Ettridge v Police - [2022] SASC 121

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
ETTRIDGE v POLICE
[2022] SASC 121
Judgment of the Honourable Chief Justice Kourakis
21 September 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - STALKING - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
This is an appeal against sentence following the appellant entering a plea of guilty in the Magistrates Court to one count of unlawful stalking. The Magistrate sentenced the appellant to a starting point of 16 months imprisonment, which was reduced for the appellant’s plea of guilty to 14 months and 12 days, and further reduced for time in custody on home detention bail to 10 months. The appellant appeals this sentence on the following grounds:
1.The sentence imposed is manifestly excessive.
2.The learned sentencing Magistrate erred by failing to take into account a relevant consideration, namely the unlikelihood of the appellant reoffending.
Held, per Kourakis CJ, allowing the appeal:
1.The starting point for a first offence against s 19AA(2) of the Criminal Law Consolidation Act 1935 (SA) for conduct in the middle range of seriousness and with less culpable intention is too high.
2.The starting point of 16 months did not allow sufficient differentiation between the appellant’s offence and more serious, recidivist offending.
3.The appellant was not entitled to the leniency a person of previous good character might have been afforded, but he was not to be punished again for his prior offending. There was, in his history and rehabilitation whilst on bail, some reason to regard his future prospects as reasonably good.
4.The sentence is set aside, and the matter is listed for further submissions on 30 November 2022.

Criminal Law Consolidation Act 1935 (SA) s 19AA; Surveillance Devices Act 2016 (SA) s 7(1), referred to.

