DD v Ilievski
[2016] ACTSC 115
•23 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DD v Ilievski |
Citation: | [2016] ACTSC 115 |
Hearing Date: | 23 May 2016 |
DecisionDate: | 23 May 2016 |
Before: | Murrell CJ |
Decision: | Appeal allowed in part. Appellant re-sentenced to 20 months’ imprisonment. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – Stalking offence - Whether sentence was manifestly excessive – Appeal allowed in part – Sentences restructured |
Legislation Cited: | Crimes Act 1900 (ACT) s 35(2) Crimes (Sentencing) Act 2005 (ACT) ss 33, 35 Magistrates Court Act 1933 (ACT) ss 207, 208 |
Cases Cited: | House v The King (1936) 55 CLR 499 Treloar v DD (Unreported, Magistrates Court of the ACT, Magistrate Fryar, 25 November 2015) |
Parties: | DD (Appellant) Christopher Ilievski (Respondent) |
Representation: | Counsel Dr J De Bruin (Appellant) Mr D Sahu Khan (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 110 of 2015 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Fryar Date of Decision: 25 November 2016 Case Title: Treloar v DD Court File Number: CC 5331 of 2012 |
MURRELL CJ:
The appellant appeals against the following sentences imposed by the Magistrates Court on 25 November 2015:
(a)Breach of good behaviour order for assault: three months’ imprisonment to run from 6 August 2015 to 5 November 2015 (maximum penalty for assault two years’ imprisonment);
(b)Stalking: 14 months’ imprisonment, from 6 November 2015 to 5 January 2017 (maximum penalty two years’ imprisonment);
(c)Drive while disqualified (repeat offender): six months’ imprisonment from 6 August 2016 to 5 February 2017 (maximum penalty 12 months’ imprisonment);
(d)Fail to appear: one month’s imprisonment, from 6 February 2017 to 5 March 2017 (maximum penalty two years’ imprisonment);
(e)Fail to appear: one month’s imprisonment, from 6 March 17 to 5 April 2017;
(f)Fail to appear: one month’s imprisonment, from 6 April 2017 to 5 May 2017;
(g)Contravene protection order: four months’ imprisonment, from 6 April 2017 to 5 August 2017 (maximum penalty five years’ imprisonment but two years’ imprisonment if prosecuted in the Magistrates Court).
Sentencing submissions were made on 10 November 2015 and the sentences were delivered on 25 November 2015.
In relation to the total sentence of two years’ imprisonment, the Court fixed a nonparole period of 13 months’ imprisonment expiring on 5 September 2016.
The grounds of appeal stated in the notice of appeal were:
(1) The Magistrate erred in characterising the appellant’s guilty pleas as having small utilitarian value;
(2) The Magistrate failed to have sufficient regard to the principles of totality in accumulating the sentences in the manner in which she did accumulate them; and
(3) The sentences were manifestly excessive.
At the hearing of the appeal, ground (2) was abandoned. Grounds (1) and (3) were pressed in relation to the sentence imposed for the stalking offence.
Facts
Breach of the good behaviour order
On 17 October 2012, the appellant was sentenced to three months’ imprisonment for assault. The sentence was suspended on the appellant entering into a good behaviour order for 18 months. He breached the order and, on 23 March 2013, he was resentenced to three months’ imprisonment that was suspended upon the offender entering into a good behaviour order for 18 months.
The offences the subject of the other sentences that were imposed on 25 November 2015 constituted further breaches of the good behaviour order.
Stalking
Following the termination of the relationship between the complainant and the appellant in early June 2014, on 15 June 2014 there was a telephone conversation between the complainant and the appellant which involved a relevant threat. Text messages were sent to the complainant on 25 June and 13 July 2014. On the later date, three separate messages were sent over a period of 15 minutes. Thereafter, there was no further contact.
The Magistrate described the text messages as a “serious, violent and a graphic threat to kill the victim and threats and gloating about taking the children”. I agree with that characterisation. The Magistrate found that the threats were designed to intimidate, harass and invoke fear in the complainant and that they had that effect. They occurred because the appellant was seeking retaliation for the complainant ending the relationship. The appellant said that they had occurred because the complainant was preventing him from seeing his children, a motive that the Magistrate said demonstrated a lack of insight on the part of the appellant.
