JUDGES:	WEINBERG, WHELAN and BEACH JJA
WHERE HELD:	WARRNAMBOOL
DATE OF HEARING:	22 July 2014
DATE OF JUDGMENT:	7 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 168
JUDGMENT APPEALED FROM:	DPP v Gale (Unreported, County Court of Victoria, Judge Gamble, 3 May 2013)

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CRIMINAL LAW – Conviction – Application for leave to appeal – Applicant pleaded guilty to threatening to inflict serious injury – Whether, notwithstanding plea of guilty, phrase ‘I will fuck you up’, as texted to victim, so imprecise as to fall short of satisfying actus reus of offence – When viewed in light of surrounding circumstances (stalking and aggravated burglary), elements of offence established – Application refused.

CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant pleaded guilty to stalking (two counts), aggravated burglary and threatening to inflict serious injury – Applicant used GPS and listening devices to track estranged ex-wife and her partner – Broke into ex-wife’s home armed with cattle prod and verbally abused occupants before fleeing – Sent text message shortly thereafter with phrase ‘fuck with me or my family I will fuck you up’ – Sentenced to four years and six months’ imprisonment with non-parole period of two years and six months – Sentences imposed on stalking charges (18 months and nine months respectively) and charge of making threat to inflict serious injury (12 months) manifestly excessive – Sentence imposed on aggravated burglary within range – Leave granted – Appeal allowed – resentenced accordingly.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M J Gibson	Barry Kenna & Co
For the Crown	Ms F Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
WHELAN JA
BEACH JA:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Stalking [s 21A Crimes Act 1958 (Vic)]	10 years	18 months	6 months
2.	Stalking [s 21A Crimes Act 1958 (Vic)]	10 years	9 months	3 months
3.	Aggravated burglary [s 77 Crimes Act 1958 (Vic)]	25 years	3 years 6 months	Base
4.	Threat to inflict serious injury [s 21 Crimes Act 1958 (Vic)]	5 years	12 months	3 months
Total Effective Sentence:		4 years 6 months’ imprisonment
Non-Parole Period:		2 years 6 months’ imprisonment
Pre-Sentence detention:		Nil
Section 6AAA Statement: 5 years and 6 months’ imprisonment, with a non-parole period of 3 years.

On 1 May 2013, the applicant pleaded guilty, in the County Court at Warrnambool, to two charges of stalking (charges 1 and 2), one charge of aggravated burglary (charge 3), and one charge of threat to inflict serious injury (charge 4). He was sentenced as follows:

Background facts

The applicant, and Kaye Gale had been married for 21 years. They had lived together in Grassmere. In September 2012, Ms Gale left the applicant, and moved to Warrnambool.

Between September 2012 and October 2012 the applicant acquired various GPS tracking devices, and a listening device. On 9 September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gale v The Queen

Details

AGLC: Gale v The Queen [2014] VSCA 168
Case: [2014] VSCA 168
Decision Date: 7 August 2014

CaseChat Overview and Summary

In Gale v The Queen, the applicant sought leave to appeal against his conviction and sentence for stalking, aggravated burglary, and threatening to inflict serious injury. The applicant, having pleaded guilty, contested the sufficiency of the actus reus of the offence related to the threatening text message he sent to his estranged ex-wife. Additionally, he challenged the severity of the sentences imposed, arguing they were manifestly excessive. The court considered whether the text message, in the context of the surrounding circumstances, sufficiently satisfied the actus reus of the offence and if the sentences imposed were appropriate.

The legal issues before the court were whether the phrase 'I will fuck you up', as communicated via text message, was sufficiently precise to meet the requirements of the actus reus for the offence of threatening to inflict serious injury. The court also had to determine if the sentences imposed were manifestly excessive given the nature of the offences and the principles of sentencing. The court examined the surrounding circumstances, including the stalking and aggravated burglary, to assess whether they corroborated the threatening nature of the text message.

The court concluded that the text message, when viewed in the context of the stalking and aggravated burglary, sufficiently established the actus reus for the offence of threatening to inflict serious injury. The court found that the applicant's use of GPS and listening devices, breaking into the victim's home armed with a cattle prod, and the subsequent threatening text message, all contributed to the elements of the offence. Regarding the sentence, the court agreed that the sentences imposed on the stalking charges and the threat to inflict serious injury were manifestly excessive. However, the sentence for the aggravated burglary was deemed appropriate. The court granted leave to appeal, allowed the appeal, and resentenced the applicant accordingly.

The court ordered that the sentences for stalking and the threat to inflict serious injury be reduced, while affirming the sentence for the aggravated burglary as appropriate. The new sentences were imposed, reflecting a more balanced and proportionate approach to the applicant's offending behaviour.

Orders