Hellings v The Queen
[2003] WASCA 208
•3 SEPTEMBER 2003
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
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
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."
The whole ten pages are written in such terms and the document ends as it begins. The applicant was charged in respect of that letter, with making a threat with intent to prevent the complainant doing an act she was lawfully entitled to do, contrary to the Code, s 338A(c). The act which it was alleged there was an intent to prevent was the act of giving evidence against the applicant at the trial of the offence of stalking listed to commence on 18 June 2001, or indeed any such trial. The offence as indicted is punishable under s 338A(f) by imprisonment for 7 years.
The trial by jury of the first aggravated stalking charge proceeded on 18 to 22 June 2001. The applicant was acquitted of the indictable offence and convicted of the alternative simple offence. He was ultimately sentenced to imprisonment for 7 months. The applicant had been in prison on remand and serving sentences for traffic offences since 8 January 2001, the date upon which he was arrested. The service of this 7-month term was completed on 14 October 2001.
The applicant was tried before a different District Court judge and two juries, separately, for the offence of aggravated stalking allegedly committed between 13 December 2000 and 4 January 2001 and the threatening letter received by the complainant on 10 May 2001. He was tried first for the offence of aggravated stalking on 12 to 14 March 2002. He was convicted as charged and that therefore exposed him to the punishment of imprisonment for 8 years. He was then tried for the threatening letter on 18 to 20 March 2002 and was again convicted, thus exposing him to punishment by imprisonment for 7 years. On 20 May 2002, for these offences, the applicant was sentenced respectively to terms of 6½ years imprisonment and 5 years imprisonment. The second such term was ordered to be served cumulatively and the sentences were to date from 14 October 2001. The aggregate term of 11½ years imprisonment was imposed without eligibility for parole.
The applicant appeals or seeks leave to appeal against both convictions and the sentences imposed. We propose to deal with the appeals against conviction in the order in which the convictions occurred, the stalking case first, followed by the threat case. We will then deal with the application for leave to appeal against the sentences imposed to the extent that may be necessary. We turn first then to the grounds of appeal in relation to the stalking case.
The stalking conviction – the direction about the alternative verdict
As we have said, the applicant was indicted for and convicted of the offence of aggravated stalking. If the applicant was guilty of the stalking offence then the circumstance of aggravation by way of breach of the violence restraining order was admitted and the trial was approached by counsel and the Judge, properly, on the basis that while the jury might have to make that finding of the existence of the circumstance of aggravation as a matter of law, if they were to convict of the offence charged the question would not detain them for any length of time.
As to the statutory alternative of conviction of the simple offence of stalking, it will have been noticed when we referred to the way in which these offences are defined by the Code, s 338E(1) and (2), that the elements of the offences are distinctly different. The concept of a person pursuing another is the common element. The more serious indictable offence adds the element of an intent to intimidate, but conviction of that offence does not depend upon proof that the victim was in fact intimidated. On the other hand, the simple offence of stalking, which could not therefore be charged on indictment and is only available as a latent alternative on an indictment for the indictable offence, does not require proof of an intent to intimidate, but does require that the conduct of the offender by way of pursuing the complainant is of a kind that not only could reasonably be expected to intimidate another, but that it does in fact do so.
We take it then that this is the position. The more serious indictable offence of stalking is committed by pursuit with intent to intimidate, even if the victim is sufficiently strong-willed or robust in character that he or she is not intimidated, or whether or not the person is in fact intimidated. To commit the less serious simple offence there must be pursuit of a kind which does in fact intimidate the victim. However, the intimidatory quality of the pursuit is not an entirely subjective matter dependent only upon whether the particular victim is intimidated in any manner defined by the Code, but the quality of the pursuit must be such that, objectively, an ordinary person in the position of the complainant might reasonably be expected by the jury to be intimidated.
We should say at once that our researches have revealed no authoritative decision to the above effect. What we have written is our interpretation of s 338E of the Code when read with the interpretation section, s 338D. The essential point for present purposes is to note the difference in the definition of the offences and that the only way in which a jury may convict of the offence defined in s 338E(2) is as an alternative to conviction upon indictment of the offence defined in s 338E(1).
The trial Judge, in our opinion, properly defined both offences in terms which were sufficient having regard to the evidence in the case before the court. In telling the jury how they might come to consider the alternative offence, just prior to the jury's retirement his Honour repeated what had apparently been said by both counsel:
"As both counsel told you yesterday, if you are not satisfied beyond reasonable doubt that Mr Hellings was pursuing her with the intention to intimidate her, there is an alternative verdict which is open to you, but you do not have to consider the alternative verdict if you are satisfied beyond reasonable doubt that the charge has been proved that the Crown has laid; namely, that he did pursue her with that intention. It is only if you are not satisfied that that is the case, that that is what his intention was, that you have to consider the alternative verdict …".
His Honour went on to summarise the elements of the alternative offence and spoke about unanimity of verdict. He added:
"In relation to the alternative, if you find him not guilty as charged, then it is the only time you are going to be asked for the alternative."
It is complained of this direction that it had the effect of dictating to the jury the manner in which they ought to approach their fact-finding task and that in the result the alternative verdict may not have been considered by the jury at all and the applicant may have lost the chance of being acquitted of the more serious offence and being convicted of the lesser alternative.
In our opinion, in view of the fact that the applicant was convicted of the more serious offence, having been properly instructed as to the law in that regard, there is no prospect of a miscarriage of justice of the kind identified by the applicant in argument in support of this ground.
The direction does not commit the error of law identified by this Court in Stanton v The Queen (2001) 24 WAR 233. It did not effectively foreclose the jury from deliberations upon the lesser alternative and it did not instruct them that the only basis upon which the verdict of guilty of the lesser alternative might be returned was that the jury were unanimously persuaded that the accused was not guilty of the more serious offence. The jury were told that it would be open to return a verdict of guilty of the lesser offence if they were not unanimously persuaded beyond reasonable doubt to convict of the offence charged in the indictment. There is a wealth of difference between being unanimously persuaded that the accused is not guilty and failing to be unanimously persuaded that the accused is guilty. That was the point of Stanton and the direction given by the trial Judge in this case was nothing like that given in Stanton.
