Mark Sawyer v The Queen
[2021] VSCA 282
•15 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0177
| MARK SAWYER | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 October 2021 |
| DATE OF JUDGMENT: | 15 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 282 |
| JUDGMENT APPEALED FROM: | DPP v Sawyer (Unreported, County Court of Victoria, Judge Meredith, 4 March 2020) (Sentence) |
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CRIMINAL LAW — Appeal — Sentence — Stalking, damaging property and burglary — Intentionally causing injury — Recklessly causing injury — Multiple charges across four indictments — Convictions a mixture of jury verdicts and guilty pleas — Sentence of five years and 11 months’ imprisonment with four years non-parole — Whether appellant doubly punished — Whether sentence infringed the principle of totality — Whether sentence manifestly excessive — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T R Marsh | Michael J Gleeson & Associates |
| For the Respondent | Mr G M Hughan | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA:
Charges, sentences and grounds of appeal
Pursuant to leave granted by a judge of this Court, Mark Sawyer, now aged 50 years,[1] appeals against a total effective sentence of five years and 11 months’ imprisonment, with a non-parole period of four years, imposed by a judge of the County Court on 4 March 2020.
[1]His date of birth is 27 November 1970.
The impugned sentence involved 16 charges across four indictments, and a mixture of both guilty pleas and convictions returned at trial, as follows:
· first, on 27 February 2019 the appellant pleaded guilty to two charges of recklessly causing injury[2] contained in separate indictments, indictments H11432231B and H11432231D, (the victims respectively being Glen Dumergue and George Kyritsis);
· secondly, on 20 August 2019, following a trial on Indictment H11432231C.1, the appellant was found guilty by the jury of one charge of intentionally causing injury[3] (the victim being Lee Kenneth Lawrence); and
· thirdly, on 12 February 2020, following a trial on H11432231A.2, the appellant was found guilty by the jury of one charge of stalking,[4] ten charges of intentionally damaging property,[5] one charge of attempting to damage property,[6] and one charge of burglary[7] (the victims being Matthew Matotek and Daryl Matotek).
[2]Crimes Act 1958, s 18. The maximum penalty is five years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 21A. The maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
[6]Crimes Act 1958, ss 197(1) and 321M. The maximum penalty is five years’ imprisonment.
[7]Crimes Act 1958, s 76. The maximum penalty is 10 years’ imprisonment.
Following a plea hearing conducted on 3 March 2020, the next day the judge imposed sentence on the appellant in accordance with the table below:
Charge Offence Sentence Cumulation Indictment H11432231A.2 (Victims Matthew and Daryl Matotek) 1 Stalking 3 years 12 months 2 Damaging property 1 month Concurrent 3 Damaging property 3 months Concurrent 4 Damaging property 2 months Concurrent 5 Damaging property 1 month Concurrent 6 Damaging property 1 month Concurrent 7 Damaging property 1 month Concurrent 8 Damaging property 1 month Concurrent 9 Attempting to damage property 1 month Concurrent 10 Burglary 1 month Concurrent 11 Damaging property 1 month Concurrent 12 Damaging property 3 months Concurrent 13 Damaging property 1 month Concurrent Indictment H11432231B (Victim Glen Dumergue) 2 Recklessly causing injury 6 months 2 months Indictment H11432231C.1 (Victim Lee Lawrence) 20 Intentionally causing injury 4 years and 6 months Base Indictment H11432231D (Victim George Kyritsis) 2 Recklessly causing injury 9 months 3 months Total effective sentence 5 years and 11 months’ imprisonment Non-parole period 4 years Presentence detention 471 days Section 6AAA statement Indictment H11432231B: 9 months’ imprisonment
Indictment H11432231D: 1 year’s imprisonment
Leave to appeal was granted on two grounds:
1. There was an error in the sentence that resulted from the sentencing judge:
1.1 Having regard to the conduct that constituted charges 2, 5, 6, 7, 8, 9, 10, 11 and 13 when sentencing the [appellant] on charge 1 of the Matotek matter; and
1.2 Imposing an additional sentence on charges 2, 5, 6, 7, 8, 9, 10, 11 and 13.
2. There was an error in the sentence imposed that resulted from the sentencing judge:
2.1 Giving manifestly insufficient weight to the extent to which totality applied as a result of the sentence imposed on the [appellant] on 10 August 2018; and
2.2 Imposing a manifestly excessive sentence (3 years) and order for cumulation (1 year) on charge 1 of the Matotek matter and a manifestly excessive sentence (4 years 6 months) on charge 20 of the Lawrence matter, which resulted in a manifestly excessive total effective sentence.
We would dismiss the appeal. Our reasons follow.
Offending
In order to understand the issues in the appeal, it is necessary to provide a brief summary of the appellant’s offending.
