Hellings v The Queen

Case [2003] WASCA 208

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   HELLINGS -v- THE QUEEN [2003] WASCA 208

CORAM:   MURRAY J

WHEELER J
MCLURE J

HEARD:   21 MAY & 14 JULY 2003

DELIVERED          :   3 SEPTEMBER 2003

FILE NO/S:   CCA 60 of 2002

CCA 61 of 2002
CCA 125 of 2002

BETWEEN:   STEVEN ALLAN HELLINGS

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Stalking - Difference between indictable and simple offences - Consideration of alternative verdicts - Threats of detriment - Admissibility of evidence of relationship - The strength of the evidence of making the threat

Sentences of 6½ years and 5 years imprisonment cumulative upheld - Refusal of parole eligibility upheld - turns on own facts

Legislation:

Criminal Code (WA) s 338D, s 338E

Result:

Appeals against conviction dismissed
Leave to appeal against sentences refused

Category:    A

Representation:

Counsel:

Applicant:     Mr L Levy

Respondent:     Mr B Fiannaca and Mr C Williams

Solicitors:

Applicant:     Laurie Levy & Associates

Respondent:     State Director of Public Prosecutions

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

Conway v The Queen (2002) 209 CLR 203

De Gruchy v The Queen (2002) 76 ALJR 1078

Gipp v The Queen (1998) 194 CLR 106

Herbert v The Queen [2003] WASCA 61

Jarvis v The Queen (1993) 20 WAR 201

Jones v The Queen (1997) 191 CLR 439

King v The Queen [2001] WASCA 198

M v The Queen (1994) 181 CLR 487

MFA v The Queen (2002) 77 ALJR 139

Stanton v The Queen (2001) 24 WAR 233

Stanton v The Queen [2003] HCA 29

Thompson v The Queen (1992) 8 WAR 387

Veen v The Queen (No 2) (1988) 164 CLR 465

Wilde v The Queen (1988) 164 CLR 365

Case(s) also cited:

Bensegger v The Queen [1979] WAR 65

Howell & Utting v The Queen (1989) 2 WAR 60

Lowndes v The Queen (1999) 195 CLR 665

McComish v R, unreported; CCA SCT of WA; Library No 980529; 16 September 1998

Pfennig v The Queen (1995) 182 CLR 461

R v Garlett (2000) 111 A Crim R 336

R v Marsh [2000] NSWCCA 370

R v Wright [1999] 3 VR 355

  1. JUDGMENT OF THE COURT:  There are three matters before the Court; two appeals against conviction and one application for leave to appeal against sentences.

The basic chronology

  1. In March 1997 the applicant met a woman, the complainant.  By April of that year they had commenced a relationship.  To say that the relationship soon became troubled and beset by conflict is something of an understatement.  In September 1997 and March 1998 the complainant sought and obtained two restraining orders, but nonetheless contact continued between the complainant and the applicant until finally, in December 1998, the complainant was determined to have nothing more to do with the applicant, with whom she was not then living.  She changed her telephone number, delisted it and applied for yet another violence restraining order.  That order was served on the applicant on 4 January…

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AGLC
Hellings v The Queen [2003] WASCA 208
Case
[2003] WASCA 208
Decision Date

CaseChat Overview and Summary

Hellings v The Queen involves two appeals against conviction and one application for leave to appeal against sentences. The applicant, Hellings, was convicted of aggravated stalking in breach of a violence restraining order. The appeals against conviction concern the consideration of alternative verdicts and the admissibility of evidence of the relationship between Hellings and the complainant. The application for leave to appeal concerns the sentences imposed. The Court was required to determine whether the trial judge erred in failing to consider an alternative verdict of the simple offence of stalking, whether the trial judge erred in admitting evidence of the relationship, and whether the sentences were appropriate.

The Court held that the trial judge did not err in failing to consider the alternative verdict of the simple offence of stalking, as it was not an available verdict under the circumstances of the case. The Court also held that the trial judge did not err in admitting evidence of the relationship, as it was relevant to the context of the threatening letter sent by Hellings to the complainant. The Court held that the sentences were appropriate, taking into account the seriousness of the offences and the need to deter Hellings and others from committing similar offences. The Court upheld the sentences of 6½ years and 5 years imprisonment, as well as the refusal of parole eligibility.

The Court dismissed the appeals against conviction and the application for leave to appeal against sentences. The convictions and sentences were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHEELER J
JUDGMENT OF THE COURT: There are three matters before the Court; two appeals against conviction and one application for leave to appeal against sentences. In March 1997 the applicant met a woman, the complainant. By April of that year they had commenced a relationship. To say that the relationship soon became troubled and beset by conflict is something of an understatement. In September 1997 and March 1998 the complainant sought and obtained two restraining orders, but nonetheless contact continued between the complainant and the applicant until finally, in December 1998, the complainant was determined to have nothing more to do with the applicant, with whom she was not then living. She changed her telephone number, delisted it and applied for yet another violence restraining order. That order was served on the applicant on 4 January 1999 and it became final on 27 January 1999. The applicant was charged with an offence of aggravated stalking allegedly committed between 24 January and 25 March 1999. The circumstance of aggravation relied upon was that the conduct of the applicant in committing the offence constituted a breach of the violence restraining order. That is a circumstance of aggravation in respect of such an offence by virtue of the Criminal Code (WA), s 338D(1)(b)(i). The offence itself is defined by s 338E(1). It is committed by a person "who pursues another person with intent to intimidate that person or a third person". The words "intimidate" and "pursue" are defined in s 338D. The offence is naturally more serious if committed in circumstances of aggravation and the maximum penalty rises from imprisonment for 3 years to imprisonment for 8 years if the offender is convicted on indictment. By s 598AA of the Code, on an indictment charging a person with an offence under s 338E(1), the person may be convicted of the simple offence defined by s 338E(2). That offence is committed by a person who "pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person or a third person". As we say, it is a simple offence and whether the offender is convicted of it summarily or as an alternative offence open on an indictment for the indictable offence of stalking, the punishment available is imprisonment for 12 months or a fine of $4000. The trial of the first indictment was to take place in the District Court commencing on 13 December 2000. When the case was called, the applicant failed to appear and a bench warrant was issued for his arrest. He was ultimately arrested on 8 January 2001, but in the meantime his conduct towards the complainant attracted a further charge of aggravated stalking between 13 December 2000 and 4 January 2001. Again, that charge was laid under the Code, s 338E(1)(a), an offence committed with intent to intimidate the complainant. Again, the circumstance of aggravation relied upon was the breach of the continuing violence restraining order. The trial of the first indictment for stalking was relisted for 18 to 22 June 2001. On 10 May 2001, the complainant received a letter, obviously addressed to her and allegedly sent by the applicant. It was in an envelope, on five sheets of paper, closely handwritten on both sides of each sheet. It is one of the most vitriolic, threatening and appallingly venomous documents which we have ever had the misfortune to read. It is abusive in the extreme and it soon gets to the point. Four lines into the letter it says:"Right now I would walk in your face fucking arsehole and smash your teeth down your fucking cocksucking throat you fuck. You lady have not even begun to know what is going to happen to you you fucking using whore if you choose to go near a fucking court with your filthy fucking lies you fucking idiot."

Ratio Decidendi

Legal Principle Established

Established by: WHEELER J

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