We should note that on appeal to the High Court: Stanton v The Queen [2003] HCA 29, 29 May 2003, the point now mentioned was further discussed. Our reading of the judgments in the High Court does not reveal disagreement as to the law or the terms in which a jury may be directed in relation to the manner in which they go about their task or the manner in which verdicts are to be returned. At par [41] the majority, Gleeson CJ, McHugh and Hayne JJ, expressed the view that the interpretation of the crucial direction by the trial Judge in that case which had been placed upon it by this Court was incorrect and on that basis upheld a notice of contention. The minority, Gummow and Callinan JJ, on the other hand, identified error in the same terms as members of this Court, but disagreed with the majority of this Court, Malcolm CJ and Murray J, in respect of the application of the proviso. Like Owen J in this Court, the minority would in that case have ordered a new trial.
It remains clear, in our view, that in a case where the law provides alternative verdicts to the offence charged in the indictment the jury may consider the various alternatives in the manner of their choosing. When they reach a verdict, whether guilty or not guilty of any offence open on the indictment, their verdict must have the degree of unanimity prescribed by law: Juries Act 1957 (WA), s 41. If the jury, when asked for their verdict, convict of the most serious offence open on the indictment, that is a general verdict into which merge all alternatives open on the indictment and the jury will not be questioned further, unless in respect of a circumstance of aggravation or in relation to some other material specific fact: Code, s 642.
If the jury return a verdict of a lesser offence open on the indictment that, necessarily, is also a general verdict which disposes of any more serious offence open on the indictment so that the accused may not again be placed in jeopardy of conviction of any such offence. Such a verdict necessarily implies the necessary degree of agreement that the jury were not persuaded of guilt of the more serious offence beyond reasonable doubt. The directions given by the trial Judge must ensure that that is the case. Putting to one side the debate about whether the words used by the trial Judge in Stanton involved any error of law in that regard, it is abundantly clear, in our opinion, that the words used by his Honour in this case did not involve any error and this ground is not made out.
A related ground asserts that the trial Judge erred by directing the jury that if they were satisfied that the applicant had breached the restraining order, he would be guilty as charged. The argument put in support of this ground contends that the way in which this was put may have caused the jury to overlook the real issue in arriving at their guilty verdict, whether there was an intent to intimidate.
In our opinion, this ground is without merit. The trial Judge properly instructed the jury on the elements of the indictable offence of stalking. He spoke of the concept of pursuit, the need to find the intent to intimidate and that the conduct of the applicant must constitute a breach of the violence restraining order. In elaborating on the concepts involved the trial Judge laid no emphasis upon breach of the violence restraining order. This was not surprising because there had been an informal admission of the breach. In fact, the applicant made the admission in the course of pleading not guilty.
At the end of his Honour's charge to the jury, after again reminding them of the verdicts open, his Honour said:
"Just one matter I perhaps did not stress to you was the final element of being in breach of the restraining order. Now, that really has not been an issue in this case. You have a copy of the restraining order there. You know what the terms of the order are. Contacting her by telephone, as I mentioned to you before, is sufficient to breach that restraining order. If that is the case, then he would be guilty as charged."
His Honour was simply reminding the jury of the existence of the circumstance of aggravation, but he was not saying that merely to find a breach of the violence restraining order would be sufficient to convict the applicant of the offence charged in the indictment. This ground should not be upheld.
Evidence of relationship
The remaining two grounds of appeal in relation to the stalking conviction are concerned with the question of evidence of the relationship between the complainant and the applicant. The first of these grounds of appeal complains about what is said to be inadmissible evidence led from the complainant. The issue arises against the background that the matter was discussed between counsel prior to the trial commencing.
Prosecuting counsel wrote to defence counsel confirming a telephone conversation and setting out the proposal to lead "the background material of the relationship between the accused and the complainant" which counsel put as necessary for the jury to properly adjudicate upon the applicant's behaviour during the period of the indictment, 13 December 2000 to 4 January 2001. The letter dealt with some particularity with the topics to be covered – how their relationship started and when, how long it lasted, the circumstances in which it was ended, that the applicant persisted in attempting to continue it, the history of this period and of the grant of restraining orders, their removal and why, "episodes of violence" towards the complainant by the applicant leading to the grant of a violence restraining order and its removal, further violence towards the complainant by the applicant, the final termination of the relationship, the obtaining of another violence restraining order, the changing of the telephone number and the events of the period covered by the indictment, leading to a complaint to the police, the investigation and the subsequent charge.
Before opening the Crown case and in the absence of the jury, prosecuting counsel told the trial Judge that he proposed to lead "certain background evidence" from the complainant and that he had the agreement of defence counsel to that course. Defence counsel did not make any objection at that time. The applicant seeks to tender an affidavit of counsel, together with one of his own, relative to the complaint that inadmissible evidence was led. In the particular circumstances of this case we would admit these affidavits, not because they provide any significant material or new evidence in relation to this ground of appeal, but because they confirm the history and the view taken by the parties.
The applicant says he knew nothing of any agreement between defence counsel and prosecuting counsel before the trial, or when prosecuting counsel made the statement to which we have referred at the commencement of the trial. That is confirmed by counsel. He responded to the letter to which we have referred on the same day, advising prosecuting counsel that, "I have no objection to the background evidence proposed to be adduced. You will appreciate that much of it is factually disputed." In his affidavit, counsel confirms that that statement resulted from prior discussion of the evidence proposed to be led with the applicant. Counsel says, however, that he did not tell the applicant that he did not propose to object to the evidence on the basis that that was a decision for him. The decision he took was "based on my consideration of the law relating to relationship evidence", the discussion he had with the applicant and the instructions he was given.
It is not now asserted that none of this evidence was relevant, but the ground sets out particular pieces of evidence which it asserts were inadmissible as being irrelevant, or as having a hearsay content, or as being material which was expressed generally and imprecisely, or as being material which ought to have been excluded in the exercise of discretion as being unduly prejudicial. It is to be borne in mind that at the trial no objection was taken to any of this material.
The complainant's evidence commenced with the start of their relationship. It is clear that while giving her evidence she was very absorbed in recalling the events. She was not easy to keep to the point of the questions asked of her. Her answers were on occasions unresponsive to the questions and rambling. It must be said that neither counsel made any concerted effort to prevent the complainant answering questions in that way.