Her Honour described the offence as being in the “mid to high range” of objective seriousness. Starting from a sentence of 16 months, she reduced the sentence to 14 months’ imprisonment for the plea of guilty, a 25% discount.
Drive while disqualified
The Magistrate noted that this was the appellant’s sixth conviction for such an offence and that on prior occasions he had received the benefit of periodic detention orders. She observed that it was an example of “contumacious offending” and that the appellant had totally disregarded previous Court orders.
The starting point for the sentence was seven months’ imprisonment which the Magistrate reduced to six months’ imprisonment for the plea of guilty, a 14% discount. The Magistrate imposed a disqualification period of two years.
In relation to previous drive while disqualified offences, on two occasions periodic detention orders had been imposed. In 2008, a sentence of six months’ imprisonment was to be served by way of periodic detention and in 2013 a sentence of four months’ imprisonment was to be served by way of periodic detention. Those offences, and the offence before the Court in November 2015 occurred in the context of a very poor driving history.
The fail to appear offences
These offences occurred on 22 August 2014, 2 December 2014 and 13 January 2015. On each occasion, a warrant was required to bring the appellant to court.
Her Honour noted the inconvenience and expense associated with the appellant’s misconduct and the dominant sentencing purposes of general and personal deterrence. Her Honour said that, but for the pleas of guilty, she would have imposed a sentence of two months’ imprisonment on each charge.
Contravene protection order
In contravention of a domestic violence order and while subject to a suspended sentence order and on bail, on 18 April 2015 the appellant telephoned the complainant six times and left four voice messages. The Magistrate cited this as “another example of the appellant’s contemptuous attitude to court orders”. The starting point for the sentence was six months’ imprisonment but it was reduced to four months’ imprisonment to take account of the plea of guilty.
Grounds of appeal
The appeal is brought pursuant to ss 207 and 208 and related provisions of the Magistrates Court Act 1933 (ACT). Numerous decisions have accepted that such an appeal is an appeal in the nature of a House v The King (1936) 55 CLR 499 appeal in relation to which an appellant is generally required to demonstrate an error of fact or law. The error may be an express error or error may be implied if there has been an obvious and serious miscarriage of discretion. Sentencing is quintessentially a discretionary exercise and, in order to succeed on an appeal that complains of manifest excess, the appellant must establish that the sentence was outside the available range of sentences considering the relevant objective and subjective features, any relevant statutory provisions and the maximum penalty set by the legislature.
The utilitarian value of the plea
This ground of appeal relates to the stalking matter.
In relation to the stalking matter, the Magistrate said:
Initially, the defendant pleaded not guilty even after making admissions to the police. The plea of guilty only came after considerable delay caused by the defendant very late in the day and is of small utilitarian value: Treloar v DD (Unreported, Magistrates Court of the ACT, Magistrate Fryar, 25 November 2015) 3.
The appellant complained that the plea, while not an early plea, was not “very late in the day” and also contended that it was wrong to characterise the plea as of “small utilitarian value”.
The appellant had been charged on 26 September 2014. There had been several failures to appear and then about three mentions when the appellant did appear. The matter was fixed for hearing on 3 December 2015 before service of the brief of evidence which was to have been served by 9 October 2015. On 22 September 2015, at the request of the appellant, the matter was relisted and the plea of guilty was entered.
I accept that it may have been more accurate to describe the plea as “relatively late in the day” as opposed to “very late in the day” and as of “limited utilitarian value” rather than “small utilitarian value”. However, such distinctions are nit-picking.
The discount of 12.5% was at the low end of the range, considering that the brief of evidence had not yet been served but, on the other hand, the prosecution case was strong. Admissions had been made to police and telephone records were available. Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the plea discount is a matter for the sentencing court, exercising its discretion. The Court is required to consider certain matters including the strength of the case and the stage at which the plea was entered. It is common to allow a discount in the range of 10% (where a plea is entered just before the trial commences) to 25% (where the plea is entered early). Within that range and given the circumstances of the present case, 12.5% was towards the low end of what one would have expected but I do not consider that it demonstrates error.
The manifest excess ground
The sentencing range for a particular offence depends upon the objective seriousness of the offence, the subjective circumstances of the appellant, the application of statutory considerations, such as discount for a plea of guilty and considerations in s 33 of the Sentencing Act, and considering the maximum available penalty. The sentencing statistics or other cases may be considered; they may provide a yardstick and indicate sentencing patterns.