Charge 1 on indictment H11432231A.2: Stalking — Convicted at trial
At relevant times the appellant lived on a property in Christmas Hills. It seems that, following a subdivision, the appellant formed a grievance against Matthew Matotek, the occupier of a neighbouring property. Unlawfully giving vent to his resentment, between 22 February 2010 and 13 April 2011 the appellant engaged in a campaign of terror against Mr Matotek, attended by a number of features more fully described below, but which included: approaching and threatening Mr Matotek at his residence shortly after he took possession of the property on 22 February 2010; loosening the wheel nuts on Mr Matotek’s trailer; damaging a deal of Mr Matotek’s property (including a motor vehicle, CCTV equipment, water tank, electrical wiring and padlocks); leaving a pile of dirt, a noose and a headless doll at the front gate of Mr Matotek’s residence; and sending an SMS to Mr Matotek on 13 April 2011 saying, ‘The best is yet to come, you fuckin’ dog.’
Charges 2 to 8, 11 and 13 on indictment H11432231A.2: Criminal damage — Convicted at trial
The basis of the charges of criminal damage was that at different times during the period between October 2010 and March 2011 the appellant:
· placed screws on the driveway of Mr Matotek’s residence, causing damage to the tyres of his motor vehicle (charge 2);
· placed screws on the driveway of Mr Matotek’s father, Daryl Matotek, in North Warrandyte, causing damage to the tyres of his father’s motor vehicle (charge 3);
· used bolt cutters to cut a padlock at Mr Matotek’s Christmas Hills residence, causing damage to the padlock (charge 4);
· tore five CCTV cameras from their mounting brackets at Mr Matotek’s residence and smashed the camera lenses, causing damage to the CCTV cameras (charge 5);
· slashed a water tank at Mr Matotek’s residence with a cutting instrument, causing damage to the water tank (charge 6);
· cut and removed padlocks from various locations around Mr Matotek’s residence, causing damage to the padlocks (charge 7);
· again tore CCTV cameras from their mounting brackets at Mr Matotek’s residence and smashed the camera lenses, causing damage to the cameras (charge 8);
· slashed electrical wiring inside a shed at Mr Matotek’s property, causing damage to the wiring (charge 11);
· removed a ball valve from a water tank, causing damage to the water tank at Mr Matotek’s residence (charge 12); and
· glued shut padlocks to secure a shed causing damage to the padlocks at Mr Matotek’s residence (charge 13).
Charges 9 and 10 on indictment H11432231A.2: Attempted criminal damage and burglary — Convicted at trial
Sometime around January or February 2011 the appellant entered a large shed on Mr Matotek’s property with intent to damage property within (charge 10). He damaged electrical wiring and attempted to damage the water filtration system by contaminating the system with turpentine, rendering it inoperable (charge 9).
Charge 2 on indictment H11432231B: Recklessly causing injury — Plea of Guilty
The appellant also involved himself in a dispute between neighbours Glen Dumergue and Barbara and Ann Hodgson (‘the Hodgson twins’), which involved a claim of adverse possession and the correct location of boundary fencing. Mr Dumergue leased the property at 382 Steels Creek Road, Steels Creek, and the Hodgson twins lived at the adjoining property at 336 Steels Creek Road.
Mr Dumergue wished to build a bridge over a creek that ran along the back of his property. To that end, on 12 April 2012 at about 3.00 pm, he was near the creek waiting for a tradesman to attend. The Hodgson twins approached and asked what he was doing.
Shortly afterwards, the appellant arrived at the Hodgson twins’ property. Barbara Hodgson pointed at Mr Dumergue and said, ‘That’s Glenn, that’s him’. The appellant then crossed onto Mr Dumergue’s property, pulled him out of the chair in which he was sitting and struck him. Mr Dumergue fell to the ground and the appellant continued to strike him, including striking him across the back with a chair. As a result, Mr Dumergue suffered cuts, abrasions and bruising to the face. After the assault, the appellant had a further conversation with Barbara Hodgson. Mr Dumergue walked away from the area and telephoned police.
Charge 2 on indictment H11432231D: Recklessly causing injury — Plea of Guilty
On 10 August 2015, the appellant recklessly caused injury to another man, George Kyritsis, at the Kangaroo Ground Tennis Club, by punching him in the face. At the time, the appellant was living with Melinda Pitts and their three children at 228 Ridge Road, Christmas Hills. Mr Kyritsis, did not know the appellant.
It seems that, a week previously, Ms Pitts had approached Mr Kyritsis and remonstrated with him. She apparently was displeased that Mr Kyritsis had accused the son of one of her friends of stealing alcohol when attending a sixteenth birthday party at the Kyritsis’ residence. In the course of this confrontation, Mr Kyritsis suggested that Ms Pitts was acting like an irresponsible adult.
