Director of Public Prosecutions v Abdelmalek
[2022] VCC 1806
•25 October 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
AP 19-1192
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LYDIA ABDELMALEK |
---
JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 August, 2022 & 20 September 2022 |
DATE OF SENTENCE: | 25 October 2022 |
CASE MAY BE CITED AS: | DPP v Abdelmalek |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1806 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr T. Sullivan | Seda Kilic & Associates |
For the Respondent | Ms A. Moran | OPP |
HER HONOUR:
1These proceedings involved an appeal against convictions and the sentence imposed by Ms Lydia Abdelmalek, the appellant, on 6 June 2019 at the Heidelberg Magistrates' Court.
2The Magistrate found eight charges against the appellant proven and imposed a total effective sentence of two years, eight months or 32 months imprisonment with a non-parole period of 21 months.
3The proceedings in respect of the appeal against conviction were protracted, taking approximately 20 weeks of court time, with both pre-trial argument and evidence.
4On the 26 May 2022, I found all the charges proven against the appellant, and handed down my reasons. That is, I found the appellant guilty of six charges of stalking, one charge of obtaining a financial advantage by deception, and one charge of causing an unauthorised modification with intent to commit a serious indictable offence.
5This appeal against sentence commenced on 9 August 2022, and a number of victim impact statements were tendered, some of which, were read by the authors to the court. The plea was completed on Tuesday 20 September 2022.
6In these proceedings, the court may only impose a sentence or exercise a power that the Magistrates' Court could have imposed or exercised. The maximum terms of imprisonment for an indictable offence heard summarily, as was the case in this appeal, is 2 years. The cumulative maximum term of imprisonment is 5 years. (See s113A and s113B of the Sentencing Act.)
7As the appeal progressed, I warned the appellant on more than one occasion that she faced the possibility that I may impose a more severe sentence than that which was imposed in the Magistrates' Court, if she continued in prosecuting her appeal. I reminded her counsel of that power a number of times in the course of the hearing.
8The parties accepted, pursuant to s256(3) of the Criminal Procedure Act 2009, the appellant had been sufficiently warned by me.
9I propose to increase that sentence to a total effective sentence of four years with a non-parole period of two years eight months, for the following reasons.
10In considering the sentence to impose the appellant's offending, I received from the respondent:
11Submissions on sentence appeal dated 8 August 2022, (Exhibit G);
12Victim impact statements from Emma Smith[1] (Exhibit B); Emma Smith’s father (Exhibit C); Belinda Smith[2] (Exhibit F); Emma Smith’s mother (Exhibit D); Alexandra Wolf[3] (Exhibit A); Kimberley Crowley[4] (Exhibit D). Each of these were either read in court by their author, or provided to me.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
13Given there is a current suppression order dated 4 July 2019, relating to identification of victims in this case, I will include an annexure A that sets out the names and titles or initials of how that individual is identified in the course of these reasons.
14I received the following material from the appellant:
15Submissions on sentence dated 15 September 2022 (Exhibit 1).
16Submissions regarding the suppression order dated 15 September 2022 (Exhibit 2)
17Psychological report, Jeffrey Cummins, clinical and forensic psychologist dated 7 August 2022 (Exhibit 3)
18Character references from the appellant's family members dated 31 July 2022, from friends Jacob Ibrahim, dated 24 July, Nicole Grotty dated 28 July and undated from Sarah Ibrahim. I also received a character reference from
Fr John Makari of St Mary's Coptic Church dated 28 July 2022. (Bundle
Exhibit 4)19Medical material relating to the health of the appellant's parents, and the appellant's status as their carer. This material was provided last week, and yesterday. (Bundle Exhibit 5).
20In addition, on 9 August, the appellant's counsel requested and the respondent did not oppose, the provision of a Forensicare psychiatric assessment and report. I was provided a copy of that court-ordered report by Dr Graham Walker, psychiatrist, dated 15 September 2022.
