Fernandez v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0017

ROBERT FERNANDEZ	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2014
DATE OF JUDGMENT:	7 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 169
JUDGMENT APPEALED FROM:	DPP v Fernandez (Unreported, County Court of Victoria, Judge Maidment, 16 December 2013)

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CRIMINAL LAW – Appeal – Sentence – Appellant convicted of trafficking methylamphetamine, common assault and stalking – Victim of stalking former girlfriend of appellant – Whether sentence of 42 months’ imprisonment for trafficking manifestly excessive – Whether sentence of 20 months’ imprisonment for stalking manifestly excessive – Appeal allowed – Appellant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	Victor C Andreou
For the Crown	Ms S Borg	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1 I agree, for the reasons given by Priest JA, that this appeal should be allowed. I also agree that the appellant should be re-sentenced as his Honour proposes.

PRIEST JA:

Introduction

2 On 16 December 2013, the appellant pleaded guilty in the County Court to trafficking a drug of dependence, methylamphetamine (charge 1); possessing a drug of dependence, testosterone (charge 2); common assault (charge 3); and stalking (charge 4). He was sentenced to be imprisoned for three (3) years and six (6) months on the first charge; one (1) month on each of charges 2 and 3; and 20 months on charge 4. The judge ordered 10 months of the sentence on charge 4 be served cumulatively with the sentence on charge 1, thus producing a total effective sentence of four (4) years and four (4) months’ imprisonment, upon which the judge fixed a non-parole period of two (2) years and 10 months’ imprisonment.
3 A judge of this Court granted leave to appeal against sentence on 2 April 2014, upon a single ground which complains that, ‘The individual sentences in respect of charges 1 and 4, the total effective sentence and the non-parole period are manifestly excessive’.
4 In my opinion, for the reasons that follow, the appeal should be allowed and the appellant resentenced.
Factual background
5 It is necessary to say something of the offending. In February 2011, when he was aged 36 years, the appellant commenced a romantic relationship with Yasmine Ng, aged 30 years, whom he met over the Internet. The relationship continued for more than a year. During the relationship, it seems that the appellant became increasingly possessive and volatile. In 2012 he developed a drug habit, using up to three quarters of a gram of methylamphetamine (‘ice’) (along with steroids) daily. He also sold methylamphetamine, being described by his counsel on the plea as ‘a fairly typical user/dealer, selling to friends who were users themselves’.
6 On 25 April 2012, the appellant went to Ms Ng’s apartment at about 8.00am, and let himself in with a key that she had given him. Ms Ng was not at home. When she later arrived, she at first told the appellant that she had been with a girlfriend, but later disclosed that she had been at her ex-boyfriend’s residence. This disclosure provoked an outburst, during which the appellant disturbed furniture, threw personal items around and threw a small mirror at Ms Ng (charge 3, common assault). The appellant also took jewellery that he had previously given to Ms Ng, refused to leave the apartment and would not return the key that he had. Concluding that she was no longer safe in the apartment, Ms Ng decided to relocate. Furniture removalists helped Ms Ng pack her things and place them in storage. That evening she stayed at a hotel.
7 Five days after this incident, Ms Ng, in fear of the appellant, travelled to Hong Kong, without informing him of her plans. Several weeks later, the appellant — who had questioned Ms Ng’s relatives and work colleagues concerning her whereabouts — flew to Hong Kong, having learned her location. He persuaded her to return to Australia. In light of her decision to return, Ms Ng’s family sought to involve the Hong Kong authorities and the Australian Federal Police, but she declined their offer of assistance.