In her reasons, the Magistrate referred (at page 2 lines 7—12) to the appellant’s criminal history, noting that it was “littered with offences of violence of driving matters”. It is true to say that it is “littered” with driving matters but it is not true to say that it is “littered” with matters of violence. The only prior matter of violence on the criminal history was the common assault that occurred in 2012 that was the subject of the breach of good behaviour order that was also before the Magistrate on 25 November 2015.
Subjective circumstances
I have had regard to the pre-sentence report and other subjective material before the Magistrate. Some material was not available—in particular the victim impact statement—but I accept what the Magistrate said in relation to victim impact. In the subjective circumstances there was nothing of any great moment calling for leniency. For example, the appellant’s prospects of reoffending in the future were unclear. There had been no solid commitment to rehabilitation or anything of that nature.
Objective seriousness
Focusing on the objective seriousness of the offence, the difficulty that I have with the sentence is that there is a maximum penalty of two years’ imprisonment and the starting point for the sentence imposed by the Magistrate was two-thirds of that maximum penalty. That starting point is consistent with the Magistrate’s characterisation of the objective seriousness as mid-to-high range but, in my view, it was wrong to characterise the offence as mid-to-high range. The appellant conceded in the written submissions that the objective seriousness of the offence is “towards the middle” and that is a reasonable way of putting it. The offence was of very significant seriousness.
The threats were, as the Magistrate said, “serious, violent and graphic threats to kill the victim and threats and gloating about taking the children”. On the other hand, there were only three episodes of offending and it was stalking by means of telephone conversations and electronic messages rather than immediate physical stalking.
The objective seriousness of stalking conduct should be assessed by reference to the range of conduct that is captured by the concept of stalking as defined in s 35(2) of the Crimes Act 1900 (ACT). Stalking conduct includes loitering near the stalked person, keeping them under surveillance, interfering with their property and other conduct which has more immediacy in terms of capacity to cause fear of harm than does, generally speaking, communication by telephone or electronic messaging.
When one has regard to the nature of the conduct in this case—telephone and electronic messaging—and to the number of occasions, it is my view that, despite the alarming content of the material, the offence should not be characterised as in the “mid-to-high range of objective seriousness”.
Re-sentence
Having formed that view, I need to consider the appropriate sentence.
I have regard to the material before the Magistrate. I agree with the submission by the Crown that sentencing purposes of general deterrence, personal deterrence, denunciation and accountability are very important. Additional material was tendered on resentencing, showing that the appellant has undertaken courses while in custody that might have a positive impact upon him in terms of future offending of this nature.
An appropriate starting point for sentence is 10 months’ imprisonment and I would deduct 12.5 % for the plea of guilty, arriving at a sentence of eight months’ imprisonment.
I will restructure the other sentences in a way that reflects the new sentence that I impose for the stalking offence and endeavours to reflect the overall criminality of the appellant, who committed numerous quite separate types of offences on quite separate occasions.
The appeal is allowed in relation to the sentence imposed for the stalking offence.
As restructured, the sentences imposed are:
(a)For breach of the good behaviour order, the original sentence is confirmed: three months’ imprisonment from 6 August 2015 to 5 November 2015.
(b)For the offence of stalking, the sentence is eight months’ imprisonment from 6 November 2015 to 5 July 2016.
(c)For the offence of drive while disqualified, the sentence is six months’ imprisonment from 6 April 2016 to 5 October 2016.
(d)For the first offence of fail to appear, the sentence is one month’s imprisonment from 6 October 2016 to 5 November 2016.
(e)For the second offence of fail to appear, the sentence is one month’s imprisonment from 6 November 2016 to 5 December 2016.
(f)For the third offence of fail to appear, the sentence is one month’s imprisonment from 6 December 2016 to 5 January 2017.
(g)For the offence of contravene protection order, four months’ imprisonment from 6 December 2016 to 5 April 2017.
That is a total sentence of one year and eight months or 20 months’ imprisonment.
In fixing the nonparole period, I have regard to the fact that the appellant’s prospects of rehabilitation are not particularly promising but note that this is his first period of full‑time imprisonment. He has done some courses. One does not know whether the sentence of imprisonment will be a wakeup call. I fix a nonparole period of 11 months’ imprisonment from 6 August 2015 to 5 July 2016; the remainder of the term is nine months’ imprisonment.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 28 June 2016 |
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