On the day that he was injured, Mr Kyritsis had taken his daughter to the tennis club for a lesson. Ms Pitts was there with her three children. While Mr Kyritsis was sitting on a bench talking on the telephone, the appellant and another male arrived at the club. Mr Kyritsis saw the appellant’s son speak to the appellant and point towards him. The appellant then walked over to Mr Kyritsis and sat on the same bench, while the other male stood a couple of metres behind. When Mr Kyritsis finished talking on the phone, he turned to his left and was immediately punched in the face by the appellant. The punch caused Mr Kyritsis to fall backwards, where he lay unconscious on the ground. He had suffered a displaced nasal fracture extending to the right frontal process of the maxilla. A witness observed the appellant standing over Mr Kyritsis in an aggressive manner, telling him to get up. The appellant and the other male then left.
When arrested and interviewed on 27 November 2015, the appellant made no comment. Later, on 22 December 2017, he was once more arrested, and was charged and remanded in custody.
Charge 20 on indictment H11432231C.1: Intentionally causing injury — Convicted at trial
Indictment H11432231C.1 contained 21 charges. At trial, the jury acquitted the appellant of charges 1 to 19 — which included six charges of arson, two charges of reckless conduct endangering life, one charge of extortion and ten charges of criminal damage — but found him guilty of charge 20, intentionally causing injury to Lee Lawrence. (No verdict was taken on charge 21, recklessly causing injury, which was an alternative to charge 20.)
The conduct embraced by charges 1 to 18 was alleged to have occurred between August 2012 and January 2015. At the time of the alleged offending, the appellant was in a relationship with Wendy Campion, who had previously been involved in a relationship with Anthony Howard. The prosecution case was that the conduct embraced by the charges was an attempt by the appellant to dissuade Mr Howard from pursuing property proceedings against Ms Campion. As we have said, the jury acquitted the appellant of those charges.
Charges 19 to 21 related to conduct between January and March of 2017, and concerned the appellant allegedly targeting two men, Andrew Goodwin and Lee Lawrence. Mr Goodwin and the appellant had been involved in a ‘road-rage’ incident in 2016. Both Mr Goodwin and Mr Lawrence had made statements to police in relation to that incident. Charge 19, reckless conduct endangering life — of which the jury acquitted the appellant — involved an allegation that the appellant had left an improvised explosive device in Mr Goodwin’s letterbox. The alleged motive behind the attack was to discourage both men from acting on the statements they had given to police.
The basis of charge 20 — upon which the jury convicted — was that the appellant arranged for another man to attack Mr Lawrence, knowing or believing that injury would be caused. Thus, on 7 March 2017, Mr Lawrence was leaving his residence early one morning to go to work when he observed a vehicle parked in the street. When he approached the vehicle, the driver — dressed in black and wearing a balaclava — got out and attacked him with a bat or rod. Mr Lawrence suffered a fractured arm, a cut to the back of his head and an abrasion to his elbow. Once more, it was alleged that the appellant’s motive for the offending was to discourage Mr Lawrence from acting on the statement he had given to police.
Victim impact statements
Victim impact statements of Mr Matotek and his mother were tendered. Mr Matotek described his depression, anger and frustration of not being able to use his property, run his business and protect his family. His mother, Mirella Matotek, described feelings of hopelessness and helplessness.
In his victim impact statement, Mr Dumergue spoke of the loss of his sense of personal safety. Mr Kyritsis submitted a victim impact statement that described his sense of security as having been compromised. And in his victim impact statement, Mr Lawrence described his ongoing anguish and fear and his need to maintain a heightened sense of alert.
The appellant’s personal circumstances
As we have said, the appellant is now aged 50. He has been in custody since his arrest on 22 May 2017.
The appellant has a significant number of prior convictions, commencing when he was aged 19. They include: recklessly causing serious injury (1991); assault with a weapon (1992 and 2000); resisting police (1993); obstructing police (1994); making a threat to kill (1994); extortion with a threat to kill (1994); burglary (1989 and 1994); damaging property (1989, 1991 and 2000); theft of a motor car (1989); using threatening words in public place (1994); using indecent language in public place (1994); using insulting words in public place (2002); and for minor drug and traffic offences. The appellant also has subsequent convictions, including: recklessly causing injury (2014); trafficking amphetamines, cultivating a narcotic plant, drug possession, and dealing with proceeds of crime (2014); and reckless conduct endangering serious injury (2014).
So far as his personal history is concerned, the appellant was educated to Year 10. He then completed a cabinet-making apprenticeship, in the course of which his family relocated from Yarra Glen to Echuca. When he was aged 20, the appellant’s father committed suicide and the appellant found the body.
The appellant met Melinda Pitts in Echuca in 1991 and their relationship developed. He was employed as a retail shop-fitter and was often travelling for work. When the appellant’s mother relocated the family to the Eltham area, Ms Pitts moved in with the family.
In 1994, when the appellant was in custody (having been sentenced to imprisonment for burglary, making threats to kill and extortion), his first child was born. Ms Pitts ended their relationship in 1995 and moved back to Echuca. They reconciled, however, in 1996, and their second child was born. In 1996, the appellant, Ms Pitts and their family moved to the address in Ridge Road, Christmas Hills, where Ms Pitts and the children still reside.