8 It is convenient at this point to note some aspects of the appellant’s and Ms Ng’s relationship, which were outlined by the appellant’s counsel on the plea and which were uncontroverted by the prosecution. It seems that from early in their relationship, Ms Ng would check the appellant’s email, telephone messages, call logs and other aspects of his computer use. On one occasion she stole his mobile telephone so as to check on the messages and other data that it contained. The appellant thought that he might have left the phone at a restaurant at which they had dined, but Ms Ng falsely told him that she had contacted the restaurant to ask if it had been found, and had been told by staff that they did not have it. Ms Ng also set up a number of false ‘Facebook’ identities and used those identities to send messages to the appellant in order to check up on him. The appellant would receive messages from the fake identities, disclosing detailed knowledge of his relationship with Ng and questioning him as to whether he was interested in other women. Ms Ng and the appellant referred to the messages as coming from ‘the stalker’. In July 2011 the appellant reported the conduct of ‘the stalker’ to an internet investigation company and later to the police. Ms Ng also said that that she too had sought police help, and she sent bogus messages to herself so as to be able to tell the appellant that she was trying to locate the stalker (from whom she was also receiving messages). She also told the appellant that men were coming to her work, implying that these men may have been the stalker. It was around the time that the appellant went to Hong Kong, and Ms Ng returned to Australia with him, however, that she admitted to being ‘the stalker’, this admission leading to a prolonged argument between the two concerning her activities.
9 On 22 June 2012, Ms Ng having returned to Melbourne and taken up residence with the appellant at Hallam, an incident occurred in which the appellant criticised Ms Ng for alleged infidelity. She falsely claimed that she was attracted to other men. The appellant became very angry. He left the premises briefly, and on 26 June 2012 Ms Ng called the police. Police arrested the appellant.
10 On 27 June 2012, police returned to the appellant’s premises and executed a search warrant. They located various items which included a traffickable quantity of methylamphetamine — 24.5 grams, with a purity of 90 per cent (charge 1, trafficking a drug of dependence), and a quantity of testosterone (charge 2, possessing a drug of dependence), cash in the sum of $30,550, together with a number of vials, pipes and syringes, and a diary detailing transactions.
11 An interim intervention order in favour of Ms Ng against the appellant was made on 27 June 2012, the order being made final on 9 October 2012. The operational period of the order was one year.
12 Following the appellant’s arrest, Ms Ng set up a ‘blog’, a recipient of whom was the appellant. On the plea it was put to the judge by counsel for the appellant that police ‘spoke to her about her blogs and … informed her that it would be a good idea to stop publishing the type of material she was publishing on the internet as part of her blogs’. Counsel also submitted that as a result of what was contained in the blogs, the appellant was ‘confused’ about how Ms Ng felt about him and ‘believed that she was still wanting to be with him’.
13 About eight months after the appellant’s initial arrest, on 27 February 2013 at or around 7.00pm, Ms Ng called police. She told them that she was extremely scared as she had seen the appellant walking around the Southbank area, where she was with a male friend. The male friend resided in an apartment in Southbank and had seen the appellant’s vehicle driving up and down the street (charge 4, stalking). Later that evening the appellant and his vehicle were located in Kavanagh Street, Southbank. A booklet relating to the use of a surveillance tracking device was later found at his home. On 1 March 2013, Ms Ng’s vehicle was inspected by police, who found a tracking device beneath one of the vehicle’s tyre arches. Evidence relating to the tracking device was relied on by the prosecution in proof of the offence of stalking. The appellant gave a false account as to why he had the tracking equipment.
The appellant’s personal circumstances
14 At the time of offending the appellant, who was born in Spain on 4 July 1976, was aged 36 years. He arrived in Australia as an infant with his parents, and is a single man with no children. The appellant left home at 16, because of tension arising from his failure to adhere to his family’s faith, they being Jehovah’s Witnesses. It seems that the appellant also had difficulty at school, where he was teased because of his ethnic background. He supported himself through work in a factory. Later, when aged 18, the appellant’s relationship with his family improved and he returned to the family home, also returning to school where he completed years 11 and 12. Subsequently, the appellant studied at Chisholm TAFE, where he completed a Diploma in Building Design and Drafting.
15 On the plea hearing, counsel tendered several character references. He also relied on a report from a forensic and consultant psychologist, Mr Ian McKinnon, who thought the appellant’s offending to be ‘significantly contributed to by a Substance Abuse Disorder and a Mixed Anxiety and Depressive Reaction’.
