Gilmour v The State of Western Australia

[2008] WASCA 42

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   GILMOUR -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 42

CORAM:   WHEELER JA

BUSS JA
MILLER JA

HEARD:   20 FEBRUARY 2008

DELIVERED          :   28 FEBRUARY 2008

FILE NO/S:   CACR 51 of 2007

BETWEEN:   DOUGLAS ROBERT GILMOUR

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :GROVES DCJ

File No  :IND 681 of 2006

Catchwords:

Criminal law - Sentencing - Aggravated stalking - Attempt to pervert the course of justice - Whether sentence manifestly excessive

Legislation:

Nil

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr S A Walker

Respondent:     Mr J A Scholz

Solicitors:

Appellant:     Stephen Walker

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Rauhina v The Queen [2002] WASCA 91

Sherwood v The Queen (Unreported, WASCA, Library No 980534, 16 July 1998)

1. WHEELER JA:  On 30 March 2007, the appellant was convicted after trial of aggravated stalking and attempting to pervert the course of justice.  He received a term of 4 years' imprisonment in respect of the aggravated stalking and 10 months in respect of the attempt to pervert the course of justice, to be served cumulatively.  Leave was granted in respect of two grounds of appeal.  The first contends that the sentence of 4 years' imprisonment in respect of the offence of aggravated stalking was manifestly excessive, particularly in view of the appellant's antecedents.  The second ground asserts that his Honour erred by imposing cumulative sentences, since that had the result, it is submitted, that the total effective sentence of 4 years 10 months was disproportionate to the gravity of the appellant's offending. 

The circumstances of the offences

1. The complainant and the appellant met in 1999 and were married in 2000.  They had two daughters, who would have been roughly 2 and 3 years of age at the time of the offending.  Their relationship ended in February 2004, when the complainant and the children moved out of the family home. 

2. From around February 2005, the complainant noticed the appellant following her wherever she went.  In addition, items disappeared from her home, including items of considerable importance or personal significance, such as her passport, a divorce kit, an engagement ring, and clothing.  Mail which she had expected failed to arrive.  Later, mail addressed to the complainant was found at the appellant's house, and he was found in possession of ladies' underwear which belonged to the complainant.

3. In 2005, the complainant hired Mr Crockett to do some work at her home.  She and Mr Crockett became friends.  Mr Crockett, for reasons which are not entirely clear from the remarks of the learned sentencing judge, installed security cameras at his home.  On 10 April 2005, he returned home from the complainant's home to discover his cactus garden had been damaged and, on 12 April 2005, he obtained a violence restraining order against the appellant.  On 16 April 2005, there was an incident at the complainant's home which led to the appellant being charged with a breach of this order. 

4. On 23 April 2005, there was an incident involving the appellant and the complainant during which the complainant asked the appellant to cease his behaviour, or she would call the police.  This incident led to the appellant being charged with assault and damage.  The appellant was, in due course (in May 2006), acquitted of the charge of assaulting the complainant, but convicted in respect of a library book which was damaged.

5. Notwithstanding the existence of the restraining order taken out by Mr Crockett, the complainant's request and threats to call the police, and the fact that the appellant had been charged, he continued to follow the complainant and park near her home.  He telephoned her and then did not speak.  The complainant also reported hearing other noises in the night, which appear to have been attributable to the appellant.  On 24 April 2005, the complainant telephoned Mr Crockett because she was frightened, and Mr Crockett went to her house and discovered the appellant in her garden.  The following day, he installed security cameras at the complainant's home, and on 26 April she obtained a violence restraining order against the appellant.

6. Despite the existence of the violence restraining order taken out by the complainant, she continued to notice odd occurrences around her home.  For example, one of the external lights at her residence was changed, so that the clear, or white, light globe was exchanged for a red one.  On 6 June 2005, security cameras at her home recorded a person on her property.  On 13 June, these cameras recorded a person on her property, wearing a gorilla mask, and with a knife in hand.  The complainant recognised the appellant on each occasion by his walk and gait, and build.

7. On 14 June, police executed a search warrant at the appellant's home, and searched his car.  As I have noted, mail addressed to the complainant was found at his home.  A black jacket was found in his car and in its pockets were a knife and pliers.  Also found in the car were a length of cable, and a gorilla mask.  The appellant's DNA was found on the jacket, although the appellant denied having seen it before.  Having regard to the implications of those items, the appellant, having been charged, was held in custody and was refused bail. 

8. It can be seen that the stalking was in a very serious category of aggravated stalking.  It took place over a period of some three and a half months, and ceased only when the appellant was taken into custody.  It consisted of repeated and persistent conduct, in circumstances where the complainant had clearly requested the appellant to desist, and the appellant was on notice that both she and Mr Crockett were taking lawful and appropriate means to attempt to protect themselves.  It was conduct which escalated over time, as demonstrated particularly by the appellant attending at the complainant's house on 13 June 2005 and carrying a knife. 

