Niehus v Police - [2012] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NIEHUS v POLICE
[2012] SASC 56
Judgment of The Honourable Justice Gray
10 April 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - defendant convicted following trial in the Magistrates Court of offence of stalking - the conduct breached a six month suspended sentence bond imposed for offence of possession of child pornography - conduct also breached a good behaviour bond imposed for breaches of bail - where the Magistrate sentenced the defendant to cumulative terms of imprisonment in respect of the offending: the suspended sentence of six months imprisonment was revoked, a sentence of two weeks imprisonment was imposed for the breach of the good behaviour bond, and a sentence of eight months imprisonment was imposed for the stalking offending - in respect of the total term of 14 months and two weeks, a non-parole period of 9 months was imposed - where the Magistrate ordered that the defendant pay the prosecution costs fixed at $1000.00 - whether the overall penalty was manifestly excessive, and in particular, whether the Magistrate failed to give proper consideration to the sentences being ordered to be concurrent or partly concurrent.
Held: appeal allowed for the limited purpose of setting aside the order for costs - otherwise, orders imposed confirmed - no error of sentencing principle demonstrated - the defendant has demonstrated a complete disregard of orders of the Court - however, in circumstances where the defendant faced an immediate term of imprisonment of nine months, the making of the order for costs was inappropriate.
Intervention Orders (Prevention of Abuse) Act 2009 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 13, s 19A and s 58(4); Criminal Law Consolidation Act 1935 (SA) s 19AA(2)(b), referred to.
R v Copeland (No 2) (2010) 108 SASR 398; Nesbitt v Harries (Unreported, Supreme Court of South Australia, Mulligan J, 15 March 1991, 2770); R v Jones [2005] SASC 183, [31] (Gray, Sulan and Layton JJ), considered.

NIEHUS v POLICE
[2012] SASC 56
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
The defendant and appellant, Christopher Niehus, was charged with the offence of stalking.[1] It was alleged that the stalking took place between 28 and 31 December 2009. It was further alleged that the offence was aggravated in that the offence was committed in connection with the victim’s conduct in a legal proceeding. On 25 November 2011, following a trial before a Magistrate the defendant was convicted. At that time bail was revoked and the defendant was remanded in custody. On 22 December 2011, the defendant was sentenced in respect of the stalking offence to a term of imprisonment of eight months.
[1] Contrary to section 19AA(2)(b) of the Criminal Law Consolidation Act 1935 (SA).
The defendant’s conduct in committing the offence of stalking breached a suspended sentence bond. On 20 May 2008, the defendant had been sentenced to a term of imprisonment of six months for the offence of possessing child pornography. That sentence was suspended on his entry into a two year good behaviour bond. The sentencing Magistrate below revoked the order of suspension.
The defendant’s conduct in committing the offence of stalking also breached a good behaviour bond. On 15 May 2008, the defendant was sentenced for the offences of breach of bail. The terms of his bail had precluded contact being made with the same victim the subject of the stalking offence. He had been released on a good behaviour bond, a term of which required him to attend Court to be resentenced in the event of a breach of the bond. The Magistrate below imposed a sentence of 14 days imprisonment in respect of the breach of the bond imposed for the breach of bail offending.
The Magistrate sentenced the defendant to cumulative terms of imprisonment in respect of the above offending. As a consequence, the defendant faced a total term of imprisonment of 14 months and two weeks. The Magistrate fixed a non-parole period of nine months in respect of the total term of imprisonment imposed.
In addition to the orders of imprisonment the Magistrate made an order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). In making this order the Magistrate called in aid section 19A of the Criminal Law (Sentencing) Act 1988 (SA). That order was in the following terms:
36 Pursuant to s 19A of the Criminal Law (Sentencing) Act this court orders in relation to protected persons nominated as [the victim] and [the victim’s husband] that you must not:
(1) Assault, threaten, harass or intimidate the protected persons.
(2) Follow or keep the protected persons under surveillance.
(3)Contact or communicate with the protected persons either directly or in any way including phone, letter, cards, SMS messages, e-mail, etc.
(4)Enter or remain in the vicinity of the protected persons place of residence, place of employment or any other place at which they are staying or working.
(5)Publish by any means whatsoever including on the internet, by e-mail, SMS or any other electronic means any material about the protected persons or about any offence committed by you of which the protected person [the victim] was the victim.
Finally, the Magistrate ordered that the defendant pay the prosecution costs which he fixed in the sum of $1,000.00. In that respect the Magistrate observed:
In general terms I think the application is well made and that is conceded by counsel for Mr Niehus but having regard to all matter and particularly the fact that he has no real capacity to pay I am going to make an order that it will be greatly limited. There will be an order that Mr Niehus meet the costs of prosecution fixed in the sum of $1000. I will waive court costs.