16 The appellant had a good work history. Initially he helped his father in his business, before taking up employment with a building firm where he worked as a draftsman and later as a project manager. Following that employment, he commenced his own company, Design Pro, which principally involved him subcontracting to architects in the drafting and designing of residential homes. That venture was brought to an end by his imprisonment in November 2003. Upon release from gaol, between 2004 to 2009 the appellant worked principally as a draftsman, subcontracting to architectural firms, before obtaining work in 2009 as a designer with Porter Davis Homes. In 2011 he commenced work as a Senior Designer with Botanic Homes, where he earned a substantial income.
17 Despite a good work record, however, the appellant had prior convictions. On 17 November 2003, on a charge of kidnapping at common law, the appellant was sentenced in the Supreme Court to be imprisoned for five (5) years, with a non-parole period of two (2) years and six (6) months. And on 19 December 2003, he was sentenced to be imprisoned for a total of four (4) months for burglary, theft and trafficking in a drug of dependence (steroids), such sentence to be served concurrently with the sentence for kidnapping then being undergone.
Discussion
18 In my opinion, the complaint that the sentence on charge 1, trafficking, is manifestly excessive cannot be sustained. The offence was particularised in the indictment as having occurred between 1 February 2011 and 27 June 2012. In his reasons for sentence, having observed that, when executing a search warrant, police had located items ‘items’ that ‘associated’ the appellant with trafficking in methylamphetamine and the possession of testosterone, the judge said:
Those items, I think 24.5 grams of methylamphetamine at 90 per cent purity and other items found, along with the witness statement of Ms Ng, provided the basis for a charge of trafficking in methylamphetamine between 1 February 2011 and 27 June 2012, when those items were discovered. The details of precisely what the trafficking consisted of during that period of 16 months or so, during which the trafficking occurred, is — to use your counsel's expression — attended by a degree of vagueness. It was submitted that essentially I should approach the charge of trafficking on the basis that you were a user of methylamphetamine, or ice, and that you were trafficking essentially to support your habit, which no doubt was an expensive one.
Beyond that, there is not a great deal of detail provided by Ms Ng in her statement, other than to suggest that there were regular attendees at your premises who were apparently purchasing methylamphetamine from you and providing you with what seemed to her to be quite substantial sums of money for the methylamphetamine that you were supplying to them. I do not think that I can make any more solid findings of fact as to the nature of your trafficking than that. It seems to me that the trafficking was on a relatively modest scale, but the significant aggravating feature of the offence to which you pleaded guilty to is that it was being conducted over a period of about 16 months, although it was submitted that perhaps the more significant trafficking occurred from early 2012 onwards.
Nevertheless, that trafficking occurred over a substantial period of time and involved you putting into the community methylamphetamine, for which you were paid. It is a very serious offence. …
19 In this Court it was submitted by the appellant’s counsel that the bulk of the appellant’s trafficking had occurred over a period of four to five months, rather than a period of some 16 months. In circumstances where the appellant was himself a user, it was submitted that the sentence of three years and six months’ imprisonment for the charge of trafficking ought to be considered to be manifestly excessive.
20 The sentencing judge seems to have accepted that ‘the more significant trafficking occurred from early 2012 onwards’, but that nevertheless this constituted a substantial period. Moreover, the judge seems to have accepted that the trafficking was on a relatively modest scale, and was engaged in by the appellant to support his own habit. It cannot be ignored, however, that the appellant has a prior conviction for trafficking in a drug of dependence for which he was imprisoned (albeit the drug was steroids, not methylamphetamine). As the judge put it, the prior conviction ‘ought to have been a shot across [his] bows, a warning as to the consequences of getting caught trafficking in drugs’. Of course, he is not to be punished again for his prior offences; but the appellant’s antecedents are relevant as bearing on his moral culpability, his prospects of rehabilitation, community protection, and as emphasising the importance of specific deterrence in the sentencing process.