9. There were four statutory circumstances of aggravation present, they being that the appellant was armed with a knife, the fact that he was in breach of a violence restraining order, the fact that he was in a family and domestic relationship with the complainant, and the fact that, on one occasion, a child was present (the appellant's child from a previous relationship, who was with the appellant on one occasion when he attempted to intimidate the complainant).  I would further note that the appellant's own two small daughters were, as the appellant well knew, living with the complainant at all relevant times, and they were, of course, seriously affected by the appellant's behaviour, both directly and as a result of their mother's fears.  The appellant cannot have failed to appreciate the effects upon them. 

10. So far as the attempt to pervert the course of justice is concerned, on 14 June 2005, the appellant requested his neighbours to provide him with an alibi for the previous evening (being the night of the "gorilla mask" event).  That alibi was to have been to the effect that he was at a barbecue at their house.  That was effectively the story which the appellant told the police in his videotaped interview.  The attempt succeeded to the extent that his neighbours did tell the police a false story when first asked about the matter.  However, once they realised that the police considered that story to be false, they then revealed both the true position and the appellant's role in requesting that the false story be told.

The stalking sentence

1. It is clear from the ground of appeal that it is not asserted that his Honour made any error of law, failed to take account of any relevant consideration, or took account of any irrelevant consideration.  Rather, it is suggested that, having regard to the appellant's antecedents, the sentence was manifestly excessive. 

2. The relevant mitigating circumstances, however, are few.  It is submitted that the appellant was a "previously law‑abiding citizen".  That may not be accurate, since there is, in the antecedent report, a relevant prior offence, being a breach of a domestic violence order in 1994 in the ACT.  However, we were informed by counsel that the appellant maintained that he had, at the time of sentencing, disputed this conviction.  The relevant submissions, unfortunately, were not transcribed, and counsel who appeared for the State had not been trial counsel.  I would therefore put aside that conviction, and approach the appellant, as his Honour did, as a first offender.  However, that is effectively all that is said in the appellant's favour.  There is no material suggesting exceptionally good character, in the sense of previous contribution to the community, or anything of that kind, and, against that lack of prior conviction, there must be put the determined and persistent pursuit of the complainant, in circumstances where she had obtained a restraining order against him and in circumstances where he had been charged with offences arising out of his conduct towards her.  That flagrant disregard for the law and escalating misconduct towards the complainant suggests a need for a very strong personal deterrent.

3. It is also submitted on behalf of the appellant that, as a result of his offending behaviour, he had lost his home and car.  That is, of course, a not unusual result of imprisonment in circumstances where an offender who commits serious offences has previously been employed.  As Kennedy J noted in Sherwood v The Queen (Unreported, WASCA, Library No 980534, 16 July 1998) at 7:

   The imprisonment of any offender is likely to have an impact, often a considerable impact, upon him; but the consequences must be accepted if imprisonment is required, as it was in this case.

4. The written submissions also make reference to the appellant's loss of his children, since it appeared, at least at the time of sentencing, that the complainant intended to leave Australia and to live elsewhere, taking the two small children with her.  Further, the child from his first marriage, who had been in his care, had of course, because of his arrest, been taken by her mother.  In my view, it does not lie in the mouth of an offender who has so persistently engaged in conduct likely to be extremely detrimental to his young children to then rely in mitigation upon the fact that he may be deprived of contact with them. 

5. In my view, the sentence imposed in respect of the offence of aggravated stalking was proportionate to the appellant's criminality.  Such personal circumstances as were favourable (being, in effect, only the absence of a prior record) could have limited weight in the circumstances, having regard to the apparent absence of any remorse and the clear need for personal, as well as general, deterrence.

Totality

1. The offence of attempting to pervert the course of justice is a serious one.  As I noted in the case of Rauhina v The Queen [2002] WASCA 91, the offence of attempting to pervert the course of justice strikes at the

heart of the criminal justice system and there is a need for general deterrence in such cases. Although there is no tariff for such an offence, the giving of a false name to police, entering into a false recognisance and the like, in the context of traffic offences, have not unusually attracted sentences of imprisonment of the order of 12 to 18 months (equating to 8 to 12 months subsequent to the transitional provisions). More serious examples of this type of offence have attracted significantly longer sentences (at [16]).

1. I would regard this offence as a more serious offending than the giving of a false name to police or entering into a false recognisance.  The offence concerned an attempt to pervert the course of justice in relation to an offence of a relatively serious nature, being the offence of aggravated stalking.  Further, unlike the typical "false name" case, where often only a single offender is involved, this involved a deliberate attempt to persuade innocent and unconnected third parties to engage in criminal conduct.  The term of 10 months' imprisonment was therefore, in my view, a relatively lenient sentence for this offence. 

2. It was, as the learned sentencing judge noted, an offence committed subsequent to the commission of all the matters which go to make up the stalking count and, I would add, it involved the invasion of a quite distinct legal interest.  In those circumstances, there was, in my view, no error in his Honour making the sentence of 10 months wholly cumulative upon that of 4 years. 

Conclusion

1. I would therefore dismiss the appeal.

2. BUSS JA:  I agree with Wheeler JA.

3. MILLER JA:  I agree with Wheeler JA.