On the appeal, it was submitted that the overall penalty was manifestly excessive. It was said that this arose because the Magistrate had failed to give proper consideration to the sentences being concurrent or partly concurrent. It was further contended on the hearing of the appeal that the circumstances of the offending and the personal circumstances of the defendant warranted a lower non-parole period. Finally, it was contended that as the defendant faced immediate imprisonment no order as to costs should have been made.
The defendant commenced a relationship with the victim in 2003. He and the victim lived together for about two years. At the time this relationship commenced the victim was aged 14 years and it transpired that she was pregnant to another man. The defendant was charged with offences of engaging in unlawful sexual intercourse with the victim during this two year period. On 22 November 2007 following his plea of guilty, the defendant was sentenced to a term of imprisonment of three years. This sentence was suspended on his entry into a two year good behaviour bond.
The offence of being in possession of child pornography occurred in 2005 and was unrelated to the victim. As noted above, this matter came before the Court on 20 May 2008 when on the defendant’s plea of guilty he was sentenced to a suspended term of imprisonment of six months. The term of his suspended bond was two years and required him to be of good behaviour.
The breaches of bail offences occurred from 17 February to 9 March 2007. The terms of his bail required that he not have contact with the victim. His breaches of bail were dealt with by the Court on 15 May 2008 when as noted above he was released on a good behaviour bond. In the event of breach of the bond he was required to attend Court to be resentenced.
It is against the background of the above offending that the stalking offence occurred. This offence involved the same victim the subject of the unlawful sexual intercourse offences. The following findings of the Magistrate were unchallenged on this appeal:
The conduct the subject of the charge is that on two occasions on 30 December 2009, the defendant sent a message, in identical terms, to [the victim] via the social networking site Facebook. The first was sent to [the victim]’s Facebook account. Later that day, the same message was sent with a heading ‘For [The victim’s Christian name]’ was sent to the Facebook account of [the victim]’s husband.
On each occasion, the message read as follows (sic):
hi
hope you’re well.
i’m in the process of writing a book about the last 6 - 7 years of my life,
court, yourself, etc, and needed to clarify a few dates and facts etc.
i know most of it, and i have all the smses / sim cards, letters, photographs,
big footy messages etc, but perhaps need a little help with facts and dates..
for example, first time we met in person…sex first time, the days and
times..bail breaches and aid and abetting of the restraining order etc..May
2006 - all those times you came down to my house at largs..football
etc..meeting [A] and [D].
just filling in the blanks sort of thing.
you can choose not to help of course, that’s up to you.
but i’d rater have all the facts straight.
i’ve put up with utter crap written by you, the husband, etc on forums and
rubbish written in newspapers, it’s time i laid the facts out and told people
the truth.
that way they can make their own minds up.
ciao
chris
The message was first read by [the victim] when the one sent to her husband was shown to her by him. At a later time, either the same evening or the following morning, she saw and read the one sent to her own Facebook account. The evidence discloses that the messages were sent by the defendant a little more than three hours apart on the afternoon of 30 December. In each case it is established that the defendant communicated with [the victim]. I reject an argument advanced on behalf of the defendant that they were not communications "on two separate occasions". Having regard to the time separating the sending of each of the messages, even if they were read within quite a short time of each other, the evidence in my view establishes that the defendant communicated with [the victim]. on two separate occasions, albeit that the content of the communication was in the same terms on each occasion.
To assess whether the communications could reasonably be expected to cause apprehension or fear and whether the defendant intended to cause serious apprehension or fear, it was necessary for me to hear detailed evidence of the nature of the relationship between the defendant and [the victim] and all its surrounding circumstances. Considered objectively, having regard to the details of the past relationship between the defendant and [the victim], the nature of the threat implicit in the communications was that the defendant would write and publish an exposé of an illegal relationship with the victim in which intimate and sordid details would be revealed and in which [the victim] would be depicted by the defendant as a liar.
The Magistrate’s conclusions included the following:
I have concluded beyond reasonable doubt that from as early as 2003, right through to the date of the alleged offence, the defendant has been obsessed with [the victim] and, later, the impact and consequences to him of his relationship with her and that he has been unwilling or unable to allow her to get on with her life untroubled by him. He has blamed her and harboured resentment towards her for the consequences of his own actions and continues to do so. There is no doubt that there were many details of the relationship which would be gravely distressing and humiliating to [the victim]. if published. That is exactly what would be expected as a result of the unlawful relationship. When examined against this background, it is quite clear that the messages the defendant sent via Facebook on 30 December 2009 could reasonably be expected to arouse apprehension or fear in [the victim], involving as it did, a threat to publish details and to attempt to make a case that she had lied about him. This establishes the third element of the offence with which the defendant is charged.