21The circumstances of the appellant's offending are set out in reasons that I published on 26 May. Those reasons, together with the summary of prosecution opening filed on the appeal, comprehensively detail the conduct on which the appellant engaged, particularly in respect of the stalking relating to Emma Smith and Alexandra Wolf. I do not propose to repeat them in the course of giving these reasons. However, aspects of the offending are referred to in an assessment of the objective gravity and seriousness of the offending.
22At the outset, I should indicate I regard this offending as a very serious example of stalking, particularly in respect of Emma Smith and Alexandra Wolf, though I am constrained in the sentencing options due to this matter being in the summary jurisdiction.
Impact on victims
23As indicated, I received material from the victims in respect of the charges relating to Emma Smith and Alexandra Wolf. A cursory reading of this material demonstrates the cruel, brutal, and ongoing impact this offending has had on the victims and their families. Most notably, the impact of their stalking on Alexandra Wolf was severe, encompassing all aspects of her life, including her health, family, and employment. Her family noted a decline in her mental health as the offending against her relentlessly continued. It was persistent and malicious. She experienced depression, fear, anxiety, shame, and embarrassment. The offending directed at Emma Smith, but also at her family members, impacted each of them to a significant extent, both directly and as a consequence of their relationship with Emma Smith and their observations of the deterioration of her general wellbeing and her mental health.
24Similarly, the impact of the appellant's offending on Alexandra Wolf was significant. She notes;
'My shame and embarrassment are overwhelming. I am angry. I am numb. I feel like I have been treading water for almost a decade. I struggle some days to get out of bed. All I want to do is sleep. I'm always on edge waiting for something bad to happen. The feeling of dread overwhelms me constantly. I am untrusting of everyone I meet. I do not like myself because I feel so stupid.'
25The impact on Alexandra Wolf of the appellant's offending has been life-altering, detrimentally affecting her work and daily living. She has required professional assistance to overcome her mental health issues suffered as a consequence of the offending.
26A disturbing aspect of this case, particularly in respect of the offending directed at Emma Smith, her family, and Alexandra Wolf, with the severe impact it has had, may well have been avoided if police authorities in other states had properly addressed or investigated the initial concerns raised by Emma Smith at the early stages of, or during the course of, the offending against her.
27Ellie Reynolds[5] did not prepare a victim impact statement. However, it is clear from her evidence in the appeal she suffered anxiety and mental health issues as a consequence of the offending directed to her. She has had difficulty sleeping, developed issues trusting others and developing normal friendships or social relationships. She has sought treatment from a psychologist.
[5] A pseudonyms.
Appellant's personal circumstances
28As to the appellant's personal circumstances, I have taken into account the material listed above, filed on the appellant's behalf, and the Forensicare report.
29The appellant is currently 32. At the time of this offending, she was aged between 21 and 26, living with her parents and studying. The appellant has three siblings. Her parents, though separated, live under the same roof. The appellant reported that she was raised in a loving, caring, and supportive family environment.
30After completing school, the appellant attended university and completed a degree in applied science, majoring in psychology.
31In terms of the employment the appellant
·Between 2010 to 2019, worked at Etihad Stadium on a part-time basis;
·Since 2015, until she was incarcerated, was the carer for her mother, who has a number of health issues.
·Also worked as a youth worker at Parkville Youth Justice Centre in August 2016, then at Barwon Prison during 2017 working with younger prisoners. This continued until she was arrested in April 2017.
32The appellant also undertook acting classes at various agencies in Melbourne during 2014 and 2016.
33The appellant is in reasonably good physical health, though suffers from diabetes, which requires monitoring and medication for treatment. She also has a heart condition, which is being adequately treated in custody. Her counsel submitted, and I accept, that these conditions will make her time in custody more burdensome. I take that into account.
34I also take into account that prison will be more burdensome for the appellant, being unable to care for her mother. As indicated, the appellant's mother has significant health issues, as outlined in Exhibit 5. She requires assistance with her daily care as a consequence of her health situation. That role was previously undertaken by the appellant, and I take that into account.
35The appellant has no prior convictions and is previously of good character.
