Cavuoto v Reis
[2017] ACTSC 235
•10 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cavuoto v Reis |
Citation: | [2017] ACTSC 235 |
Hearing Date: | 25 July 2017 |
DecisionDate: | 10 August 2017 |
Before: | Penfold J |
Decision: | 1. The appeal is allowed. 2. Noting the conviction recorded in the Magistrates Court, the appellant is re-sentenced to imprisonment for two months. 3. The appellant is to be released immediately upon giving security in the amount of $1,000 by recognizance to be of good behaviour for 12 months. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal from Magistrates Court – appeal allowed – Magistrate confused about sentencing options available to him – Magistrate misconstrued comments in R v Hampson to find that custodial sentence was required – correct reading of R v Hampson is that custodial sentence is not excluded. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sentencing discretion re-exercised – appellant’s actions caused serious distress and fear to the victim – appellant’s previous good character entitles him to some leniency – no sentence other than imprisonment appropriate but no need for immediate full time custody. |
Legislation Cited: | Crimes Act 1914 (Cth), s 20 Criminal Code Act 1899 (Qld) Criminal Code Act 1995 (Cth), ss 474.17, 474.17(1) |
Cases Cited: | Freeman v Pulford (1988) 92 FLR 122 R v Bird (1988) 56 NTR 17 R v Hampson [2011] QCA 132 |
Parties: | Dean Cavuoto (Appellant) David Anthony Reis (Respondent) |
Representation: | Counsel Mr J Sabharwal (Appellant) Ms K McCann (Respondent) |
| Solicitors Sharman Robertson (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 14 of 2017 |
Decision under appeal: | Court: ACT Magistrates Court Before: Special Magistrate Mulligan Date of Decision: 20 February 2017 Case Title: Reis v Cavuoto Court File Number: CC16/11642 |
Introduction
On 20 February 2017, Dean Cavuoto was sentenced in the Magistrates Court on a plea of guilty to using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, harassing (see s 474.17(1) of the Criminal Code Act 1995 (Cth)). He was sentenced to three months imprisonment, to be served in full‑time custody. The maximum penalty for the offence is three years imprisonment.
Mr Cavuoto appealed from the sentence, and was released on bail on 24 February 2017, having spent a total of six days in custody, two after he was arrested and another four between when the sentence was imposed and when bail was granted after the appeal was filed.
The offence
The offence arose out of the failure of a romantic relationship between the appellant and the victim, which began in 2013 and ended in 2014 at the victim’s request. There had been a number of abusive emails sent by the appellant to the victim shortly after the relationship ended, and in July 2016 the victim asked the appellant to stop contacting her, also taking steps to block receipt of email addresses and a phone number associated with the appellant.
On 21 October 2016, the victim received an email from the appellant, complaining about the victim's involvement in a new relationship despite the appellant's continuing feelings for her, and making general threats.
Over the next two weeks, she received further emails making a variety of offensive comments, one of the mildest of which was "You are one of the scumbags of the world", and non-specific threats, including the following:
There will be repercussions for what you've done and it will happen when you least expect it. Keep an eye out, especially when your [sic] back home ... don't ever come back to Canberra to teach because it won't work out well for you.
On two occasions, the victim replied to an email asking the appellant to stop contacting her.
In early November 2016, the appellant was interviewed by police and made detailed admissions, including to the fact that his intention in the emails was to annoy and harass the victim and to "piss her off", after which he was charged with the current offence.
A victim impact statement received in the Magistrates Court described the complainant's initial distress and shock, which quickly developed into constant anxiety as the messages continued and the severity of the threats increased. Eventually, and having regard to some of the specific threats, the victim felt obliged to resign from a permanent teaching position in the ACT, which has affected both her immediate financial position and her career prospects.
The appellant
The appellant is a qualified teacher and has been teaching Physical Education with the ACT Department of Education for some years. He does not use alcohol or illicit substances, is in good health, and has no criminal history.
In the Magistrates Court he tendered supportive letters from his supervisor at Canberra High School, where he teaches, and from a sports scientist who worked at the ACT Academy of Sport while the appellant held a scholarship there in 2001.
He also provided evidence that he had been receiving counselling under an Employee Assistance Program since mid-November last year, and had also begun seeing a psychologist. The psychologist, Noel Eastwood, reported that the appellant "has willingly and enthusiastically participated in all his sessions and is quite distressed and remorseful for his actions". A similarly positive description was provided of the appellant's engagement with the Employee Assistance Program.
The appellant also consented to a domestic violence order in favour of the victim.
Grounds of appeal
The grounds of appeal were as follows:
(a)his Honour's discretion on sentence miscarried on an erroneous application of principle; and
(b)the sentence imposed was manifestly excessive and plainly unjust.