Without setting out all the matters with respect to which complaint is now made, the evidence which it is asserted should not have been admitted includes reference by the complainant to the applicant's "relentless phone calls". "He even had his mother from Victoria ringing me." The applicant would write letters and telephone constantly, not just her, but friends and family. There were a series of violent assaults by him. When giving evidence that she removed a violence restraining order she went on to explain that until she was in that situation she could never understand why women who were assaulted by their partners would take them back. The applicant harassed her day and night, threatening to seriously damage her and her home. Although she did not see him for some time, people in the area where she lived, shopkeepers and others told her they had seen him, that he was regularly in the area. She became so terrified and worried that she went down south to try to get away and she sent her children to their father in Tasmania. She was ashamed to say that she had obtained and removed two restraining orders. She said, "I believe this is typical in domestic violence cases. We have been told by professionals this is what does happen with women. Their self-esteem is brought down to the lowest level." She said that eventually she contacted and dealt with a Det Savage after a person she identified as Fr Murphy advised her to take out a restraining order. She said that Det Savage advised her to keep a diary "because things would probably get worse".
Clearly some of this material was inadmissible or might have been objected to on discretionary grounds, but in our opinion it was relevant to lead evidence of the history of the relationship so far as it bore upon the complainant's evidence about the behaviour of the applicant which was alleged to constitute the pursuit which was the actus reus of both offences. The jury might more readily accept her evidence about the applicant's conduct if they understood how he behaved towards her generally during the course of their relationship. Further, the way in which he was prepared to behave towards her and did behave towards her was clearly relevant to the proof of the intention to intimidate her. It had a relevance, in relation to the alternative offence, to the question whether the nature of the applicant's conduct by way of pursuit could reasonably be expected to intimidate her. Whether an ordinary person in her position could reasonably be expected to be intimidated would clearly depend upon the way in which the applicant behaved generally towards the complainant and what might reasonably be expected would be her reaction. Finally, it had relevance to whether her evidence that she was in fact intimidated was to be accepted.
We consider that defence counsel's judgment that this evidence should not be objected to was highly defensible from a forensic point of view. When the complainant proved to be difficult to control in the sense that it was not easy to prevent her from volunteering information, to which objection might have been taken, which went beyond that called for by the questions asked, defence counsel faced the difficult decision whether to object or whether it was a case of least said soonest mended. In the circumstances of the case it could well have been to the detriment of the applicant if the jury were given any impression that the complainant was being badgered by counsel. Further, it may reasonably have been thought to be advantageous from the applicant's point of view for the jury to see how overwrought the complainant was and to see the degree of her animosity towards the applicant. Finally, the more she was questioned about specifics the more likely it was that this evidence would be given greater emphasis in the minds of the jury.
The question which now arises in relation to the leading of inadmissible evidence mixed in with much that was admissible about the history of the relationship is whether it can be seen that the trial has so far miscarried as to require the conclusion that there has been a miscarriage of justice: Wilde v The Queen (1988) 164 CLR 365. We do not think that can be said. The matters of which complaint is made, so far as the evidence was inadmissible or might have been excluded, are of insufficient gravity to be characterised in that way. Nor it seems was that the way it was seen at trial by experienced defence counsel. In that event it is even more difficult now to raise these matters as constituting a ground for the conclusion that there has been a miscarriage of justice. We do not uphold this ground.
The last ground in this appeal is a complaint that the trial Judge erred by failing to give adequate directions to the jury as to the relevance of the "context" or "relationship" evidence and to what extent they could use it in their deliberations. As the ground was developed in argument this is not a complaint about what the trial Judge said, but that he did not tell the jury that if they accepted the complainant's evidence about the relationship and the events which occurred outside the period of the complaint, they could not use that material, effectively as propensity evidence, to reason directly from it that the applicant must have so conducted himself as to constitute the pursuit of the complainant in the period of the indictment.
In fact, all his Honour said to the jury was that such evidence was relevant to the intention to intimidate by making telephone calls and sending material to the complainant. As we have said, it had a relevance to other elements of the alternative offence, but his Honour does not appear to have discussed the evidence in that context. He effectively left it at the proposition that, against the background of the history of the relationship over some years, a relationship which his Honour said to the jury had "had its ups and downs leading to two restraining orders which had been applied for and withdrawn" before the final order was put in place, the applicant's conduct during the period of the indictment might be seen as being accompanied by the intent to intimidate.
In the circumstances of this case we do not think that a direction of the kind envisaged by the applicant was required. Such a direction will be very necessary in cases where there is a danger that the jury might reason that because an accused person has conducted himself in a particular way in the past towards his victim he might be found to have done so again at the time alleged by the indictment: see, for example, Gipp v The Queen (1998) 194 CLR 106, but this was not such a case. As we have mentioned, in respect of neither the stalking offence charged nor the alternative simple offence was there any real question that what was done by the applicant (who did not give evidence at the trial) would constitute not only a breach of the violence restraining order, but also pursuit within the meaning of the Code, s 338D. The relevance of the background evidence was in respect of the mental element of the offence charged, or, in respect of the alternative offence, the impact of the applicant's conduct upon the complainant and whether that was reasonably to be expected in the circumstances confronting her. A direction of the kind now sought would in our opinion have been inappropriate having regard to the way in which the case was fought.
Again, we note that no direction such as that now sought was sought by counsel at trial. This was a matter which was raised in Gipp, where the point upon which the appeal to the High Court ultimately turned had not been raised at the trial or before the Court of Appeal of Queensland. Speaking of the reaction of the High Court to such a case, but in terms which, in our respectful opinion, are equally apposite to express the reaction of this Court, Kirby J said, at 155 [138]:
"From the earliest days, in the determination of appeals, this Court has asserted a jurisdiction, held in reserve, to avoid an injustice brought to its notice, although not raised at the trial or in the Court of Appeal. In truly exceptional cases, to avoid the risk of a serious miscarriage of justice, to vindicate the law or to prevent the repetition of similar mistakes of law, the Court has upheld a prisoner's appeal although the point ultimately successful was never taken below, whether at trial or in the Court of Criminal Appeal."
In our opinion, this is not such a case and we dismiss the appeal against the conviction of the stalking offence. We turn then to the appeal against conviction for the offence of making the threat with intent.
The threat conviction – was the verdict unsafe or unsatisfactory?