36The respondent submitted that given the nature of this offending, including the deliberate and persistent nature of it, that the appellant's moral culpability is of the highest degree. Throughout the offending, it was submitted, it was obvious from the communications that took place that the appellant had knowledge of the distress and harm being caused to each victim, and that she still continued with the offending over a lengthy period of time. Although I accept that assessment, it should be considered in light of the psychological/psychiatric material before me.
37It is difficult to ascertain a reason or motivation for this offending, given its bizarre nature. In terms of the material regarding the appellant's psychological functioning and psychiatric state, which may have assisted in resolving this issue, the respondent submitted that given the information on which those opinions were expressed were sourced from the appellant, that they were of limited, if any, weight. I have obtained some assistance from the opinions expressed by both Mr Cummins and Dr Walker, both of whom are professionals, and both well aware of the nature of the offending of which the appellant has been convicted. Neither of these professionals were required for cross‑examination by the respondent.
38In terms of the appellant's psychological functioning, Mr Cummins opined, he did not diagnose her as suffering from any obvious personality disorder. He was unable to elicit sufficient information to make a diagnosis of any dissociative disorder. He diagnosed the appellant as suffering from a major depressive disorder, first episode severe, associated with anxiety and features of traumatisation, with this condition being triggered by her legal situation, including the inevitability of imprisonment.
39In a more detailed analysis, Dr Walker opined,
'Her index offences could be colloquially described as being carried out in the context of catfishing. Catfishing is a deceptive activity where a person creates a fictional persona or fake identity on a social networking service, usually targeting a specific victim or multiple victims individually.
'Individuals who engage in this behaviour may adopt fake personas for a number of intertwining reasons. They can target vulnerable individuals with the perpetrator using their intelligence to involve psychological processes that may operate deep in the subconscious.
'What may start as a small action of tricking the victim into believing they are real may spiral out of control, with the perpetrator having to implement more elaborate scams to continue to convince the victim around the reality of their fake persona. The perpetrators of catfishing are generally emotionally immature, naïve, and do not consider the impact on their victims. One commonality between catfishing perpetrators could be the online disinhibition effect, in which the potential for anonymity loosens up social and moral codes. This can cause perpetrators to feel that certain preconceived acceptable societal behaviours are more distant, freeing up mental capacity to explore potentially darker and more unconscious parts of their personality without fearing stigma.
'It is hard to identify what has driven Ms Abdelmalek's offending behaviour when she cannot fully acknowledge and explain the index offences, which may not be entirely conscious. I would suggest the following explanation, although I cannot be certain around this. Her offending behaviour appears to have been driven by a number of complex personality factors, with an individual's personality being the characteristic pattern of thoughts, feelings, and behaviours that make them unique. The personality arises from within the individual and remains fairly consistent throughout life, with influences on development by a multitude of lifetime biological, relational, and psychological factors. In turn, individuals can sense needs for fulfilment in their lives that can be largely unconscious.
'…Perhaps as a protective mechanism for her own perceived inadequacies,
Ms Abdelmalek has implemented fantastical thinking in order to develop an online intimate relationship with the victims that she otherwise may not have been able to achieve with the index offences, allowing her to explore her sexuality with virtual anonymity.'She may have struggled with her own identity or appearance, and felt the need to adopt a new persona in order to experience a sense that certain people believe she is worthy of attention. She may have temporarily wished to escape from the reality of their life, as perhaps this is devoid of perceived excitement or stimulation. Therefore, by engaging in fantastical thinking, she may have developed a sense of genuine love towards the victims of her offending, and experienced a feeling of emotional support from the victims despite this being rooted in a lie. This may have led to a feeling to a feeling of happiness and self‑satisfaction, which has in turn driven further offending behaviour.
'Despite the appearance, she has a reasonable social network as well as family support. There has been a degree of resentment, envy, or jealousy directed towards the victims of the offending that has led her to engaging in the offending behaviour. She may have sensed a lack of control over certain aspects of her life and engaged in this behaviour to elicit satisfaction over exerting control over others.
