harm to MJ and BR, or of arousing apprehension or fear for their own or each other’s safety.
For these reasons the proposed ground of appeal touching conviction is without substance. It would therefore be futile to grant the extension of time sought by the applicant.
Sentence ground 1(a): Double punishment
Under cover of ground 1(a), the applicant’s counsel submitted that, despite the judge acknowledging the ‘overlap’ between the conduct constituting the stalking for the purposes of charges 1 and 2 with the conduct constituting charges 3, 4, 5, 6, 7 and 8, the sentence imposed by the judge doubly punished the applicant.
We do not agree.
In the course of dealing with the challenge to the convictions on charges 6, 7 and 8, we discussed the principles informing the resolution of a complaint of double punishment.[26] It is unnecessary to repeat them.
[26]At [13] and following.
We consider that the judge was astute to avoid double punishment. In her reasons for sentence she spelled out her approach as follows:
… I make it plain that I am very conscious that the charges involving possession and discharging of the firearm are also part and parcel of the stalking charges and I am mindful of the necessity not to impose double punishment, as well as applying the principle of totality, in order to arrive at an overall just sentence.
Charge 5, being a prohibited person possessing a firearm should not be treated more seriously because that firearm was discharged in association with other criminal activity. This is because that other criminal activity (Charges 1 and 2, and Charges 6, 7 and 8) will be the subject of separate punishment. It is also relevant to take into account that you have no previous criminal history relating to the illegal use of firearms which would cause the Court to consider this to be a more serious example of the charge of being a prohibited person in possession of a firearm. Although the possession charge is a distinct offence, in the context of this case, in order to avoid double punishment, I consider that only very modest cumulation is warranted in relation to Charge 5.
The analysis of the issue of the avoidance of double punishment is somewhat more complex in relation to the stalking offences on the one hand (Charges 1 and 2) and the discharging of the firearm offences on the other hand (Charges 6, 7 and 8). ... While it is clear that the conduct in twice discharging the firearm into the premises of [MJ] forms part of the conduct comprising the offence of Stalking (Charge 1), it is the essence of the offences of discharging a firearm (Charges 6 and 8), which, by their nature, include the aggravating factor that such discharge took place whilst carrying out stalking (a serious indictable offence). The same reasoning applies to the stalking offence of which [BR] is the victim (Charge 2) and the offence of discharging a firearm at his premises and vehicle (Charge 7). I consider that a greater degree of cumulation is warranted on the offences of discharging a firearm than is the case with Charge 5.
In determining the cumulation for the discrete offences of criminal damage (Charge 3) and attempted arson (Charge 4), I have taken into account that they also form part of the stalking.
We detect no error in the judge’s stated approach. Moreover, the orders for cumulation between the sentences on the individual charges do not disclose error.
In our view, although there was an overlap in the conduct which constituted both the stalking charges, charges 1 and 2, cumulation of 18 months of the sentence on charge 2 upon the sentence on charge 1 gave appropriate recognition to the fact that, although to a large extent there was a commonality of conduct giving rise to the stalking charges, there were two separate victims whom the applicant intended to put in fear. The harm to each of them needed to be given appropriate recognition in the sentence imposed.
Further, we consider that the orders for cumulation between the sentences on all other charges do not have the effect of doubly punishing the applicant. The very moderate orders for cumulation — in particular, on charges 6, 7 and 8 — demonstrate that the judge considered that the conduct upon which they were based was largely subsumed with the conduct making up charges 1 and 2. Insofar as they represented distinct instances of criminality, however, there needed to be some cumulation between the sentences imposed on each of them.
In our opinion, there is nothing in the complaint that the judge doubly punished the applicant.
Ground 1(a) cannot be upheld.
Sentence grounds 1(b) and 2: Totality and manifest excess
It is convenient to consider the submissions advanced in support of the complaint embodied in ground 1(b) — that the judge gave insufficient weight to the principle of totality — in tandem with the complaint that the sentence imposed is manifestly excessive.
In our view, neither complaint has substance.
Charges 1 and 2 were very serious examples of stalking. The applicant’s offending did not represent a sudden visceral or emotional response to a situation that presented itself, or a momentary or short-lived error of judgment. Instead, the applicant’s conduct was protracted — spanning in excess of nine weeks — and involved the extensive planning of activities calculated to terrify the two victims by a variety of different means, including by ongoing harassment and intimidation; firing shots from a firearm on three occasions; taking photographs; conducting surveillance; and, disturbingly, tampering with car brakes. In those circumstances, the judge was required to impose appropriately severe sentences on each charge in order to reflect the objective gravity of the offending. Furthermore, as we have said, it was necessary for the judge to effect an adequate measure of cumulation between the sentences imposed on each charge so as to give recognition to the harm caused to the two separate victims. We are unable to see that the 18 months’ cumulation of the sentence on charge 2 ordered to be served on the first charge is other than within the sound bounds of discretion.
We are also unable to see that the individual sentences on charges 6, 7 and 8 are other than proportionate to the seriousness of the applicant’s offending. It is an inherently serious offence to discharge a firearm into premises or vehicles with a reckless disregard for the safety of others. And it will be remembered that, for the purposes of charge 6, the second bullet fired by the applicant travelled through the lounge room wall of the residence and became embedded in the wardrobe of the adjacent bedroom, occupied by MJ’s grandmother, in circumstances where both MJ and BR were present in the premises at the time. It was a very serious offence indeed.
Further, we do not consider that any legitimate criticism can be levelled at the sentences on charges 3, 4 and 5. To our minds, the circumstances of charge 3, which involved cutting the brake lines on MJ’s car, were disturbing, as were the circumstances of charge 4, which involved the deployment of a makeshift napalm bomb. And if anything, the only vice that the sentence on charge 5 (being a prohibited person in possession of a firearm) suffers from, is that it is unduly lenient.
Moreover, as we have endeavoured to indicate, we cannot see that the orders for cumulation were anything other than proper. They certainly have not produced a total effective sentence that infringes the principle of totality, or is otherwise manifestly excessive. The total effective sentence is well within the available range. Indeed, when one considers the extremely serious circumstances of the campaign of terror that the applicant unleashed upon his hapless victims and maintained over a nine-week period, it is difficult to view the total effective sentence as being anything other than entirely just. Self-evidently, the non-parole period is completely orthodox.
Finally, it is notable that, under cover of ground 2, counsel for the applicant did not press any particular matters in mitigation of the 28-year-old applicant’s sentence.
Grounds 1(b) and 2 are without substance.
Conclusion
The application for an extension of time within which to make application for leave to appeal against conviction, and the application for leave to appeal against sentence, must both be refused.
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