Where such a ground of appeal is relied upon, the question for the appellate court is whether it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty. The court is required to bear firmly in mind that the jury has the primary responsibility of determining guilt or innocence and it is not for the appellate court to take over that role. However, that court is required to undertake an independent review of the admissible evidence led at trial so as to answer the question posed. If upon making that review the appellate court has a doubt as to the guilt of the applicant, it ought generally to conclude that a reasonable jury properly instructed ought to have had such a doubt: M v The Queen (1994) 181 CLR 487, 493-494; Jones v The Queen (1997) 191 CLR 439, 450-452; MFA v The Queen (2002) 77 ALJR 139.
The point made in this ground is simply that there was insufficient evidence for the jury to conclude beyond reasonable doubt that the applicant was the author of the letter threatening the complainant. As that way of formulating the ground makes clear, this issue is to be considered against the background of the issues raised at trial and this was a one-issue case. We have quoted very briefly from the letter. Numerous other like passages appear in it. There could be no doubt, it seems to us, that the letter bore the character of a threat as defined in the Code, s 338. It threatened the complainant with injury, danger or harm and generally with detriment if the complainant went to court to give evidence, and at the time the only matter about which the complainant might have given evidence was what we have referred to as the first stalking charge. The intent with which the threat was made, to prevent the complainant from going to court to give evidence, was again, without doubt, manifest from the very terms of the letter itself. The live question at the trial was therefore whether it was the applicant who made the threat. As to that the evidence was circumstantial. It is true that, as the applicant puts it in argument, there was no direct evidence that the applicant had either written the letter or directed another to do so.
It will be recalled that when this letter was received by the complainant the applicant was in Casuarina Prison on remand awaiting trial for the stalking offence and again there was no direct evidence that he had arranged for the letter to be taken out of Casuarina Prison and posted to the complainant.
The complainant gave evidence that she recognised the letter to be the applicant's handwriting, but when cross-examined she said she had given that evidence having regard to "the style of writing and the content". She could think of no other person who might have sent the letter.
As to the content, both the complainant and the applicant gave evidence at the trial. It was established that there was material in the document which was of a private nature which only the applicant and the complainant might know. On occasions, the letter contained references to matters which the applicant had put to the complainant in oral discussion and these were now repeated in the letter. There was a reference to an excursion to the Treetop Walk in the South‑West, to a fishing trip in the south, and the letter continually referred to a person named "Savage". This was undoubtedly the Det Savage to whom the complaint of stalking had originally been made. The complainant's evidence was that the applicant hated Savage and believed that he was harassing him, pursuing a vendetta against him, and that was confirmed by the applicant's evidence.
Enclosed with the letter were various newspaper clippings, one of which had, in handwriting, the letter "d" added to the word "use" so that what was "use to the max" became "used to the max".
When the applicant's house was searched by the police they seized a calligraphy set (and the evidence was that the applicant was interested in calligraphy) and various other newspaper cuttings, on one of which the applicant made a notation. He said that he had made the newspaper cuttings for the purpose of sending them so as to convey a message at a time when he was angry, but the applicant said that he had not done so. When he was asked to identify the note that he had made on one of the cuttings he did so, adding, "the person who has sent [the complainant] these other articles has done the same thing to make it look like me and implicate me." One of the newspaper cuttings was the word "savage". Another was an advertisement for the Emu Point Beach Chalets in Albany, where the complainant, the applicant and her two sons had stayed at one time for a holiday. The complainant's evidence was that the only other person who knew that was her father.
We have mentioned that the complainant was unable to identify the handwriting of the letter as that of the applicant. A handwriting expert was called, a Sgt Nicholson, a forensic document examiner with the Police Service. His expertise was undoubted. He had analysed the letter by a process of comparison with handwriting of the applicant. He was unable to identify the letter as having been written by the applicant, but his evidence was, in effect, that the letter was likely to have been written by someone attempting to disguise their writing because there were a great number of irregularities and variations in the way particular letters of the alphabet were written at different times. Sgt Nicholson said he had never encountered anything like this number of irregularities in the handwriting of a person using their normal style. The applicant testified that as a result of his interest in calligraphy he was adept in a number of cursive styles.
A Mr Clegg, the Superintendent of Security at Casuarina Prison, gave evidence. He said that such a letter would never be allowed to be transmitted from the prison and there was evidence, in the form of the stamp affixed to the envelope, that it had been posted from outside the prison. Mr Clegg's evidence was that although there were procedures in place which were designed to prevent items such as this being smuggled out of the prison, there were a number of ways, which he discussed in evidence, by which such an item as this letter and the cuttings could be taken out of the prison undetected.
In our opinion there was a strong circumstantial case which made it very fairly open to the jury to conclude beyond reasonable doubt that the applicant was the author of the letter who had, despite the fact that he was in prison at the time, made arrangements for an accomplice, or innocent agent, to send the letter to the complainant. Of particular force as evidence of his authorship was the style of writing of which the complainant spoke in evidence, the reference to matters which were known only to the two of them or close family members, the motive in the timing of the letter shortly before the complainant was to give evidence against the applicant at a trial, the apparent attempt to disguise the handwriting and the use of newspaper clippings similar to those found at the applicant's home. In our opinion, the conviction is not unsafe or unsatisfactory.
A related ground complains that the trial Judge erred by directing the jury that the Crown had to prove that the person who stood to benefit from the letter was the applicant. In directing the jury his Honour said that:
" … a question which you might ask yourselves in the jury room is, 'Who was to benefit from the writing of this letter?' The Crown has to prove that the person who was to benefit from the letter was Mr Hellings. He wrote the letter and he had the opportunity and the skills and the time and the patience to do it, but if it was for his benefit and the other people who are mentioned, what benefit would they have from the letter being written? That does not answer the whole question because you still have to be satisfied beyond reasonable doubt that he was the writer of the letter and I am only putting that example to you as a means of assessing the evidence put before you and asking whether that evidence is proof beyond reasonable doubt."
This ground is without merit. His Honour was clearly talking about the fact that the applicant was the one person who appeared to have a motive to make the threat in view of the impending trial at which, without the complainant's evidence, the Crown would have no case. The proof of motive was of itself powerful circumstantial evidence pointing to the fact that the applicant was the author of the letter, put together the other contents of the envelope and arranged to have it sent to the complainant, the crucial facts upon which his guilt depended: De Gruchy v The Queen (2002) 76 ALJR 1078.