'As above, there are a number of complex intertwining reasons around why
Ms Abdelmalek may have committed the index offences. However, I would be more confident that her behaviour has been driven by a wish to seek relational intimacy and wish-fulfilment on a background of perceived inadequacy.'It is interesting that Ms Abdelmalek reports that she cannot recall committing most of the index offences. An explanation for this could be that she suffered from multiple episodes of dissociation, where an individual can disconnect from their thoughts, feelings, memories, or sense of identity. However, it would be unlikely that this would explain such behaviours carried out over such a prolonged period. Despite no clear evidence meeting the criteria for dissociative episodes, Ms Abdelmalek may have felt the need to fully immerse herself into the character of the individuals that she assumed the virtual identities of as a protective factor for her own perceived lack of clear identity.'
Neither of the professionals were able to, with any certainty, identify any clear psychological or psychiatric condition related to this offending. Although initially the appellant's counsel submitted that her psychological condition would make prison more burdensome for her, and that the condition was likely to deteriorate when in custody, ultimately that submission was not pressed. It was not submitted that any limbs of Verdins were engaged as a consequence of either of the professional opinions.
Objective gravity – seriousness of the offending
40As to the objective gravity or seriousness of this offending, in respect of
Charge 2 and stalking of Emma Smith, the offending:a) occurred over a period of three years and three months;
b) was persistent and unrelenting. Emma Smith was contacted on hundreds of occasions over the relevant period, whether by the appellant posing as a legitimate character or as the stalkers. It continued despite her changing her phone number or other contact details;
c) extended to contacting Emma Smith’s family members, friends, and employer;
d) involved complex planning and preparation. The appellant created a web of false identities and characters, combined with the use of multiple devices, phone numbers, applications, emails, and social media accounts. Some of the accounts were in false names. All these aspects made the offending very difficult to trace and detect;
e) as part of the stalker character, contained abusive, threatening, and sexually explicit material;
f) exposed Emma Smith’s vulnerability. Having obtained her trust as one of the legitimate characters, then utilising that information to taunt her. The appellant referred to Emma Smith’s mental health and/or suicidal thoughts, including threats to reveal those issues to others. The offending continued even though the appellant was aware of those issues;
g) created the impression or fear within Emma Smith that she was under observation, with references to her movements and those of her family members and knowledge of her work roster;
h) gained Emma Smith’s trust, so she would provide sexually explicit material to a legitimate character, then as the stalker, threaten to distribute that material to family, friends, and her employer. Further, the appellant followed through on the threats and distributed explicit material to her family members;
i) threatened Emma Smith that her family would be harmed if the stalker's demands were not met;
j) made false complaints regarding Emma Smith to her employer;
k) involved a random victim; Emma Smith was not known at all, to the appellant; and
l) involved the accumulation and storage of literally thousands of photos and videos of Emma Smith for use in the stalking behaviour.
Many of the specific examples are referred to in the respondent's submissions (see paragraph 7(g)-(j))
41Charge 3, stalking Emma Smith’s father; Charge 4, stalking Belinda Smith; and Charge 5, stalking Kimberley Crowley. The offending against those related to Emma Smith included:
i)conduct over an extended period of time; three years and eight months, and 2 years and 8 months respectively;
ii)attempted to lure Belinda Smith into exchanges with a legitimate character, to give this character credence in the stalking of Emma Smith;
iii)messages that were derogatory and threatening, and some of them included references to Emma Smith, and sending of intimate images of her;
iv)messages that were part of a complex web of deceit, purportedly sent to a legitimate character from stalkers, then forwarded to Emma Smith or her family members;
v)conduct that was contemporaneous with the stalking of Emma Smith. The appellant would have been aware that Emma Smith’s family members and friend knew of the stalking of their daughter, sister, or friend; thus, increasing their fear as a consequence of the threats that were directed to them;
vi)was directly threatening as to the safety of Emma Smith and family members.