The appellant continued to work in cabinet-making. He commenced seeing a psychologist in 1996, as a result of anxiety and related issues, and was treated for grief in relation to his father’s death. In 1997, the appellant was placed on a disability pension and remained on that until incarcerated. Ultimately, his relationship with Ms Pitts ceased in 2013, although they continued to live in the same house. At the time that he went into custody, the appellant had been in a relationship with Wendy Campion since 2002.
In 2016, the appellant had open heart surgery for a mitral valve prolapse, and he remains on medication related to this condition.
Reasons for sentence
In the course of his sentencing remarks, the judge addressed the appellant’s personal circumstances, and observed that his criminal history includes dishonesty offences, recklessly causing injury, and criminal damage. Having regard to that history and the nature of the current offending, the judge assessed the appellant’s prospects of rehabilitation as ‘guarded’.
As to the appellant’s offending against Mr Dumergue and Mr Kyritsis, the judge observed that his ‘resort to violence against [his] unsuspecting victims is a matter of concern’, and that his ‘continued striking of Mr Dumergue whilst he was on the ground, and [his] rendering Mr Kyritsis unconscious and breaking his nose, serve to underpin [his] culpability for these offences’.
With respect to the offences against Mr Matotek, the judge said that ‘the true extent of the seriousness of [the appellant’s] offending lies not in a separate consideration of what of themselves might be acts of comparatively-speaking, a low order, but in the cumulative effect of them on [his] victim’. His moral culpability for the offending was ‘high’.
Dealing with the attack upon Mr Lawrence, the judge considered that the appellant’s motive for the offending — to prevent Mr Lawrence and another witness from acting on the statement he had given to police — was a ‘significant aggravating feature’. The judge also expressed the view that the appellant’s involvement in the ‘terrifying attack’ was ‘not spontaneous’.
The appellant’s guilty pleas in the Dumergue and Kyritsis offences, and his offers to plead guilty to these offences, the judge said, ‘have facilitated the course of justice and demonstrate some remorse on [his] part’. Further, the judge said that he had regard to the passage of time between offending and sentencing.
We will refer to other relevant aspects of the judge’s sentencing reasons when addressing the grounds of appeal.
Ground 1: Double punishment
The first ground concerns the sentences imposed on the charges involving Mr Matotek on Indictment H11432231A.2.[8]
[8]See [7] to [9] above.
It will be remembered that the judge imposed a discrete sentence of three years’ imprisonment on the stalking charge (charge 1), and individual sentences of three months’ imprisonment (charges 3 and 12), two months’ imprisonment (charge 4) and one month’s imprisonment (charge 2, 5 to 11, and 13), on the balance of the charges, all to be served concurrently.
In his reasons for sentence, the judge observed that particulars of the stalking charge, charge 1, overlap with the substantive charges 2, 5, 6, 7, 8, 9, 10, 11 and 13, and said that
where there is a factual overlap between a substantive charge and a particular of the stalking, I will moderate the sentence which I impose on the substantive charge to avoid doubly punishing you.
The judge also said:
Your stalking and allied offending amounts to a campaign of terror which you unleashed on your neighbour. He gave evidence that he effectively abandoned the property in question as a result of the impact of your offending.
The true extent of the seriousness of your offending lies not in a separate consideration of what of themselves might be acts of comparatively-speaking, a low order, but in the cumulative effect of them on your victim.
I am satisfied that you, for your own purposes, wanted to be rid of your neighbour and you set about achieving this. …
In support of the ground, counsel for the appellant submitted that the sentencing judge, having found that the appellant committed each of the ‘particulars’ that informed the stalking charge, then had regard to the conduct that constituted the nine substantive charges (charges 2, 5, 6, 7, 8, 9, 10, 11 and 13) when sentencing the appellant for stalking. Counsel contended that the appellant was thus punished for the conduct that constituted the substantive charges both when he was sentenced in relation to those charges and when he was sentenced on charge 1. That, counsel submitted, was an error. It was an error that was not cured by the judge stating that he would moderate the sentences on the substantive charges in order to avoid double punishment. Moreover, so counsel submitted, the judge did not moderate the sentence on charge 1.
Counsel for the appellant argued that the judge should have adopted one of two options in order to avoid error. First, the judge could have sentenced the appellant on the nine substantive charges, with the conduct that constituted those charges not being taken into account when the sentence on charge 1 was determined. Secondly and alternatively, the conduct embraced by the nine substantive charges could have been reflected in the sentence imposed on charge 1, with no penalty then being imposed on those nine charges. To prop up his contentions, counsel relied on s 51(1) of the Interpretation of Legislation Act 1984 (‘the Interpretation Act’) and Pearce,[9] and cited Loader,[10] Lecornu,[11] Zarghami,[12] Felton[13] and Thomas.[14]
[9]Pearce v The Queen (1998) 194 CLR 610, 623 (‘Pearce’).