Of course, the Criminal Code, s 23, provides that the Crown did not have to prove that the applicant had a motive to commit the crime. It was not an element of the offence nor, we think, properly understood, did the trial Judge say so. In practical terms, however, the proof of motive was a necessary part of the Crown's case and that is all that the trial Judge was saying. Certainly, there is nothing in his Honour's remarks capable of constituting the danger to which counsel adverted in argument that the jury may have considered that proof that the applicant was the person who would have benefited if the complainant took the threat seriously and was frightened into refusing to give evidence, would make him guilty of the offence.
Evidence of relationship
The remaining ground of appeal against conviction is couched in similar terms to that advanced in respect of the stalking trial, that the trial miscarried by the admission of evidence of the complainant that was inadmissible, imprecisely defined or subject to exclusion in the exercise of discretion on the ground that its probative force was greatly outweighed by its prejudicial effect. Again, the contention is not that evidence of the relationship between the complainant and the applicant was not admissible, as it clearly was. It was appropriate that the jury have the opportunity to understand the relationship between these two people as evidence tending to prove that the applicant was a person who might frame and send such a document as the letter and the other enclosures, so as to make the threat of detriment which the letter contained, for the purpose and with the intent to frighten the complainant sufficiently to prevent her from giving evidence against him at the forthcoming stalking trial.
It will be recalled that the trial for the offence of making the threat was the third in the series involving the applicant and the complainant and that this trial and the preceding stalking trial were effectively a group of two trials, one after the other before different juries drawn from different panels. The process of agreement between counsel upon the evidence to be led was the same and for the purpose of discussing this ground we do not need to add to what we have already written on that topic. The ground relies upon the same points of objection to evidence, which is essentially of the same character as that criticised in relation to the stalking trial. In other words, some of the material is said to have been simply irrelevant, some of it is said to be hearsay, to be material given in general and imprecise terms and some is said to be highly prejudicial. Again, no objection was taken by counsel to the evidence as it was led at the trial and, as on the previous occasion, the complainant appears to have been a difficult witness to control, emotional, wanting to tell her story and inclined to give rambling, non‑responsive answers.
Again, we do not propose to set out all the material about which complaint is now made, but we would make the general observation that, in our opinion, evidence about the applicant's tendency to give way to outbursts of anger was admissible, as was the complainant's evidence of his violence towards her, his threats to harm or kill her if she went to the police, his breaches of violence restraining orders, his stalking behaviour of persistent telephone calls and approaches to her, and generally of the course of the relationship in relation to features of it which were of that kind.
It is important to understand that the relationship evidence was admissible, not for the purpose of showing propensity, nor – as his Honour indicated to the jury – simply by way of "background". Rather, it was relevant to the authorship of the letter.
The letter was an extraordinary document. Whoever wrote it had taken a great deal of time and trouble to set out over many closely written pages serious threats against the complainant, and revolting allegations concerning her personal life and behaviour. The obvious conclusion was that the letter can only have been written by a person with an extreme and irrational hatred for the complainant. The evidence of the applicant's behaviour during the course of the relationship could be used by the jury to infer such an extreme and irrational hatred, although words and behaviour demonstrating such an attitude apparently alternated from time to time with professions of love and sympathy. The relationship evidence was in our view strongly probative of authorship. To the extent that his Honour did not direct the jury that they could reason in that way, his Honour's direction was to the advantage of the applicant.
As in the previous trial, in the course of giving this evidence the complainant said some things which were not responsive to questions that she was asked and she gave some evidence which was either inadmissible or objectionable on discretionary grounds. For example, she said other people at a counselling weekend were concerned for her, that the applicant got other people to telephone her, that she was ashamed of herself for having revoked restraining orders, that she recommenced the relationship from time to time because she did not know how to deal with him and she thought she could reason with him. Again, she spoke of her behaviour as being typical of persons subjected to domestic violence whose self-esteem was being progressively reduced and she referred to having taken professional advice, but in our opinion material of this kind was relatively insignificant having regard to the nature of the evidence which was admissible in relation to relevant aspects of violence and harassment in the relationship between the complainant and the applicant.
There is an objection to her evidence about Det Sgt Savage and that the complainant said the applicant was obsessed with him and thought that Savage was harassing him, but in our opinion this material was admissible because of the reference to Savage in the threatening material which was sent to the complainant. It does not have the hearsay character attributed to some of the evidence.
In relation to allegedly prejudicial material, forming part of the relationship evidence, there was one matter in particular which counsel for the applicant stressed during the course of the appeal. That was the complainant's evidence that she became pregnant as a result of violent sexual activity initiated by the applicant, during the course of which he destroyed the contraceptive which she was using. It should be noted that this answer was given during the course of cross‑examination in answer to a question in which the complainant was asked whether, after a resumption of the relationship at one stage, she became pregnant. The only conceivable reason for asking such a question would be an attempt to demonstrate that the relationship between the complainant and the applicant was a more normal one than the complainant had made it appear. The obvious assumption underlying the question was that sexual activity would only take place if the relationship had been, at that time at least, a reasonably normal and affectionate one. The complainant's answer was directed not only to the literal meaning of the question, but to its obvious underlying assumption. A simple affirmative, in answer to that question, could potentially have produced a misleading impression, and the complainant obviously appreciated that fact. The complainant's response to the question was an appropriate one in the context of the cross‑examination. Having caused his counsel to ask the question the applicant cannot, in our view, complain of the answer.
We do not consider that this ground should be upheld. To the extent that inadmissible evidence was led it does not have the destructive effect upon the fairness of the trial process sufficient to require this Court to conclude that there has been a miscarriage of justice.
We do not allow either appeal against conviction upon the grounds advanced, but we should say that in relation to the last-mentioned ground, had we been of the view that significant evidence had been wrongfully admitted at this or the previous trial we would nonetheless have concluded that the proviso should be applied and the convictions sustained. It is accepted that in such a case a new trial will not be ordered if the error or errors made in the conduct of the trial are not such as may reasonably be supposed to have affected the result of the trial. On the admissible evidence in each case, in our opinion the applicant's conviction was inevitable: see De Gruchy and Conway v The Queen (2002) 209 CLR 203.