ETTRIDGE v POLICE
[2022] SASC 121
Magistrates Appeal: Criminal

KOURAKIS CJ: This is an appeal by Mr Ettridge against a sentence of 10 months imprisonment imposed in the Port Adelaide Magistrates Court on his conviction of an offence contrary to s 19AA(2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). Mr Ettridge appeals against that sentence on the ground that it is manifestly excessive. On 21 September 2022, I made an order allowing the appeal and setting aside the sentence imposed in the Magistrates Court. I adjourned the hearing of submissions on the resentencing of Mr Ettridge to a later date.
The offending
Mr Ettridge pleaded guilty to the offence of stalking the victim, Ms C, between 1 November 2018 and 28 January 2019. Mr Ettridge was initially charged with additional counts of using a surveillance device contrary to s 7(1) of the Surveillance Devices Act 2016 (SA). Mr Ettridge had placed the devices in a car used by Ms C. Those charges were withdrawn on Mr Ettridge pleading guilty to the stalking charge.
In 2018, Ms C was 22 and Mr Ettridge was 31. In about October, Ms C decided to end the relationship because she found Mr Ettridge’s conduct controlling and manipulative. At the time of the offending, Ms C was pregnant. The offence was committed in part by sending text messages to Ms C between 5 November 2018 and 27 November 2018. The messages included threats that if Ms C did not talk to him he would ‘take things into [his] own hands’ and that he would ‘roll up and make a scene at your work or house every single day until we can talk’. In another message, Mr Ettridge threatened that if Ms C did not meet with him he would ‘turn on you worse than you can ever imagine’.
On a number of occasions after 23 December 2018, Ms C was either approached by Mr Ettridge or found that he was in the vicinity of places she visited in circumstances which caused her to think that Mr Ettridge was following her movements.
On 10 January 2019, Ms C’s father located a tracking device in the vehicle she was driving. He and Ms C took the device to a police station. About a half an hour after doing so, Ms C received a phone call from Mr Ettridge, who told her that he had seen her go to the police station. On 25 January 2019, Ms C again thought that she was being tracked. On 4 February 2019, police found a second tracking device in the car she was driving. Mr Ettridge admitted installing the tracking devices.
Mr Ettridge’s surveillance of Ms C and the text messages constituted the conduct with which he was charged.
At the time of the offending, Mr Ettridge was subject to a suspended sentence bond imposed in the District Court in relation to three counts of trafficking and had a record of prior offending dating back to 2004, including:
·driving offences (for which he received fines or was discharged without further penalty);
·failure to comply with bail agreement; and
·minor drug offences.
Understandably, the offending caused Ms C considerable distress. She suffered anxiety in public places, particularly, when people were yelling. She was fearful of Mr Ettridge and became hypervigilant.
The Magistrate rejected Mr Ettridge’s submission in mitigation that he wished to speak to Ms C about the ownership of the vehicle and an investment property in which they both had an interest. The Magistrate had no doubt that Mr Ettridge was stalking Ms C and contacting her in an attempt to maintain control over her.
Mr Ettridge was 36 years of age when he was sentenced. He attended Henley Beach High School until year 11. He left school to complete a spray-painting apprenticeship. He was active in sports until he suffered a significant injury in 2016. He then took up work as a sales representative in logistics in the wine industry.
Mr Ettridge was held in custody from the time of his arrest on 28 January 2019 until 22 February 2019. He was released on home detention bail but after 10 months was placed on simple bail with a curfew. Mr Ettridge did not further offend from when he was released on bail to the time he was sentenced on 27 April 2021, a period of more than two years.
The Magistrate commenced with a notional sentence of 16 months which his Honour reduced for Mr Ettridge’s plea of guilty to 14 months and 12 days. The Magistrate then further reduced the sentence for time in custody on home detention bail, arriving at a sentence of 10 months. In addition, the Magistrate confirmed the intervention order.
Discussion
Section 19AA of the CLCA provides:
19AA—Unlawful stalking
(1)A person stalks another if—
(a)     on at least two separate occasions, the person—
(i)follows the other person; or
(ii)loiters outside the place of residence of the other person or some other place frequented by the other person; or
(iii)enters or interferes with property in the possession of the other person; or
(iv)gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person; or
(iva)publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the other person; or
(ivb)communicates with the other person, or to others about the other person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication in a manner that could reasonably be expected to arouse apprehension or fear in the other person; or
(v)keeps the other person under surveillance; or
(vi)acts in any other way that could reasonably be expected to arouse the other person’s apprehension or fear; and
(b)     the person—
(i)intends to cause serious physical or mental harm to the other person or a third person; or
(ii)intends to cause serious apprehension or fear.
(2)A person who stalks another is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 3 years;
(b)     for an aggravated offence—imprisonment for 5 years.
…
It can be seen that the objective elements of the offence of stalking cover a very wide range of conduct. The culpability of the conduct, its inherent risk, and the actual effect on the victim may vary greatly. I would characterise Mr Ettridge’s conduct as being in the mid-range of seriousness. In particular, for the most part, the surveillance of Ms C was surreptitious. Mr Ettridge used his knowledge of Ms C’s movements to confront her on only one occasion. He did not enter or interfere with property in her possession other than to place the surveillance device in the car she was using. The texts did not include offensive material of the kind to which subparagraph (iv) is primarily addressed. On the other hand, the conduct overall was calculated to, and did, cause Ms C much anxiety.
In addition to engaging in conduct which constitutes stalking the defendant must either intend to cause serious physical or mental or harm or intend to cause serious apprehension or fear.
It was not alleged against Mr Ettridge, and the Magistrate did not find, that he intended to cause serious physical or mental harm. The mental element constituting Mr Ettridge’s offence was an intention to cause serious apprehension or fear. From the text messages, it appears that his primary, if not exclusive, intention was to cause an apprehension of conduct which would cause distress and embarrassment. That intention is less culpable than an intention to cause serious physical or mental harm.
Accordingly, the starting point of 16 months for a first offence against s 19AA(2) of the CLCA for conduct in the middle range of seriousness and with the less culpable intention is too high. The starting point of 16 months did not allow sufficient differentiation between his offence and more serious, recidivist offending. Mr Ettridge was not entitled to the leniency a person of previous good character might have been afforded, but he was not to be punished again for his prior offending. There was, in his history and his rehabilitation whilst on bail, some reason to regard his future prospects as reasonably good.
For the above reasons, on 21 September 2022, I allowed the appeal and set aside the sentence of the Magistrate. I was informed that Mr Ettridge had not offended in the period during which this judgment was reserved and that he established a successful property investment business. I was informed that Mr Ettridge had responded well to the supervision of his bail by the Department of Correctional Services. Accordingly, I ordered a pre-sentence report and listed the matter for further submissions on 30 November 2022.