[10]Loader v The Queen (2011) 33 VR 86.
[11]Lecornu v The Queen (2012) 36 VR 382 (‘Lecornu’).
[12]Zarghami v The Queen [2020] VSCA 74.
[13]DPP v Felton (2007) 16 VR 214.
[14]Thomas v Campbell (2003) 9 VR 136 (‘Thomas’).
We do not accept the submissions advanced by the appellant’s counsel.
Section 21A of the Crimes Act 1958 provides that, to be guilty of stalking, a person must engage in a course of conduct with the intention of causing physical or mental harm to the victim, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person. The relevant course of conduct may include a variety of acts, categorised in s 21A(2) as follows:
(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following—
(a) following the victim or any other person;
(b) contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever;
(ba)publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material—
(i) relating to the victim or any other person; or
(ii) purporting to relate to, or to originate from, the victim or any other person;
(bb) causing an unauthorised computer function (within the meaning of Subdivision (6) of Division 3) in a computer owned or used by the victim or any other person;
(bc) tracing the victim’s or any other person’s use of the Internet or of e-mail or other electronic communications;
(c) entering or loitering outside or near the victim’s or any other person’s place of residence or of business or any other place frequented by the victim or the other person;
(d) interfering with property in the victim’s or any other person’s possession (whether or not the offender has an interest in the property);
(da) making threats to the victim;
(db) using abusive or offensive words to or in the presence of the victim;
(dc) performing abusive or offensive acts in the presence of the victim;
(dd) directing abusive or offensive acts towards the victim;
(e)giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;
(f) keeping the victim or any other person under surveillance;
(g) acting in any other way that could reasonably be expected—
(i) to cause physical or mental harm to the victim, including self-harm; or
(ii) to arouse apprehension or fear in the victim for his or her own safety or that of any other person—
with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person.
As is readily apparent from s 21A(2)(d), ‘interfering with property in the victim’s or any other person’s possession’ is but one of the various aspects of a ‘course of conduct’ which may constitute stalking.
In the present case, the charge of stalking was formulated as follows:
CHARGE 1 The Director of Public Prosecutions charges that MARK SAWYER at Christmas Hills in Victoria between the 22nd day of February 2010 and the 13th day of April 2011 stalked MATTHEW MATOTEK by:
(a) Approaching and threatening MATTHEW MATOTEK while he was at 238 Ridge Road shortly after MATTHEW MATOTEK took possession of that property on the 22nd of February 2010; and/or
(b) Loosening the wheel nuts on a trailer at 238 Ridge Road that was used by MATTHEW MATOTEK between the 1st of October 2010 and the 30th of November 2010; and/or
(c) Placing screws on the driveway of MATTHEW MATOTEK at 238 Ridge Road which caused damage to the tyres of his motor vehicle between the 1st of October 2010 and the 30th of November 2010; and/or
(d) Damaging CCTV equipment and a water tank at 238 Ridge Road belonging to MATTHEW MATOTEK between the 20th and 21st of December 2010; and/or
(e) Damaging five padlocks, CCTV equipment and water tank and breaking and entering into a shed and causing damage to electrical wiring and a water filtration system at 238 Ridge Road belonging to MATTHEW MATOTEK between the 28th of January 2011 and the 26th of February 2011; and/or
(f) Damaging three padlocks, leaving a pile of dirt, a noose and a headless doll at MATTHEW MATOTEK’s front gate at 238 Ridge Road between the 1st and the 21st of March 2011; and/or
(g) Sending an SMS to MATTHEW MATOTEK on the 13th of April 2011.
Statement of Offence — Stalking contrary to s 21A of the Crimes Act 1958
It is important to note that not all of the conduct said to constitute the alleged stalking was reflected in the substantive charges. Hence the ‘threatening’ in particular (a); the loosening of wheel nuts on a trailer in particular (b); the ‘leaving a pile of dirt, a noose and a headless doll’ in particular (f); and the sending of an SMS in particular (g) (which was in threatening and abusive terms),[15] had no counterpart in the other charges on the indictment.
[15]See [7] above.
And although several other particulars of the alleged stalking were reflected in substantive charges, there was no complete overlap. Hence:
· charge 2, damaging a motor vehicle, generally reflects particular (c);
· charge 5, damaging five CCTV cameras, generally reflects part of particular (d);
· charge 6, damaging a water tank, reflects part of particular (d);
· charge 7, damaging five padlocks, partly reflects particular (e);
· charge 8, damaging five CCTV cameras, partly reflects particular (e);
· charge 9, attempting to damage a water filtration system, partly reflects particular (e);
· charge 10, burglary, partly reflects particular (e);
· charge 11, damaging electrical wiring, partly reflects particular (e); and
· charge 13, damaging three padlocks, partly reflects particular (f).
