BIRNIE v POLICE - [2006] SASC 263

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BIRNIE v POLICE
[2006] SASC 263
Judgment of The Honourable Justice Duggan
31 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
POST AND TELECOMMUNICATIONS - TELEPHONIC AND RELATED SERVICES - OFFENCES
Appellant pleaded guilty to three counts of using a telephone in a harassing manner contrary to s 474.17(1) of the Criminal Code 1995 (Cth) - two counts alleged appellant made forty-two calls to two women who were unknown to the appellant during which appellant would stay on the line and say nothing - other count alleged single phone call to one of the victims during which appellant said calls would cease if he could listen to her having sex over the phone - magistrate imposed single sentence of 12 months imprisonment and ordered appellant be released after six months - release conditional upon appellant entering into two year good behaviour bond - appeal against sentence - whether sentence was manifestly excessive - where calls caused considerable distress to both victims - where appellant had long history of severe personality disorder and extensive criminal history - where maximum custodial sentence available to magistrate was three years imprisonment - sentence was not manifestly excessive - whether magistrate erred in not exercising discretion pursuant to ss 20(1)(a) or 20(1)(b) Crimes Act 1914 (Cth) to allow immediate release of appellant - whether magistrate gave insufficient weight to appellant's prospects of rehabilitation - where appellant commenced limited employment and psychiatric therapy after offences were committed - where treating psyciatrist expressed view that imprisonment would have adverse effect on appellant's rehabilitation - found, not inappropriate for magistrate to direct that part of the sentence be served - treatment would only be interrupted for brief period - magistrate entitled to take into account elements of general and personal detterence - Held: Appeal dismissed.
Crimes Act 1914 (Cth) s 20; Criminal Code 1995 (Cth) s 474.17, referred to.

