Henderson v McKenzie

[2009] ACTSC 39

PAUL HENDERSON v ANDREW DAVID McKENZIE

[2009] ACTSC 39 (7 April 2009)

CRIMINAL LAW – stalking – breach of a protection order – breach of a good behaviour order – intent – stalk with intent to harass – harassment – definition of harassment – election of stalking charge or protection order required
MAGISTRATES – appeal conviction

Crimes Act 1900 (ACT), s 35, s 253
Criminal Code 2002 (ACT), s 13
Domestic Violence Act 1986

Firestone v ANU (2004) 184 FLR 53
Longfield v Glover (2005) 191 FLR 332

World Book Dictionary

Concise Oxford Dictionary

REASONS FOR DECISION

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 53 of 2008

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              7 April 2009

IN THE SUPREME COURT OF THE     )
  )          No. SCA 53 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:  PAUL HENDERSON

Appellant

AND:ANDREW DAVID McKENZIE

Respondent

ORDER

Judge:  Higgins CJ
Date:  7 April 2009
Place:  Canberra

THE COURT ORDERED THAT:

1. The appeals against convictions for breaches of a protection order be dismissed.

1. The convictions and sentences for those breaches be confirmed. 

1. The appeal against the finding of contravention and extension of the term of the good behaviour order be dismissed.

1. The appeal against conviction for stalking be upheld.

1. The conviction and sentence for the charge of stalking be set aside and the matter remitted to the Magistrates Court for rehearing, if the Director of Public Prosecutions deems that course appropriate.

1. On Friday, 28 November 2008, I dismissed appeals by the appellant which had sought to challenge his convictions for breaches of a protection order.  The appellant had withdrawn those appeals.  As a result, I confirmed the convictions and sentences.  Those offences constituted breaches of an existing good behaviour order.  I also dismissed the formal appeal against the finding that there had been such a contravention and in relation to extension of the term of the good behaviour order directed by the learned magistrate in response to that finding.

1. That left an appeal against a conviction for stalking which also, should it stand, breached the good behaviour order.  Whether that breach is made out depends on the fate of the stalking charge.

1. I indicated I would set aside the conviction and sentence for stalking and remit the matter to the Magistrates Court for rehearing if the Director of Public Prosecutions (DPP) deems that course appropriate.  I reserved my reasons.  I now publish my reasons for that decision.

1. The charge alleged a contravention of s 35(1)(c) Crimes Act 1900 (ACT) (Crimes Act), that is, that:

… he, in the Australian Capital Territory, between 02 May, 2005 and 18 February, 2008, did stalk Kim Herbert with intent to harass a person, namely Kim Herbert. 

1. Section 35 provides (relevantly):

35       Stalking

(1)A person must not stalk someone with intent—

…

(c)to harass the person stalked.

…

(2)For this section, a person stalks someone else (the stalked person) if, on at least 2…