The Magistrates Court hearing
The hearing in the Magistrates Court was slightly unusual, not only because it extended over three days.
On 31 January 2017, submissions were made by the parties, and the Crown indicated that the appellant was entitled to some leniency given his absence of a criminal history and other circumstances, but suggested to the Magistrate that a good behaviour “bond” might appropriately include a community service order. Questioned by defence counsel, the Magistrate confirmed that he was considering a community service order, and adjourned the matter to the following day to allow for a community service assessment.
On 1 February 2017, an assessment of suitability for community service was available, but does not seem to have been considered. Instead, the prosecutor advised that she had reconsidered her position about whether the matter called for a sentence of imprisonment, and gave the Magistrate a copy of the case of R v Hampson [2011] QCA 132 (Hampson). The matter was again adjourned.
On 20 February 2017, further submissions were made. The prosecutor submitted that Hampson was “authority for a relevant sentencing principle in these types of cases”, being that:
where the conduct is threatening and caused genuine fear to the extent to which a person does change their daily activities or make some change to their lives, that it does become a serious offence that requires the denunciation, and that is marked by a term of imprisonment.
The prosecutor went on, however, to say that she would not be heard against any term of imprisonment being suspended.
His Honour then sentenced the appellant to an immediate term of three months imprisonment.
It is notable that his Honour initially expressed the sentence as three months imprisonment plus a 12-month good behaviour order. When it was put to him by both counsel that this was not an available sentence unless the term of imprisonment was to be suspended, his Honour said that he did not intend to suspend the sentence. There was some further discussion about the terms and operation of the Crimes Act 1914 (Cth), at the end of which his Honour decided to "make the matter easier” by abandoning the good behaviour order.
Appeal ground (a)
Appeal ground (a) relies on the proposition that his Honour, having apparently previously considered that the offence would be adequately dealt with by a community service order (possibly attached to the suspension of a term of imprisonment), incorrectly saw Hampson as authority for the proposition that the offence was such as to require the appellant to serve a period of full-time custody.
The relevant judgment in Hampson was given by Muir JA, with whom White J agreed. It involved an offender being sentenced for four offences, two of which related to child exploitation offences under the Criminal Code Act 1899 (Qld), and two of which involved offences of using a carriage service in an offensive way under s 474.17 of the Commonwealth Criminal Code, the same provision under which the appellant in this case was sentenced.
The appellant in Hampson had been sentenced to three years imprisonment (the maximum penalty despite his pleas of guilty) for each of the carriage service offences, which were undoubtedly significantly more offensive than the messages sent by the appellant in this case. On appeal, the Queensland Court of Appeal reduced the sentences to two years imprisonment each and ordered the appellant (who had already served some seven months in custody) to be released immediately on a two-year recognizance.
Muir JA said, at [37]:
Counsel for the applicant observed, correctly, that the schedule of cases provided by the respondent listing sentences for offences under s 474.17(1) revealed, at least as a general proposition, that custodial terms of imprisonment were imposed only on offenders whose conduct was threatening or which caused genuine fear. The list contained only one offence of misuse of the Internet, Agostina v Cleaves. In that case, the 19 year old offender with a bipolar disorder became a “Facebook friend” of the victim who, after forming a relationship with a previous partner of the offender, started receiving threatening messages on his Facebook profile from the offender. The victim, out of fear for himself and his family, ended his relationship with the woman concerned, but nevertheless, the offending conduct, which contained threats of harm, continued.
(citations omitted) (emphasis added)
In his sentencing remarks, the Magistrate quoted the part of the paragraph in Hampson emphasised above, and went on:
That's a general proposition. I think that is a reasonable approach that is taken by the court. In my view, given the appalling comments and threats made by the defendant to the complainant, the only realistic starting point for a case such as this is the starting point of imprisonment. The comments, some of them were threatening, and they can be properly characterised as being vile. In my view, only an immediate sentence of imprisonment is warranted in the circumstances.
It seems, however, that his Honour may have misconstrued the comments that he identified as “a general proposition”. Muir JA did not say that, generally, offenders whose conduct was threatening or caused genuine fear must be sentenced to custodial terms but that, generally, custodial terms were imposed only on offenders who conduct was threatening or caused genuine fear. That is, offenders whose conduct did not include threats, or did not cause genuine fear, would not generally be liable to custodial terms.
The appellant's conduct, however, did include threats, and did cause genuine fear on the part of the complainant. That is, a correct reading of Muir JA's proposition would not have excluded a custodial sentence for the appellant, but nor would it have appeared to require such a sentence.
