James (a pseudonym) v The Queen - [2022] SASCA 82

Supreme Court of South Australia
(Court of Appeal: Criminal)
JAMES (A PSEUDONYM) v THE QUEEN
[2022] SASCA 82
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Livesey and the Honourable Justice David)
16 August 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
The applicant was convicted of four counts of using a carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) after being found guilty by a jury. On 4 March 2022, the applicant was sentenced to 18 months’ imprisonment, but an order was made for immediate release pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) and the applicant was ordered to enter into a recognizance in the sum of $1,000 to be of good behaviour for five years, with two of those years to be under the supervision of a probation officer.
The offending involved the applicant sending abusive messages to a man with whom she had previously had sexual intercourse with, as well as to his fiancé, and two members of his extended family.
By Notice of Appeal filed 24 March 2022, the applicant sought permission to appeal against her sentence on the grounds that the sentence was manifestly excessive, the sentencing judge sentenced on an inconsistent factual basis and the sentencing judge erred in failing to bring to the applicant’s attention his intention to sentence on an inconsistent factual basis.
Held (the Court) refusing permission to appeal:
1. The sentence was not manifestly excessive.
2. There was no error of fact made in the approach to sentence.
3. Even if the issue of consent was relevant and material to sentence and it were necessary to resentence, no lesser sentence would be imposed.

Crimes Act 1914 (Cth) pt IB ss 20, 85ZE; Criminal Code Act 1995 (Cth) s 474.17, referred to.
Agostino v Cleaves [2010] ACTSC 19; Hilli v The Queen (2010) 242 CLR 520; Kentwell v The Queen (2014) 252 CLR 601; Maier v Police [2004] SASC 367; Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; R v Jacques [2021] SASCA 94; R v Williams [2017] QCA 307; The Queen v Pham (2015) 256 CLR 550; Weinert v Commonwealth DPP [1999] SASC 34, considered.

JAMES (A PSEUDONYM) v THE QUEEN
[2022] SASCA 82
Court of Appeal – Criminal: Livesey P and David JA
THE COURT (ex tempore):
Introduction