The sentences imposed
We have mentioned that the sentences imposed for the two offences under consideration were to date from 14 October 2001, the date upon which the applicant concluded his service of the 7 month term imposed for the simple offence of stalking. The sentences were backdated to that extent as, since that date, the applicant had remained in custody on remand in relation to these matters. We have mentioned that for the offence of aggravated stalking, the applicant was sentenced to a term of 6½ years imprisonment, the maximum punishment available being a term of 8 years imprisonment. For the offence of threats of detriment, the applicant was sentenced to 5 years imprisonment cumulative, when the maximum punishment available was a term of 7 years imprisonment. In relation to the aggregate term of 11½ years imprisonment, a parole eligibility order was not made.
We need not repeat the facts in relation to these offences as they were found by the sentencing Judge. They are as we have generally set them out. In relation to the stalking offence, the Judge referred to the complainant being bombarded with telephone calls to her home and mobile telephones at all hours of the day and night, after, by subterfuge, the applicant obtained the complainant's silent number. There were some 160 such telephone calls between 13 December 2000 and 4 January 2001, a 22-day period – an average of over seven calls per day. His Honour found that the complainant was terrified. She removed her children to Tasmania, to their father, because of her fear. There were other forms of harassment.
The trial Judge referred to the applicant's disruptive tactics at the trial, including calling out to the applicant and interrupting her as she gave her evidence by closed-circuit television, causing her, on one occasion, to break down. Ultimately, as his Honour remarked, he had to remove the applicant from the courtroom, the first occasion on which his Honour had been required to take that course in 17 years as a Judge.
As to the offence of threats with intent to influence, his Honour described the letter as containing material of the "vilest kind" designed to humiliate and embarrass the complainant should it come to the attention of the authorities. The letter contained horrifying, terrifying threats against her if she should give evidence. His Honour found that the letter had been written by the applicant and smuggled out of prison before it was posted. As we have said, the evidence supported that conclusion.
His Honour spoke of the victim impact statement received from the complainant which, he said, reinforced the impression gained during the trials of "the devastating effect your conduct has had on the complainant, her children, family and friends." The business she ran from her home had been disrupted. She had had to relocate and her sense of security and her children's sense of security had, his Honour found, been irretrievably damaged.
As to the applicant's personal circumstances, the sentencing Judge noted that he was then aged 41. His Honour referred to a psychiatric report dated 16 January 2001 and further reports ordered by his Honour. They were a further psychiatric report, a psychological report and a pre‑sentence report. No formal psychiatric disorder was established, but as the judge found, he exhibited "impulsive antisocial personality features."
The psychological report is particularly relevant to the sentencing process. It concludes by describing the applicant as an:
"… articulate, but severely psychologically troubled man who currently presents a risk of reoffending. His psychological treatment needs are considerable, and intensive long-term psychotherapy is warranted. Whether Mr Hellings will be able to benefit from therapy remains unclear. If Mr Hellings continues to focus and place energy into blaming external factors for his current situation his ability to focus on relevant issues for resolution will remain compromised."
The psychologist reported that unless successful psychotherapy could be undertaken it was highly probable that the applicant would reoffend in the future. The reports refer to what appears to be an obsessive belief, when charged, that he was being persecuted by a particular policeman.
The pre‑sentence report noted that he appears to have little genuine empathy for the victim, or insight into his offending behaviour. That report particularly addresses the question of parole eligibility and makes the point that while the applicant maintains a stance of denial he does not consider that programs or treatment options that might be available apply to him. The report concludes that:
"… it is possible that a sustained period of psychological counselling, while incarcerated could assist Mr Hellings in accepting culpability for his offending. It seems likely that a sentence without the opportunity of Parole could be the catalyst for a further deterioration in Mr Hellings' mental health. The Court could consider leaving the decision to the Parole Board who would carefully review his circumstances and any progress he may make whilst undertaking psychological counselling. It must be acknowledged that at this juncture, in the writer's opinion, the prognosis for change is bleak. The justification for this stance is Mr Hellings' repeat offending of a similar nature, his lack of empathy for the victims of his offending and his belief that he is the victim. Previous treatment has not been effective in addressing his offending behaviour."
His Honour referred to a seven-page letter addressed to the trial Judge by the applicant following his convictions. His Honour noted that the letter expressed the applicant's apologies for his behaviour, to the Judge, the Crown prosecutor, the jury, the complainant and her family. In relation to the complainant and her family, the applicant explained that his behaviour occurred when he was "in a very unbalanced state of mind." He referred to his undoubted skills and good record in employment in the building industry. The letter professed good insight into his personality difficulties and the reasons for his behaviour, but the Judge doubted the genuineness of the sentiments expressed and said that the applicant seemed to his Honour to be "a very manipulative person who will take every opportunity to try to turn events to [his] favour."
The sentencing Judge referred in detail to the applicant's criminal history. It commenced in the Children's Court in Victoria in 1974 when the applicant was a few days short of his fourteenth birthday. There follow a series of offences which brought the applicant before the Children's Court in Victoria and then, upon his attaining the age of 18 years, before the Magistrates Court. The offences were predominantly offences of dishonesty, property offences, but they included offences of violence. After non-custodial dispositions were tried, the applicant commenced to be imprisoned, first in 1981, following which he came to WA in 1982. The offences continued. They included drug offences, offences of dishonesty and motor vehicle offences.
In 1992 there commenced the first of a series of offences of breaching restraining orders and, in December 1993, the applicant pleaded guilty to an assault occasioning bodily harm and five counts of threats with intent to influence for which sentences of imprisonment were imposed. The effective aggregate was a little short of 5 years imprisonment and there was no parole eligibility order. Those were offences committed upon the applicant's former de facto wife, with whom he had had a child. The sentencing Judge described them in some detail.
Thereafter, in 2000 and 2001, there were a series of traffic offences until the conviction in the District Court of simple stalking in respect of which the sentence of 7 months imprisonment was imposed. There was a related series of 20 offences of breach of a violence restraining order which resulted in no further penalty being imposed. The sentencing Judge accurately summarised the record by saying that it disclosed that the applicant had:
"… a history of continuous offending over a range of offending behaviour since 1974. You have a history of similar offending and a propensity for violent offences. You have committed offences following the breakdown of a relationship on at least three separate occasions and unlawful wounding in 1997, assault occasioning bodily harm and a threat with intent to influence in 1993 and the current offences."
A little later his Honour made some observations about the relevance for sentencing purposes of his conclusion that the present offences were part of a pattern of recidivism demonstrating a continuing attitude of disobedience to the law and warranting a more punitive disposition for reasons of retribution and deterrence and particularly to attempt to achieve a measure of protection for the community. Such remarks are clearly a reference to the judgment of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477. His Honour remarked, in addition, upon the very clear indicators of the seriousness of both offences.