Counsel for the appellant drew my attention to the case of Freeman v Pulford (1988) 92 FLR 122. In that case, Kearney J of the Supreme Court of the Northern Territory dealt with an appeal in which it was claimed that the lower court had sentenced “on the erroneous basis that it was bound by R v Bird (1988) 56 NTR 17. Kearney J said, at 126:
It is part of the function of an appellate court to establish coherent sentencing principles which can be applied by trial courts, and to encourage a reasonable consistency in their sentencing. But it is of cardinal importance that the determination of the appropriate sentence remains a matter for the trial court to decide, in its discretion. In general, and because of the discretionary nature of sentencing, decisions of appellate courts on sentence do not constitute “binding authority”; they usually turn upon the particular case under appeal, and the circumstances of offences and offenders are very variable. As Dunn L.J. put it in R v De Haviland:
"... decisions on sentencing are no more than examples of how the Court has dealt with a particular offender in relation to a particular offence. As such, they may be useful as an aid to uniformity of sentence for a particular category of crime; but they are not authoritative in the strict sense."
General sentencing guidelines set out by an appellate court carry great weight but are necessarily obiter dicta and courts of trial may always go outside those guidelines if they consider it right to do so in the circumstances of the particular case. It is therefore incorrect to speak of Bird as a “binding authority” in the sense that it required a particular type of sentence to be imposed.
(citations omitted)
Having regard to:
(a)first, the Magistrate's apparent initial view that a good behaviour order with a community service condition would be an available sentence;
(b)the Magistrate's apparent misreading of the proposition set out in Hampson as requiring a “custodial term of imprisonment” in the case before him, and his separate conclusion, despite the submissions of the prosecutor, that the appellant's offence required immediate prison time as distinct from a suspended term of imprisonment; and
(c)finally, the Magistrate's initial mention of a good behaviour order in conjunction with the sentence of immediate full-time imprisonment, and his ultimate decision to avoid the complexities raised by counsel by removing the good behaviour order;
I am satisfied that, at least, his Honour was confused about the sentencing options open to him, both as a matter of law and in relation to the significance of propositions found in sentencing decisions of superior courts. In such a situation, it is reasonable to conclude that his Honour reached the sentence he imposed via one or more mistakes of law. This conclusion is sufficient to reopen the sentencing discretion, unless I consider that no other sentence is warranted.
Appeal ground (b)
Appeal ground (b) is that the sentence in this case was manifestly excessive. It is not so clear to me that the sentence was manifestly excessive, but I do not need to reach such a conclusion in order to determine that another sentence is nevertheless appropriate, and that I should accordingly re-exercise the sentencing discretion.
Should the appellant be re-sentenced?
Although the appellant's offence was not of the worst kind, and was probably not above mid-range seriousness, it did cause serious distress and fear to the victim, and there is no basis to accept that it was not intended to cause such distress and fear. Furthermore, while on the one hand the appellant's previous good character entitles him to a degree of leniency, it also suggests that he should have been able to understand the seriousness of his actions, how very unacceptable they were, and the likely effect on the victim. I note also that the appellant's somewhat vicious feelings towards the victim endured for a remarkably long time, and were acted on in the most extreme way nearly two years after the relationship ended.
In these circumstances, I am satisfied that no sentence other than imprisonment is appropriate, but I am also satisfied that the sentence did not when the appellant was initially sentenced, and does not now, need to be served in full-time custody.
If, as was initially foreshadowed, the Magistrate had simply required the appellant to enter a recognizance to be of good behaviour for some period, a community service order would certainly have been appropriate. Such an order might also have been appropriate if the term of imprisonment originally imposed had been fully suspended. In the current circumstances, however, being that the appellant has spent a number of days in full-time custody and has had to appeal his sentence, I consider that an appropriate new sentence would be a sentence of imprisonment for two months, with an order under s 20 of the Crimes Act that the appellant be released immediately, upon giving security in the amount of $1,000 by recognizance, that he will be of good behaviour for 12 months.
Accordingly, the appeal is allowed and the appellant will be re-sentenced as identified.
Re-sentencing
Mr Cavuoto, I note the conviction recorded in the Magistrates Court, and I sentence you to imprisonment for two months. I order under s 20 of the Crimes Act that you be released immediately, upon giving security in the amount of $1,000 by recognizance (and that is not a cash security, that's just an undertaking) that you will be of good behaviour for 12 months.
You will be given a written copy of the recognizance release order, and it will be read to you by the court officials. In short, it means that for the next 12 months you need to keep out of trouble. If you commit another offence during that time, you may find yourself back before this Court to be re-sentenced for this offence, as well as possibly losing your $1,000, and depending on exactly how you have breached the undertaking, especially if there were any repeat of the kind of behaviour for which I have just sentenced you, you could find yourself serving some or all of this sentence in full-time custody.
You may sit down.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 26 September 2017 |
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