It is also important to understand that each of the appellant’s individual acts of damaging (or attempting to damage) property and the burglary, were part of a course of conduct which involved a series of different — but closely connected — acts. Thus, as we have indicated, quite apart from the damage (and attempted damage) to property and the burglary of the shed falling with s 21A(2)(d), the course of conduct engaged in by the appellant in the present case between 22 February 2010 and 13 April 2011 — with the intention of causing physical or mental harm to Mr Matotek, or of arousing apprehension or fear for his own or another’s safety — included threatening Mr Matotek; loosening the wheel nuts on his trailer; leaving a pile of dirt, a noose and a headless doll at his front gate; and sending a text message to him, those activities engaging ss 21A(2)(b), (c), (da), (db) and (g).
Section 51 of the Interpretation Act makes it clear that, where an offender has committed an act (or omission) which constitutes an offence under more than one law, he or she may — unless the contrary intention expressly appears — be prosecuted under one or more of those laws, but cannot be punished more than once for the same act (or omission). It provides:[16]
[16]Emphasis added.
51 Provisions as to offences under two or more laws
(1) Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.
(2) In subsection (1) law means—
(a)an Act or a provision of an Act;
(b)a subordinate instrument or a provision of a subordinate instrument; or
(c)common law.
Pearce sets out the common law position. In Pearce the High Court held that the appellant had been subjected to double punishment, in circumstances where he was convicted and sentenced for both malicious infliction of grievous bodily harm, and breaking and entering a dwelling-house and inflicting grievous bodily harm therein. McHugh, Hayne and Callinan JJ set out the relevant principles:[17]
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
In the present case we need not decide whether this result is properly to be characterised as good sentencing practice or as a positive rule of law. There is nothing in s 33 or 110 of the Crimes Act more generally which suggests that Parliament intended that an offender such as the appellant should be twice punished for his inflicting grievous bodily harm on his victim. Nor do we consider that any such intention can be gathered from s 57 of the Interpretation Act 1987 (NSW).[[18]] As stated above, that section merely supplements and does not supplant the practice or rule with which we now deal.
It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by ‘excessive subtleties and refinements’. It should be approached as a matter of common sense, not as a matter of semantics.
[17]Pearce, 623 [40]–[42] (citations omitted; emphasis added).
[18]Section 57 provided:
If an act or omission constitutes an offence under both:
(a) an Act or statutory rule, and
(b) a law of the Commonwealth or a law of some other State or Territory,
and a penalty has been imposed on the offender in respect of the offence under a law referred to in paragraph (b), the offender is not liable to any penalty in respect of the offence under the Act or statutory rule referred to in paragraph (a).
Pearce was applied in Thomas, a case in which the appellant had been convicted in the Magistrates’ Court of assault with a weapon, breach of an intervention order and stalking. Rejecting a contention that it was an abuse of process for the prosecution to charge the appellant with stalking as well as specific offences of assault, Nettle J observed:[19]
It would no doubt be wrong to punish an offender twice for the commission of elements which are common to unlawful assault and stalking.[20] But that is a different matter to the question of whether the offender may be convicted of both offences. Hence, even if it were shown to have been unnecessary to charge the offender with both offences, that fact alone would not be enough to warrant that one or other of the convictions be quashed.[21]
[19]Thomas, 150 [41] (citations as in original).
[20]Pearce, above, at 623, [40]; Director of Public Prosecutions v Foster [1999] 2 VR 643 at 660, [60].
[21]R v Sessions [1998] 2 VR 304 at 314.
When analysing the elements of the crime of stalking, Nettle J earlier had said:[22]
The elements of stalking are not the same as the elements of unlawful assault and not all of the elements of either offence are included in the elements of the other. The actus reus of unlawful assault is an act raising in the mind of the victim the fear of immediate violence to the victim. Contrastingly, the actus reus of stalking is engaging in a course of conduct that includes acting in a way that could reasonably be expected to arouse apprehension or fear in the victim for his own safety or that of any other person, where the course of conduct engaged in actually has that effect. The mens rea for assault is an intention to produce fear of unlawful physical contact with the victim or recklessness (in the sense of realisation that it may have that effect, and still persisting with it). The mens rea for stalking is an intention to cause physical or mental harm or of arousing apprehension or fear in the victim for the victim’s own safety or that of any other person. Consequently, it would not be necessary to prove an offence of unlawful assault in order to prove an offence of stalking and equally proof of an offence of assault would not be enough to establish an offence of stalking.