42Charge 6, in respect of the stalking of Alexandra Wolf, the offending
(a) occurred over an extended period of time: 2 years, 7 months;
(b) was persistent and unrelenting through phone, text, email, and other applications. It continued, despite Alexandra Wolf changing her number and/or accounts on multiple occasions; and further, the appellant made it clear that she was aware that those changes had been made;
(c) was planned and premeditated; it involved accessing Alexandra Wolf’s Optus account on numerous occasions, and the creation of a legitimate character, Lincoln Lewis;
(d) contained threats arousing fear that Alexandra Wolf and her daughter were under physical surveillance, or that the stalker was in close proximity. Alexandra Wolf’s fears were such, that she moved residence;
(e) encouraged Alexandra Wolf to provide sexually explicit material, and then threatened to and on occasion, actually did distribute some of that material on the internet;
(f) the creation of false complaints to Alexandra Wolf’s employer;
(g) contacting work colleagues of Alexandra Wolf, using false identities, and discussing details about her that were untrue;
(h) involved complex planning and preparation; the appellant created a web of false identities and characters, combined with the use of multiple devices, phone numbers, applications, emails, and social media accounts. Such made this offending very difficult to trace, and detect.
(i) involved a random victim; Alexandra Wolf was not known at all to the appellant; and
(j) involved the accumulation and storage of literally thousands of photos of Alexandra Wolf, including of her young daughter, for use in the stalking behaviour.
43In respect of the offending relating to Emma Smith, her family, and Alexandra Wolf, it is almost impossible, when one considers the volume of the material that the appellant accumulated on her devices, and the use that she made of that material in her stalking activities, how else she occupied her time over this extended period, other than by engaging in this conduct. That is, adopting multiple personalities and creating a complicated web of online communications with the victims. As previously noted, the details of which are set out in my reasons of May 2022 and the prosecution opening.
44In respect of Charge 9 and stalking Ellie Reynolds, the offending:
a) occurred over approximately 9 months;
b) involved a significant breach of trust, given the friendship between the appellant and Ellie Reynolds and the use of information that was provided to the appellant in that context. This included information obtained when the stalking was happening, and the fears expressed by Ellie Reynolds. The appellant then used this information to threaten, stalk, and harass Ellie Reynolds anonymously;
c) was persistent, and involved the appellant sending numerous messages to Ellie Reynolds and calling her on a number of occasions;
d) was carried out by the appellant using multiple devices, phone numbers, phone applications, emails, and social media accounts;
e) involved complex planning and preparation, including her alteration of a search warrant that she had received from Victoria Police in relation to the stalking investigation regarding Emma Smith and Alexandra Wolf, to persuade Ellie Reynolds, and her partner, that a stalker was being investigated;
f) engaged Ellie Reynolds’ partner in a mutual investigation as to who the stalkers were, and the creation of material to implicate others in an attempt to ensure that her involvement was not discovered;
g) attempted to persuade Ellie Reynolds and her partner that she too, the appellant, was being stalked;
h) gave the impression to Ellie Reynolds that she was being physically monitored by the use of her address, and number plates;
i) some of the behaviour occurred after the appellant had been interviewed in respect of Emma Smith and Alexandra Wolf, on the 16 April 2016. That is, the conduct against Ellie Reynolds continued, despite the appellant being aware that she was being investigated for similar conduct against others..
45There has been a significant delay in the prosecution of this matter, some of which is not the fault of the appellant. Initially, the appellant was charged in Queensland; it was not until the magistrate dismissed the charges on the basis that they had been issued in the wrong jurisdiction, that the matter was transferred to Victoria; this did not occur until 2017.
46The nature of the offending itself was such that once Victoria Police took over the prosecution, delays were encountered with obtaining results of e-Crime analysis on the appellant's devices. Some of the devices were not discovered by police to be in the possession of the appellant until years after charges had been laid.
47In addition to delays occasioned by the above, COVID restrictions at court were such that the listing of the appeal was delayed; ultimately, some of the hearing was able to be heard online; I take delay in having the matter finalised into account.
48The respondent submitted that although the appellant was entitled to contest the charges, this matter proceeded despite an overwhelming prosecution case and in full knowledge of the additional distress that flowed to the victims as a result.
49I do not consider that delay in this way can be an aggravating feature as submitted by the respondent. However, I do accept that the running of this matter has been complex and time consuming. I accept that the delay was, not “undue”, as that term is used in legal proceedings, given the complexity of the evidence and investigative tools required to properly analyse the mountain of material contained on numerous devices.