This is an application for permission to appeal against sentence imposed following verdicts entered after a jury found the applicant guilty of four counts of using a carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth), for which the maximum penalties were each three years’ imprisonment.
As a federal offender, the applicant was sentenced pursuant to Part IB of the Crimes Act 1914 (Cth) (the Crimes Act).[1]
[1] See R v Jacques [2021] SASCA 94, [31] (Kourakis CJ, Lovell and Bleby JJA).
The applicant was sentenced to 18 months’ imprisonment, but an order was made for immediate release pursuant to s 20(1)(b) of the Crimes Act and the applicant was ordered to enter into a recognizance in the sum of $1,000 to be of good behaviour for five years, with two of those years to be under the supervision of a probation officer. Intervention orders were made with respect to the four victims of the offending.
The proposed grounds of appeal
The applicant’s three proposed grounds of appeal are:
1.The sentence is, in all the circumstances, manifestly excessive;
2.The sentencing judge erred in sentencing on a factual basis inconsistent with the evidence; and
3.The sentencing judge erred in failing to bring to the attention of the applicant his intention to sentence on a basis not consistent with the evidence.
The circumstances of the offending
The offences were committed between August and October 2017, arising out of the applicant’s fixation with a man with whom the applicant had sexual intercourse. That followed time spent by the applicant and the man in a mental health facility. After they were discharged, they met up in July 2017, drank to excess and had sexual intercourse at the man’s home.
The man gave evidence that they parted on good terms and had friendly interaction on social media for a short time afterward. Eventually, the man felt guilty about having had sexual relations with the applicant whilst engaged to another woman. He confessed his infidelity to his fiancé and decided to block the applicant’s messages. His fiancé sent the applicant a message which was critical of the applicant. There then followed a barrage of messages from the applicant which were sent to the man and to his fiancé and extended family. According to the sentencing judge:
The messages … became increasingly crude, vicious, personally abusive and racist. It is my firm view that jury acquitted you of the threat to cause serious harm and the threat to kill offences because they were not satisfied that you intended the recipients of your messages to take the threat seriously. Nevertheless, it is inevitable, in my view, that the jury accepted beyond reasonable doubt, as I do, that you sent all of the messages to all of the complainants. There were six of them.
After the victims went to the police, the police interviewed the applicant. Partial admissions were made which the applicant later claimed were the product of bullying. This allegation was rejected by the sentencing judge. The applicant maintained her innocence and, even following the jury’s verdicts, she denied the offending. There was a belated acceptance of the verdicts at today’s hearing.
The sentencing judge sentenced the applicant on the basis that she had no insight whatsoever into her behaviour and the effect of it on others. The sentencing judge repeatedly emphasised that he sentenced the applicant only for the four counts of using the carriage service to menace, harass or cause offence and not for the other messages which he was satisfied were sent.
The circumstances of the offender
The applicant was 23 at the time of the offending and 28 at the time of sentence. She had no antecedent criminal history.
Based on counsel’s submissions and reports from psychologists Dr Robyn Young and Mr Allen Fugler, the sentencing judge found that the applicant suffered from Autism Spectrum Disorder, which was described as a neuro-developmental condition characterised by persistent deficits in social interaction and communication and repetitive behaviour and restricted interests.
Until very recently, the applicant had not accepted that diagnosis. The applicant had difficulty forming relationships and found school extremely difficult. Alcohol consumption commenced at 15 years and cannabis was tried at 18 years. The applicant denied consuming alcohol or drugs since February 2021.
The applicant has never been able to obtain employment and was at the time of sentence in receipt of a disability support pension.
The applicant reported suicide attempts. She was found to have an IQ in the low average range of between 80 and 89. Concern was expressed that the applicant had not received any treatment which might assist her to learn adaptive skills.
Ground 1 – manifest excess
The applicant contends that the sentence is inconsistent with other sentences involving comparable offending.[2] The respondent counters that, of the decisions put forward by the applicant, both Maier v Police and Weinert v Commonwealth DPP were cases involving different offending, contrary to s 85ZE of the Crimes Act for which the maximum penalty was imprisonment for 12 months. In addition, the respondent submits that Agostino v Cleaves was a matter dealt with summarily by a magistrate who was limited to imposing a maximum penalty of 12 months.
[2] Weinert v Commonwealth DPP [1999] SASC 34; Maier v Police [2004] SASC 367; Agostino v Cleaves [2010] ACTSC 19.
The respondent points to intermediate appellate decisions in New South Wales and Queensland where offending in the mid-range of seriousness was addressed by immediate custodial terms.[3] As in this case, it is said that the offending was prolonged and involved numerous communications of a vile and abusive nature.
[3] Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; R v Williams [2017] QCA 307.
It is necessary to have regard to the decisions of other intermediate appellate courts when determining consistency in federal sentencing. Consistency is concerned with treating like cases alike and different cases differently, as well as in the application of the relevant legal principles. Consistency is not synonymous with numerical equivalence.[4]
[4] The Queen v Pham (2015) 256 CLR 550, [23]-[28] (French CJ, Keane and Nettle JJ). See also Hilli v The Queen (2010) 242 CLR 520, [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The sentencing judge found that the applicant’s offending was a serious example of this kind of offending. It involved a relatively high level of sophistication in the manipulation of social media platforms. Nonetheless, the sentencing judge explicitly paid careful regard to the applicant’s personal circumstances, accepting that there was a link between her disability and her offending.
As the applicant was “simply unable to appreciate the effect of [her] behaviour on other people” the sentencing judge found that general deterrence was of less importance in this case than it might otherwise be. The sentencing judge accepted that, because of the applicant’s social isolation, she had become unduly fixated on the brief sexual relationship with the man and the confusing consequences of it.
In circumstances where the maximum penalty for each of the four charges was three years’ imprisonment, it cannot be said that the prison sentence in this case of 18 months was manifestly excessive. That is particularly so when one has regard to the sentence as a whole and the concomitant decision to order immediate release, together with a lengthy recognizance with a close degree of supervision for two years.
Permission to appeal the sentence on the ground of manifest excess must be refused.
Appeal Grounds 2 and 3: factual basis inconsistent with the evidence
For the applicant, it is next contended that her evidence regarding the nature of the sexual encounter should have been accepted. She said that the sexual intercourse was not consensual and that she was raped. The applicant gave evidence that she reported the rape to police.
For the respondent, it is submitted that this view of the evidence was not made out. The man gave unchallenged evidence of a consensual sexual encounter, and it was never put to him that there was a lack of consent. Insofar as it was suggested that the applicant reported a rape in August 2017, the unchallenged evidence of a detective was that a search of SA Police systems found no record of any report of a sexual assault concerning the applicant and the man prior to November 2017. Whilst the respondent says that the first suggestion of a non-consensual encounter came during the record of interview in November 2017, we note that some of the messages accused the man of rape.
Both approaches must be rejected. The relevant question was probably whether the applicant believed that the sexual encounter was not consensual. That issue does not appear to have been squarely addressed in the sentencing process. Indeed, it is noteworthy that the sentencing judge was not asked to make any positive finding regarding the applicant’s belief on the point.
In circumstances where the applicant’s denials regarding her own offending were clearly rejected by the jury, and where the sentencing judge sentenced the applicant on the basis that she did not admit to any wrongdoing, it is unsurprising that the sentencing judge did not make any positive finding as to whether there was or was not a consensual sexual encounter or, indeed, as to the applicant’s belief on the topic. That approach is not undermined by the submission that the applicant now belatedly accepts the verdicts.
In the absence of considered submissions on the point before the sentencing judge, it is difficult to see how this issue became material to the question of sentence. However, let it be assumed that this issue was relevant and material to sentence, because a belief that the sexual encounter was not consensual may have somewhat mitigated the applicant’s offending by diminishing her moral culpability. Even assuming it were necessary to resentence, we would not be disposed to impose any lesser sentence than was in fact imposed by the sentencing judge.[5] Given the protracted nature of the offending, the content of the messages and the efforts made to send them, the applicant’s subjective belief did little to minimise the seriousness of her offending.
[5] Kentwell v The Queen (2014) 252 CLR 601.
In these circumstances, the application for permission to appeal on these grounds must be dismissed.
Conclusion
It is not reasonably arguable that the sentence which was imposed is manifestly excessive or that the sentencing judge made any error of fact in his approach to sentence.
Even if it could be said that there was an arguable error in failing to make a positive finding about the applicant’s state of mind concerning the nature of the sexual encounter which preceded the offending, we would not impose any different penalty on resentence.
The application for permission to appeal sentence must be dismissed.