In some cases, of which this appears to be one, the acts which are relied upon as establishing a course of conduct amounting to stalking may also be relied upon as establishing individual assaults. But even in those cases the elements of the offence of stalking are still not the same as the elements of the individual assaults.[23] A person cannot be convicted of two offences of which one is merely an aggravated form of the other, but as has already been seen, stalking is not merely an aggravated form of assault, and the fact that both offences may arise out of the same facts is not enough in itself to preclude conviction of both offences. While there are circumstances in which an accused should not be charged with more than one offence arising out of the same facts — and if he is and is convicted on both, the conviction on one is liable to be set aside — that will not be the case where the principles essayed in R v Newman and Turnbull[24] mandate that both charges be joined together.[25] In my opinion this is a case in which those principles may apply. The ‘course of conduct’ which is the essence of the offence of stalking creates the potential — if not the inevitable consequence — that in some circumstance the charge of stalking will be more serious than any individual offences which constitute the course of conduct and in other circumstances charges of individual assault will be far more serious than the charge of stalking.[26]
[22]Thomas, 149–50 [39]–[40] (citations as in original; emphasis added).
[23]Environmental Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 at 508; Nadarajamoorthy v Moreton [2003] VSC 283 at [45]–[46].
[24][1997] 1 VR 146.
[25]R v Henderson [[1999] 1 VR 830] at 835–6, [21].
[26]Compare R v Hoar (1981) 148 CLR 32 at 38.
Atkinson,[27] like the present case and Thomas, was concerned with charges of stalking laid in conjunction with other discrete charges. In Atkinson, the applicant had pleaded guilty (among others) to two charges of stalking (charges 1 and 2) and three charges of discharging firearm at premises (charges 6, 7 and 8). On each charge of stalking, he was sentenced to four years and six months’ imprisonment; and on the charges of discharging firearm at premises, he was sentenced respectively to four years and six months’ imprisonment (charge 6), four years’ imprisonment (charge 7) and three years and six months’ imprisonment (charge 8). Orders were made cumulating 18 months of the sentence on charge 2, seven months of the sentences on charges 6 and 7, and four months of the sentence on charge 8, upon the sentence on charge 1. In this Court it was contended that the applicant had been subjected to double punishment.
[27]Atkinson v The Queen [2021] VSCA 127 (Priest and T Forrest JJA) (‘Atkinson’).
After a review of authority — including Pearce, Sessions,[28] Bradley[29] and Lecornu — the Court as presently constituted said that[30]
it is plain that s 51 of the Interpretation Act permitted the applicant to be ‘prosecuted’ under s 131A(2) of the Firearms Act 1996 for the ‘act’ of using the firearm in each case to discharge a bullet (or bullets) with the relevant intent, and also to be ‘prosecuted’ for stalking under s 21A of the Crimes Act 1958, where that ‘act’ of discharging the firearm in each case was also an ‘act’ which was part of a series of acts establishing the proscribed course of conduct. What s 51 did not permit, however, was the applicant to be ‘punished’ more than once for the ‘same act’.
Furthermore, for the purposes of the common law, the applicant’s ‘act’ of using the firearm in each case to discharge a bullet (or bullets) was not a wholly common element of the offence and s 131A(2) of the Firearms Act 1996 and stalking under s 21A of the Crimes Act 1958. …
[28]R v Sessions [1998] 2 VR 304.
[29]Bradley v The Queen [2010] VSCA 70.
[30]Atkinson, [24]–[25].
By parity of reasoning, we consider it to be plain that s 51 of the Interpretation Act permitted the appellant to be ‘prosecuted’ under s 197(1) (and s 321M) and s 76 of the Crimes Act 1958 for the ‘act’ in each case of damaging (or attempting to damage) property and of entering the shed as a trespasser with intent to commit damage to property, and also to be ‘prosecuted’ for stalking under s 21A of that Act, where that ‘act’ of damaging (or attempting to damage) property and of entering the shed as a trespasser with intent to commit damage to property was also an ‘act’ which was part of a series of acts establishing the proscribed course of conduct. What s 51 prohibited was the appellant being ‘punished’ more than once for the ‘same act’. So far as that is concerned, in order to be a relevant act constituting part of a ‘course of conduct’ for the purposes of stalking, it was a necessary element that the particular act be done ‘with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person’. Self-evidently, that is not an element of the offences created by s 197(1) and s 76 of the Crimes Act 1958.
Moreover, for the purposes of the common law, the appellant’s ‘act’ of damaging (or attempting to damage) property and of entering the shed as a trespasser with intent to commit damage to property, was not a wholly common element of the offence of stalking. As we have said, to be a relevant act constituting part of a ‘course of conduct’ for the purposes of stalking, it was a necessary element that the act was done ‘with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person’, so much not being an element of the offences of damaging (or attempting to damage) property or burglary.
Nettle J made clear in Thomas that the actus reus and mens rea of the offence of stalking may be different to those of offences committed during the period of the stalking which have a common factual underpinning. Offences possessing different elements — stalking on the one hand, particular offences on the other — may single out for punishment different aspects of conduct which are part of a factual subset.