21 Making due allowance for the appellant’s good work record, and the material attesting to his good character, I am unpersuaded that the sentence imposed for the charge of trafficking is outside the range of those open in the proper exercise of the sentencing discretion. When it came to trafficking illicit substances the appellant was not a first time offender. Not only was specific deterrence thus of particular importance in the sentencing process, but general deterrence, just punishment and denunciation needed to be given due weight. Whether the period be 16 months or closer to five months, as Ms Ng’s account of his activities established, the appellant actively trafficked in an illegal drug over a substantial period. When his offending was detected, he was found in possession of 24.5 grams of methylamphetamine, having a purity of 90 per cent, together with paraphernalia related to trafficking. In my view, the sentence passed properly reflects the circumstances of the appellant and the relevant features of the offending.
22 I take a different view, however, of the sentence on charge 4, stalking. In my opinion the sentence of 20 months’ imprisonment is, in all of the circumstances, manifestly excessive. The offence consisted of the appellant effecting the placement of a tracking device on Ms Ng’s car; walking in an area where Ms Ng was with her boyfriend; and driving up and down the street in Southbank where her boyfriend resided. Counsel submitted in this Court that the appellant’s intention was reckless, in that he should have appreciated that his conduct had the capacity to raise an apprehension of fear in Ms Ng. He also submitted that the surveillance carried out by the appellant was over a period of only one hour on one day; although he acknowledged that the offence was perpetrated in circumstances of what he described as ‘double aggravation’, in that the stalking both breached an intervention order and was committed whilst the appellant was on bail.
23 In my view, the placement of the tracking device on Ms Ng’s car required a degree of premeditation, and can only have been done for the purpose of knowing her location. Moreover, by going to the general area where the appellant must have known Ms Ng to be, and by driving up and down the street where her boyfriend resided, the appellant must have been aware that he was breaching the intervention order — which was designed to protect Ms Ng from the appellant’s unwanted attentions — whilst he was on bail for other offences.
24 Despite these features of the offending, in my opinion the sentence of 20 months’ imprisonment imposed was outside the range of sentences open in the sound exercise of the sentencing discretion. Acknowledging the limitations of recourse to ‘comparative’ sentencing cases, the sentence imposed in this case stands in marked contrast to sentences imposed in other objectively more serious cases of stalking. By way of example, in Wilson, individual sentences of 10 months, three (3) months and six (6) months’ imprisonment respectively were imposed on three charges of stalking, with some concurrency resulting in a total effective sentence of 15 months’ imprisonment, upon which a sentence of six (6) months was fixed. The offending involved three female victims, whose names the applicant had linked to pornographic internet sites, and in the case of two victims, whose photographs had been placed on such sites, in circumstances where the applicant had previously stalked one of the victims. In the case of Smith, a sentence of 18 months’ imprisonment was imposed for stalking. That case involved threats being scrawled on the walls of the victim’s flat; the leaving behind in the victim’s flat of a bag containing cable ties and Tarot cards; as well as the sending of a ‘vile, hate-infused text message’ to the victim; all of which was ‘calculated to terrify [the victim] and did so, having lasting effects on her and her family’. The sentence was described as ‘stern’ when compared with other cases (although still within the reasonable exercise of the sentencing discretion).
25 Recognising the limitations of resort to ‘like’ cases, Wilson and Smith fortify my strong impression that the sentence in this case is manifestly excessive. Thus the appeal ought to be allowed with respect to the sentence on charge 4. Having regard to all of the circumstances, including the fact that the offence was committed whilst on bail, and in breach of an intervention order, I would substitute a sentence of nine (9) months’ imprisonment.
Conclusion
26 I would confirm the sentences on charges 1, 2 and 3, and impose a sentence of nine (9) months’ imprisonment on charge 4. I would order that six (6) months of the sentence on charge 4 be served cumulatively with the sentence on charge 1, thus producing a total effective sentence of four (4) years’ imprisonment, upon which I would fix a non-parole period of two (2) years and six (6) months.
27 I would confirm all other ancillary orders made by the County Court.
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[2014] VSCA 169

7 August 2014