The question of eligibility for parole
The sentencing Judge considered the question of eligibility for parole carefully. His Honour again referred to the current offences as being of a kind similar to those committed on a number of occasions in the past. His Honour added that during service of the sentences imposed upon the applicant in December 1993 for offences against his former de facto wife the applicant had undertaken psychological counselling. A report submitted to the Parole Board to support the making of a work release order had said that the applicant had made significant positive shifts in his attitude and had shown himself to be highly committed to achieving positive changes in his behaviour, taking responsibility for his behaviour and understanding his anger towards his ex‑de facto wife. And yet, as the sentencing Judge observed, the applicant's later actions indicated that he had learned nothing.
His Honour declined to make a parole eligibility order at the end of his sentencing remarks. Before the Court adjourned, the applicant told the Judge that he was making a big mistake if he thought that the sentence would worry the applicant. He then spoke to the complainant, who was apparently present in court, telling her to say hello to the police officer, Det Savage, and to tell that officer that the applicant would "be seeing him."
The applicant argues that the exercise of the discretion not to make a parole eligibility order has miscarried in this case. In view of the nature of the argument it is desirable to set out the terms of the Sentencing Act1995 (WA) s 89, so far as it is material:
"(1)A court sentencing an offender to one or more fixed terms may, if it considers that it is appropriate to do so, order that the offender be eligible for parole by making a parole eligibility order.
(2)In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:
(a)the seriousness and nature of the offence;
(b)the circumstances of the commission of the offence;
(c)the offender's antecedents;
(d)circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;
(e)any other reason the court decides is relevant."
This provision mirrors the terms of the earlier provision, formerly in the Offenders (Community Corrections) Act 1963 (WA), s 37A. In relation to that section, the relevant principles were discussed by this Court in Thompson v The Queen (1992) 8 WAR 387. They are summarised at 395-396. Those observations have been applied often since in respect of the provisions of s 89(1) and (2) of the Sentencing Act: eg, King v The Queen [2001] WASCA 198.
For present purposes it is sufficient to be reminded that parole remains, as it has long been held to be, a mechanism for the mitigation of punishment and that it is concerned to provide the opportunity for the rehabilitation of the offender during a period of conditional freedom. It is an important mechanism, but the courts have noted, as the structure of s 89(1) clearly suggests, that the discretion to grant eligibility for parole is only to be exercised if the court considers that it is appropriate to make the order. There must be something positively to indicate that the order should be made. However, the philosophy of the Act suggests a bias towards eligibility.
In relation to this case, as we understood the argument, it is really conceded that nothing positive emerges out of a consideration of s 89(2)(a)-(d), but it is pointed out that, under s 89(2)(e), the Court may have regard to any other reason which it decides is relevant. It is submitted that the aggregate sentence is a long one. Indeed, in other grounds it is argued that each sentence is manifestly excessive and, in their totality, the two sentences combined are disproportionately long. We shall return to those grounds.
In relation to the matter of parole eligibility, however, it is submitted that unless the applicant is given some hope of a reduction in the term to be served by being able to demonstrate that he was fit to be released into the community when he would become eligible for parole he will have no incentive to address the issues of a personal nature to which we have referred, which now are so evidently causing his offending behaviour. It is argued that parole eligibility would give him that incentive. If he did not take it up then he would simply be unable to demonstrate his fitness to be released on parole and he would be detained in custody. If he is simply to serve his time and be released into the community without supervision and with his psychological disorder untreated, it is suggested that the prospect of his reoffending will be as strong at that time as it is thought to be now. And so it is argued that there is everything to be gained from a parole eligibility order and the making of such an order will occasion no danger for the community.
In our opinion, the argument is an attractive one, but on a final analysis of the way in which it is mounted we are unable to accept that the discretion not to order parole eligibility miscarried in this case. It is true that in relation to the sentences previously imposed on the applicant no parole eligibility orders were made, but we cannot escape the consideration which evidently impressed itself upon the sentencing Judge that the seriousness and nature of these offences in the circumstances of their commission demonstrated a recidivism which amply justified the comment of his Honour that the applicant had apparently learned nothing from his previous appearances before the courts and his previous sentences. He had not been moved to recognise that the problem which produced his offending lay in his psychological makeup. He had not been moved to recognise that he could do something about it and he had not been moved to make any attempt to understand his situation and to learn how to control the impulses which cause him to offend in the way that he does.
He showed the sentencing Judge by his behaviour before the Court, as he showed by his behaviour before this Court, that he remains beset by some deep-seated psychological disorder. His aggression is unchecked and, in our view, all the indicators of the past suggest that if parole eligibility had been ordered, when he became eligible for release he would be as likely to reoffend as he was when before the District Court. Overwhelmingly, it seems to us, the circumstances of this case pointed towards the exercise of discretion by the refusal of parole eligibility. In our view, it cannot be said that the considerations for which the applicant argues were of such power as to demonstrate that the exercise of discretion in this regard has miscarried.
Were the sentences manifestly excessive?
We propose to examine together the questions raised by the other two grounds of appeal. They respectively raise the argument that the sentences imposed were individually manifestly excessive in all the circumstances concerning their commission and that, when they are accumulated, the total term of 11½ years imprisonment is disproportionate to the total offending behaviour. It should be observed immediately that the sentencing Judge gave consideration to the question of totality. His Honour said that for the threat with intent to influence, he would have imposed a cumulative term of 5½ years imprisonment, but on totality grounds he reduced that to 5 years imprisonment. In other words, the aggregate term was reduced on that ground from 12 years to 11½ years.
The proper approach to the totality principle may be found in the judgments of this court in Jarvis v The Queen (1993) 20 WAR 201, and in the as yet unreported decision of Herbert v The Queen [2003] WASCA 61; 26 March 2003. For present purposes it is sufficient to note that the principle requires the sentencing court to take a final look at the total effect of what has been done by way of sentence to ensure that, in its total effect, it is not disproportionate to the criminality involved in the offences committed. Whilst in some cases it may be appropriate to consider whether the total term is "crushing" in its effect, in the sense that it appears to deprive the offender substantially of the prospect of a useful life after the term is served, it will generally be appropriate to consider totality as a question of proportionality against the background of the fact that the longer the term of imprisonment which is imposed, the more its severity increases exponentially.