50As indicated, some of the delay with the appellant's matter proceeding was due to COVID. Additionally, I accept that the appellant's time in custody is and will be more burdensome, given COVID. A prisoner's movements are more restricted, programs are less available, and face to face visits are not as freely available.
51Although restrictions now appear to be easing, I take into account that imprisonment has been and is likely to continue to be more burdensome for the appellant. Further, I accept the circumstance of the appellant being in protective custody will make her time in custody more difficult.
52The appellant's counsel submitted that there were factors that augured well for her rehabilitation, including her strong employment history; continued support from family, friends, and community; and that she has no outstanding matters.
53Additionally, reference was made to broad psychological psychosocial support available to the appellant upon her eventual release; Mr Cummins notes
'She would benefit from further psychological work, especially work focusing on deeper exploration of her early development and how this may have contributed to her current personality and behaviour. She may benefit from assessment by a specialist service, such as the Forensicare Problem Behaviour Program; if accepted by this service, more vocal psychological work could be implemented to look at possible driving factors for her offending behaviour. This could help her improve her understanding of herself and her behaviour, and minimise the chance of her engaging in further offending behaviour in the future; (see paragraph 67 and 68)'.
54The appellant's rehabilitation prospects are difficult to determine, given the protracted nature of this offending and the appellant's lack of insight. Clearly, the appellant's prospects depend on the appellant engaging with services as recommended by Mr Cummins.
55Given the bizarre nature of this offending, there has been significant publicity; I accept the appellant has been dealt a form of extra curial punishment as a consequence of this coverage, which is likely to impact on her future employment prospects, career, and studies. I take this matter into account.
56As to other relevant sentencing considerations, general deterrence has an important role to play in sentencing for matters of this nature. This is particularly so, given that many who engage in this kind of behaviour do so with the perceived anonymity that communications on these platforms allow for.
57Those who are prepared to engage in this kind of behaviour, and allow it to progress to the extreme extent that it can, armed with the knowledge of the devastating effect it is having on the other individual, need to know that they will be punished severely. Despite the content of some of the material being reflective of a fictional soap opera, it was not fantasy. It was real and impacted real people. What may begin as light-hearted, can quickly escalate and have significant consequences for the psychological wellbeing of those to whom the ruse is directed.
58I accept, as submitted by the respondent, given the rise in the use of technology and social media in the community, offending of this nature needs to be appropriately deterred. It is all too easy, and seemingly without consequence, for offenders to anonymously torment and deceive those that they encounter in the electronic world. For similar reasons, protection of the community, just punishment, and denunciation are also important sentencing considerations. In particular, those who engage in increasingly popular social media platforms need to be wary of the dangers that such communications can invite, and cautious in engaging with and trusting other users who they do not know other than through this kind of medium.
59I also regard specific deterrence as an appropriate sentencing consideration. Even though the appellant has no prior matters and is previously of good character, she has shown no remorse or insight into her offending. This offending occurred continuously over an extended period of time, and the appellant must have spent literally thousands of hours pursuing her victims by this conduct in secret, whilst leading an otherwise apparently normal and respectable life. The appellant needs to be deterred from engaging in this kind of conduct ever again. It must have been an all-encompassing part of her life, and she needs to be discouraged from participating in any similar kind of activity again.
60The respondent submitted a term of imprisonment with a non‑parole period was the only appropriate outcome given the serious, ongoing, and sophisticated nature of the offending in this case. The appellant's counsel conceded the same. In determining the period of imprisonment to impose, it is important to consider the manner in which this matter proceeded and the position of the parties in relation to the matter continuing in the summary jurisdiction.
61I understand this matter was issued in the Magistrates' Court, and at that time police were the prosecuting authority. At no stage did the magistrate indicate, nor did the parties indicate, that this matter should not be dealt with summarily. I was informed that in a directions hearing in this court, prior to the hearing of his appeal, His Honour Judge Trapnell requested the parties consider their position as to the matter proceeding in this court exercising its summary jurisdiction, having regard to his assessment of the seriousness of the matter.