BIRNIE v POLICE
[2006] SASC 263
Magistrates Appeal

DUGGAN J. This is an appeal against a sentence imposed in the Adelaide Magistrates Court.
The appellant pleaded guilty to three counts of using a telephone in such a way that reasonable persons would regard its use as being harassing, contrary to s 474.17(1) of the Criminal Code 1995 (Cth).
It was alleged that the appellant made forty-two calls to each of two women. The calls were made to separate residences occupied by the women, who were unknown to the appellant. The appellant was also charged with a separate telephone call to one of the women, during which he told her that the calls would stop if he could listen to her over the telephone while she was having sex.
The appellant was sentenced to a single sentence of 12 months imprisonment for the three offences. Pursuant to s 20 of the Crimes Act 1914 (Cth), the magistrate ordered that the appellant be released after serving a period of imprisonment for six months. The release was made conditional upon the appellant entering into a recognisance in the sum of $50.00 to be of good behaviour for a period of two years. The terms of the release also require that the appellant be subject to supervision and that he undergo psychiatric treatment coupled with a programme for anger management.
The grounds of appeal are:
1The penalty was manifestly excessive in all the circumstances.
2The Learned Trial Magistrate fell into error in failing to exercise his discretion pursuant to Section 20(1)(a) and/or 20(1)(b) of the Crimes Act 1914 as amended by not allowing the immediate release of the defendant.
3The Learned Trial Magistrate failed to give sufficient weight to the issue of rehabilitation in sentencing of the defendant.
HZ, the victim in two of the counts, was 58 years of age at the time of the offences. The other victim, BY, was 81 years of age. The telephone calls were made in the early hours of the morning. On most occasions the appellant said nothing. When the victims hung up, he would ring again.
The telephone calls caused considerable mental distress to the victims. HZ said that the calls would go on for about an hour, with her picking up the telephone receiver and then hanging up until she finally left the telephone off the hook. She did not like leaving the telephone off the hook as her mother was 82 years of age, and the victim wanted to make sure that she could be contacted if anything happened to her mother. The telephone calls caused arguments between HZ and her husband. They prevented her from sleeping. She consulted her doctor who prescribed sleeping tablets and anti-depressants. She became frightened and insecure.
BY said that the calls would come between 1.00 am and 6.00 am. They would go on for several days. There would be a lull and then they would start again. She said that usually they would last until she took the telephone off the hook. She became frightened, fearing someone was stalking her. She said she suffered severe stress and her health deteriorated. She lost a considerable amount of sleep, anticipating that calls would be made to her.
Dr Branson, a psychiatrist, examined the appellant at the request of the appellant’s solicitor. Dr Branson stated in his report that the appellant has a long history of severe personality disorder. He has had a number of admissions to psychiatric hospitals as a result of this disorder, and is in receipt of a disability support pension. Dr Branson referred to the sexual motivation which led the appellant to commit these offences. The appellant told Dr Branson that he was in the habit of masturbating while listening to female voices over the telephone. He told Dr Branson that he had done nothing wrong, and that it was not his problem that the telephone calls caused distress to the victims. He said he made the telephone calls when he became sexually frustrated.
It is clear from Dr Branson’s report that the appellant has had a disrupted family life. Dr Branson said that the appellant could create a management problem in the prison system, as he had done in Western Australia. Dr Branson expressed concern that a prison sentence would prevent the appellant from continuing the therapeutic relationship which he had developed with Dr Branson.
The maximum penalty for this type of offence was increased as from 1 March 2005. The maximum penalty is now imprisonment not exceeding three years, or a fine of $19,800, or both. Previously, the maximum custodial penalty was imprisonment for 12 months. When dealt with summarily, the maximum penalty is imprisonment for 12 months, or a fine of $6,600, or both.
The maximum custodial penalty available to the magistrate in the present case was imprisonment for three years. The offences were numerous and the offending took place over a period of almost a month. The effect on the victims was considerable. The appellant has an extensive criminal record and cannot expect the leniency extended to a first or infrequent offender.
Offences of this nature are difficult to detect. The legislature’s assessment of the seriousness of this type of offence is evident from the recent increase in the maximum penalty. Due consideration must be given to the personal circumstances of the appellant, but the sentence imposed was well within the appropriate range of penalties for offences of this nature. In my view, the sentence was not manifestly excessive.
The remaining grounds of appeal can be dealt with together. According to the argument advanced on behalf of the appellant, the magistrate erred in directing that the appellant should serve a period of imprisonment for six months. It was said that the magistrate gave insufficient weight to the rehabilitation of the appellant and the fact that he was undergoing therapy with Dr Branson.
Dr Branson gave evidence before the magistrate. I have referred to the diagnosis set out in his report. He stated that the appellant was not psychotic, but that he suffered from a severe personality disorder. He referred to the role which the appellant’s disrupted family life was likely to have played in the development of this disorder.
Dr Branson expressed the view that little was to be gained by imprisoning the appellant. He said that imprisonment would remove the appellant from the therapeutic contact which the appellant had with him.
Mr Kerin, for the appellant, pointed out that the magistrate did not refer to these views of Dr Branson in his sentencing remarks. However, the magistrate had access to Dr Branson’s report and Dr Branson gave evidence before him on the day on which the appellant was sentenced. I do not accept that the magistrate did not give appropriate consideration to the report and the evidence.
The court is given a discretion under s 20 of the Crimes Act 1914 to direct whether a sentence of imprisonment, or a portion thereof, is to be served. The personal circumstances of the appellant and the views expressed by Dr Branson did not render it inappropriate to direct that a part of the sentence should be served.
It is not as though the therapy sessions conducted by Dr Branson had been taking place over a considerable period of time. They commenced after the present offences had been committed, as did the limited employment undertaken by the appellant. The magistrate recognised that the treatment could be of use by including a provision relating to it in the order made pursuant to s 20. The period of imprisonment has the potential to delay the continuation of the therapy for only a short period.
In considering whether to order that a period of imprisonment be served, the magistrate was also entitled to take into account the elements of general and personal deterrence, which are clearly relevant to offences of this nature. No error has been demonstrated in the approach taken by the magistrate in this respect.
The appeal against sentence will be dismissed.