In this case it is not argued that the two sentences should have been imposed concurrently. While they are related offences, they are clearly quite separate and distinct episodes of criminality.
In considering the seriousness of the stalking offence, care needs to be taken to ensure that the relevance of the previous criminal history does not spill over from being a factor which denies mitigation to become, effectively, a circumstance of aggravation, the error which the High Court discussed in Veen. More importantly, in this case, care had to be taken to make an evaluation of the offence of stalking. Whilst the circumstance of aggravation of breach of the violence restraining order was never in doubt and while there is no doubt that during this period the complainant was terrified by the applicant's behaviour, there was a need to take care not to regard the otherwise appallingly violent and dreadful aspects of their relationship as being circumstances demonstrating the seriousness of the offence of stalking.
So far as the stalking was concerned, there were a number of features which made it a very serious offence of its kind. First, it should be noted that the offending occurred during the period when the applicant was charged with offences of aggravated stalking (in respect of which he was later convicted of simple stalking), had failed to appear on the date set for his trial, and was eluding the authorities. The aggravated stalking commenced with a telephone call to the complainant on the very day on which the applicant was to be tried for an earlier offence against her. The applicant's flagrant disregard for the law was such that he was prepared to behave towards the complainant in a similar manner to that which had caused him to be charged with the earlier offence, and at a time when he was avoiding trial in relation to that earlier charge. The clear message which the applicant was seeking to send to the complainant was that no legal process could offer her any protection from him.
Further, the nature of the stalking conduct was itself serious. The applicant made 160 telephone calls to the complainant over the 22‑day period. Those calls were made at all hours, some being as late as between 1.00 and 2.00am. The calls were sometimes as frequent as eight in two hours; indeed, on occasions he would telephone and say he did not wish to see her in future and then telephone her again immediately following the termination of that call. The telephone calls were made to her silent number, which the applicant had gone to the trouble of obtaining. They were made from a variety of telephone booths around the metropolitan area, in order to make it more difficult to establish that the calls were from him. Significantly, on occasion they conveyed to the complainant information which he could only have obtained by coming close to her home; such information included a description of vehicles parked in her driveway at the relevant time, or an indication that he knew whether or not she was at home on a particular occasion. There was then an element of premeditation in obtaining the number, there was a determined attempt to elude detection, and there was taunting of the complainant and an implicit threat in his conveying to her that he had been to or near her home.
On occasion, the content of the telephone calls was overtly threatening. While the history of the relationship between the complainant and the applicant, and the violence which he perpetrated on her during the course of that relationship, does not aggravate the offence, it is relevant. That background gave to the applicant's constant telephoning of the complainant, a more threatening complexion than would otherwise be the case, and lent credibility to the threats which he made during the course of those telephone calls.
In addition to the telephone calls, he sent her on one occasion an odd combination of flowers, a card, and a black hat, which she said caused her to have the impression that they were for a funeral – her funeral.
The victim impact statement reveals that, as would be expected from such harassment, the complainant's family life was completely destroyed. Her children were made fearful, and she had to live apart from them on occasion. Her constant fear interfered with every aspect of her life, and the effects continue to this day.
It is of course the case that one can imagine more serious examples of stalking behaviour. For example, one can imagine telephoning which is even more persistent than the seven or eight calls a day made by the applicant. One can imagine a more direct and obvious approach to the complainant's house or to other places where the complainant was located, rather than the indirect approach taken by the applicant. However, the fact that it is possible to conceive of a worse case does not in our view detract from the conclusion that this was a very serious type of aggravated stalking, and that the persistence of the harassment and the other factors to which we have referred place it in the upper range of cases of the kind. Given a maximum penalty of 8 years imprisonment, a sentence of 6½ years, although severe, was significantly below that maximum and not disproportionate to the seriousness of the offence.
So far as the threatening letter is concerned, again it must be seen against the background of the history of the relationship between the complainant and the applicant. That is, it was a threat made by one who had already demonstrated a capacity to behave violently towards the complainant, and who had demonstrated some ingenuity and persistence in locating her and making himself familiar with her movements. That gives the threat a credibility which one would not always expect a written threat to carry. So far as the content is concerned, we are unable to imagine more serious and graphic threats. It is sufficient in order to demonstrate that proposition, to refer to two passages. On the eighth page there appears:
"If you appear at court it is evident that you think I'm bluffing. If you appear you will not see me or hear from me until the day arises when I am there in front of you. You will plead, you will beg, you will cry, you will scream."
On the ninth page there is probably the most specific of the threats, which reads:
"You will never have your sight back once I square up with you. I will not kill you – I am not a killer – but I will ruin your life for ruining mine."
In addition to the content of the threat, there should be considered the purpose for which it was made. It was designed to ensure that the complainant would not give evidence against the applicant in relation to offences with which he was charged, which had been committed against her. That is, it was designed to ensure that so far as the complainant was concerned the legal system would be powerless to protect her. While, no doubt, any threat in order to prevent a person from engaging in their lawful activities is a serious one, in our view the purpose of the threat is a matter which significantly aggravates it. It is important that it be made perfectly clear that offenders cannot, by taking advantage of their own known propensity towards violence, intimidate others so as to ensure that they escape punishment. Any action directed towards that end should in our view meet severe punishment, as in this case it did.
In our view, therefore, each of the sentences individually is appropriate to the offence in question. There was really nothing to be said in mitigation so far as the applicant was concerned. It may be accepted that he is severely psychologically troubled, and that that psychological condition contributed towards his offending. However, this is one of those cases in which, while the psychological condition may go some way towards explaining the offending, it also carries with it the conclusion that the offender is a person from whom the community requires protection. Further, whatever the applicant's underlying psychological disorder, there can be no question that he understood clearly that what he was doing persistently, over a period of time, was unlawful. His use of different telephone booths in relation to the aggravated stalking, and his disguised handwriting in relation to the letter, amply demonstrate that fact.
So far as totality is concerned, while the total sentence imposed is one of significant length, it is not in our view disproportionate to the totality of the offending in this case. The persistent nature of the applicant's conduct, the period of time over which it took place, and the serious nature of the offending in each case lead us to the conclusion that it is not open to us to hold the exercise of sentencing discretion has miscarried on totality grounds. We refuse the application for leave to appeal against the sentences imposed.
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