62At the time, the Director of Public Prosecutions formed the view that no application would be made to revoke summary jurisdiction. It was submitted at that time, that neither the provisions of the Criminal Procedure Act nor the common law, allowed this court to remit the matter back to the Magistrates' Court for the purpose of a committal hearing, and that the Director had determined not to exercise her power to file a direct indictment in this matter. (See the submissions filed by the respondent regarding this issue dated 8 April 2020.)
63The respondent, in written material before me, submitted the case presented by the respondent against the appellant in the appeal was more detailed and contained a vast amount of new material, putting the offending in a far graver light than was apparent in the Magistrates' Court. I accept the case was very different than that which was before the magistrate, although the charges were the same.
64In particular, the case proceeded in the Magistrates' Court without a number of the appellant's devices having been found and seized, then analysed by e-Crime. Such revealed literally thousands of files relating to each of Emma Smith and Alexandra Wolf, and the severity and some of the more bizarre aspects of the conduct engaged in by the appellant in her stalking of both these individuals.
65If the respondent's submission dated 8 April 2020 is correct, then prosecuting authorities should be aware that in cases of this nature, which are becoming more common with the use of internet, that decisions regarding the appropriate jurisdiction to issue proceedings or subsequent applications to uplift the matter, should be made when the extent of offending on which charges are to be based has been finalised and properly investigated, including the utilisation of e-crime investigative tools. It is only then that a proper assessment can be made as to the seriousness of and extent of the conduct. I accept this is likely to be time-consuming and require significant resources, but it is only once that task is adequately completed that the appropriate jurisdiction for a matter to proceed can be determined.
66I am constrained by the limitation on the sentence that can be imposed by this court exercising summary jurisdiction. I have, as best I can, imposed an appropriate sentence, taking all relevant sentencing considerations into account, including totality. I note the appellant was remanded on unrelated matters between 23 April and 10 May 2021, a period of 10 days, and I take that period of time into account in accordance with Renzella principles.
67The sentence I propose to impose is as follows. In respect of Charge 2, the appellant is convicted and sentenced to 24 months imprisonment.
68In respect of Charge 3, the appellant is convicted and sentenced to
8 months imprisonment.69In respect of Charge 4, the appellant is convicted and sentenced to
8 months imprisonment.70In respect of Charge 5, the appellant is convicted and sentenced to
3 months imprisonment.71In respect of Charge 6, the appellant is convicted and sentenced to
20 months imprisonment.72In respect of Charge 7, the appellant is convicted and sentenced to one month imprisonment.
73In respect of Charge 9, the appellant is convicted and sentenced to six months imprisonment, and in respect of Charge 10, the appellant is convicted and sentenced to two months imprisonment.
74Three months of the sentence imposed on Charge 3, three months of the sentence imposed on Charge 4, one month of the sentence imposed on Charge 5, 14 months of the sentence imposed on Charge 6, two months of the sentence imposed on Charge 9, and one month of the sentence imposed on Charge 10, will be cumulative on the base sentence of 24 months in respect of Charge 2, giving a total effective sentence of 48 months or four years. I impose a non‑parole period of 32 months.
75I make the order for forfeiture, as has been requested by the prosecution. What is PSD, please?
76MS MORAN: 152 days, Your Honour.
77HER HONOUR: I declare PSD of 152 days. Now, I am missing one page. I am sorry, but it relates to the application for suppression in relation to the employment of the appellant. I do propose to make that order. The respondent opposed the making of the order, and when I requested the respondent to provide material in relation to the submission that it was well‑known that the appellant had had the relevant previous employment that she had, that was not forthcoming. In those circumstances, given the appellant is likely to be in protective custody as a consequence of that previous employment, I propose to make that suppression order in respect of that aspect of these reasons. Now, is there anything else?
78MS MORAN: No, Your Honour.
79MR SULLIVAN: No, Your Honour.
80HER HONOUR: Thank you. I'll stand down.
- - -
0
0
0