The discrete charges in this case — damaging (and attempting to) damage property and burglary — are intrinsically concerned with the interference with another’s property rights. On the other hand, whilst the charge of stalking incorporated acts of interference with the property rights of another, the gravamen of the stalking offence was not of itself such interference. Rather, the gist of the stalking offence was the intended effect of that interference (together with the other conduct alleged) upon the victim’s mental state. As we have said, the acts of interference with property (and other conduct alleged) needed to have been done ‘with the intention of causing … mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person’. Hence, the ‘property offences’ do not embrace all that falls for punishment with respect to the stalking offence, and punishment for the property offences will relate to conduct not all of which is encapsulated by the stalking offence, albeit that the two sets of offences enjoy a common factual origin.
The judge’s sentencing remarks make it plain that he was astute to avoid double punishment.[31] Thus, where there was ‘a factual overlap’ between a substantive charge and a ‘particular’ of the stalking charge, the judge reduced the sentence on the substantive charge to accommodate the overlap. (Indeed, we consider that the very moderate sentences imposed on the substantive charges illustrate the judge’s adoption of that approach.) Moreover, the judge effected complete concurrency of the sentences for the substantive charges upon the sentence for the stalking charge, thereby avoiding the kind of problem that arose in Orgill.[32] In our view, the judge’s approach was unexceptionable.
[31]See [38] above.
[32]R v Orgill [2007] VSCA 236.
Finally, we should add that we consider the sentence imposed on the charge of stalking to be quite moderate.[33]
[33]See [40] above.
For these reasons, we would not uphold the first ground.
Ground 2: Claimed manifestly excessive individual sentences and breach of the principle of totality
Under cover of ground 2, the appellant asserted that the individual sentences for the charge of stalking involving Mr Matotek, and for the charge of intentionally causing injury involving Mr Lawrence, were manifestly excessive; and that the order for cumulation with respect to the sentence on the stalking charge, resulted in a manifestly excessive sentence.
We reject the contention that the sentence for stalking is manifestly excessive. In our view, the individual sentence of three years’ imprisonment imposed for what the judge aptly described as ‘a campaign of terror’ was wholly appropriate. The appellant’s was a very serious, protracted and nasty offence, which was not mitigated by a plea of guilty. General and specific deterrence, denunciation, punishment and community protection all needed to be given prominence in the sentence imposed on the appellant.
We also reject the contention that the sentence of four years and six months’ imprisonment imposed for intentionally causing injury to Mr Lawrence is manifestly excessive. The seriousness of the offence of intentionally causing injury in this case must be gauged both by the injuries caused and by the manner of their infliction.[34] Although the injuries to Mr Lawrence may not have qualified as ‘serious injury’ as that term is now defined,[35] they were far from insignificant, and involved the fracturing of his arm. Moreover, the circumstances of their infliction, and the motives underlying their infliction, were extremely serious. Once more, the judge’s description — he said it was a ‘terrifying attack’ — was entirely apt. And once more, the appellant could not call in aid a guilty plea in mitigation. In our view, the sentence imposed for the offence against Mr Lawrence comfortably fell within the range of sentences open to the judge in the sound exercise of discretion.
[34]Phillips v The Queen [2017] VSCA 313, [54] (‘Phillips’); Shau v The Queen [2020] VSCA 252, [2]; Gommers v The Queen [2021] VSCA 258, [44].
[35]See Phillips, [52]–[53].
Turning to the other aspects of the ground, the appellant was, as we have mentioned, remanded in custody on 22 May 2017. Whilst thus remanded, on 10 August 2018 he was sentenced in the Magistrates’ Court to 18 months’ imprisonment, with a non-parole period of 12 months, for reckless conduct endangering serious injury. That offence — described as an incident of ‘road rage’ — had been committed on 2 December 2016, and was the event witnessed by Mr Goodwin and Mr Lawrence (and with respect to which they had provided statements to police which the appellant wished withdrawn).
Also under cover of the second ground of appeal, counsel for the appellant contended that, having regard to the combined effect of the sentence imposed on 10 August 2018 and the sentence imposed by the sentencing judge, the appellant will from 22 May 2017 have been in custody for five years and six months before he is eligible for parole, and it will be seven years and five months before his sentence expires. That sentence, in each component, so counsel submitted, is manifestly too long, and reveals that insufficient weight was given to the extent to which totality applied as a result of the sentence imposed on the appellant on 10 August 2018.
As part of these submissions, counsel contended (as we have said) that the individual sentences of imprisonment imposed for stalking and for intentionally causing injury to Mr Lawrence were too long, contentions which we earlier rejected. Counsel also submitted that the order cumulating 12 months of the sentence on the stalking charge upon the base sentence was manifestly excessive. We also reject that submission. If anything, the order for cumulation of only 12 months of the sentence is very moderate. Further, we note that the individual sentences for the charges involving Mr Dumergue and Mr Kyritsis appear to us to be lenient, and the cumulation ordered of those sentences to be somewhat benevolent.
The twin contentions that the judge gave insufficient weight to totality, and that individual sentences and the total effective sentence are manifestly excessive, are without any substance. Ground 2 therefore fails.
Conclusion
The appeal must be dismissed.
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