There is also no doubt in my mind that the defendant was well aware that the messages could reasonably be expected to arouse apprehension or fear in [the victim]. His own evidence as to his intention in sending the messages was not credible. On the basis of all of the evidence the only rational inference to be drawn, to the exclusion of any other reasonable inference consistent with innocence, is that in sending these messages the intention of the defendant was to cause [the victim] serious apprehension or fear. They were not sent as a matter of courtesy. They were not sent out of a genuine desire to seek contribution to a work of non-fiction, for the sake of accuracy. They were self-indulgent missives sent for the purpose of causing [the victim] serious apprehension or fear, to punish her for what he perceived as the injustice of his predicament.
…
There remains the question of whether the offence is aggravated. During his evidence the defendant asserted that the 41 page statement made by [the victim]. in relation to the offences of unlawful sexual intercourse, contained only two pages of truth. He has asserted in his writings, and in evidence that [the victim] had told lies other than those in her statement and that others, including her husband, have told lies in relation to him. Whilst he did not specifically mention in the Facebook messages the asserted lies in the 41 page statement, it is clear after his evidence that this falls into the category of lies complained of by the defendant in the Facebook messages. That 41 page statement was prepared for the purpose of legal proceedings which were undertaken against the defendant in the District Court and which concluded on November 2007. The preparation of that statement by [the victim] constituted "conduct as a witness in legal proceedings". I find it proved beyond reasonable doubt that the Facebook messages were sent in connection with her preparation of that statement and the lies the defendant has alleged [the victim] told in it. That was one of the matters to which the defendant was referring in the Facebook messages. It is not necessary that it is the only matter to which the defendant was referring. I find that the offence committed by the defendant was aggravated by being committed in connection with the victim's conduct as a witness in legal proceedings.
I find the defendant guilty as charged of the offence of stalking and that it is an aggravated offence.
When sentencing the Magistrate remarked:
Your offence is to be considered against a background of a long history of oppressive and distressing communications directed towards her, as a result of your obsession with her and the impact and consequences to your [sic] of your earlier illegal relationship with her. You were unwilling or unable to allow her to get on with her life untroubled by you and you blamed her and harboured resentment towards her for the consequences of your own actions.
In assessing the seriousness of your offence I take into account that it did not constitute a threat to cause physical harm. Nevertheless, the potential for emotional harm is obvious and considerable and would have been obvious to you. I draw these conclusions having regard to the history of your communications with your victim and her husband and other public writings which have been referred to in the judgment of this court dated 25 November 2011.
Apart from the emotional distress of which your victim gave evidence, perhaps the most revealing evidence of the impact of the crime upon her – and her husband – is that they decided to leave South Australia and establish themselves interstate, hopefully out of your reach, in a place where the history of your relationship is of less local interest and your victim’s reputation will be less vulnerable to your conduct, which she evidently feared would not cease.
The Magistrate when sentencing commenced with the application to revoke the suspended sentence of six months imprisonment for the offence of child pornography. He considered that there were no proper grounds to excuse the breach and no special circumstances to justify reducing the sentence.[2] He considered that the revocation did not lead to consequences disproportionate to the breaching offence. On the appeal the defendant accepted that it was appropriate for the Magistrate to revoke the suspension of the sentence.
[2] In accordance with section 58(4)(a) of the Criminal Law (Sentencing) Act 1988 (SA).
The Magistrate then considered the offences of breaching bail between 17 February and 9 March 2007. One of those offences involved the defendant sending a photograph of his penis to the victim. The Magistrate sentenced the defendant to the one term of imprisonment in respect of all of the offences of breaching bail, namely a term of imprisonment of two weeks. He ordered that this sentence be served cumulatively on the sentence of six months imprisonment for possessing child pornography. On the appeal, there was no complaint about the two weeks imprisonment but it was said that the Magistrate was wrong to have ordered that the sentence be served cumulatively on the revoked suspended sentence.
The Magistrate imposed a term of imprisonment of eight months in respect of the stalking offence and ordered that that sentence be served cumulatively on the sentences of six months imprisonment and 14 days imprisonment. Again there was no complaint about the head sentence, but it was submitted that there should have been concurrency ordered or at least partial concurrency. Finally, the Magistrate fixed a non-parole period of nine months. During the course of the appeal it was contended that a shorter non-parole period should have been fixed.
As earlier mentioned, it was submitted that the overall penalty was manifestly excessive. It was said that this arose because the Magistrate had failed to give proper consideration to the sentences being concurrent or partly concurrent,[3] and that in failing to incorporate an element of concurrency, the Magistrate failed to make allowance for the consideration that the severity of a term of imprisonment increases exponentially as it increases in length. In this respect, attention was drawn to the publishing business that the defendant had started and the impact that a lengthy term of imprisonment would have on the defendant’s ability to continue this business. This business was said to be relevant to the rehabilitation prospects of the defendant and that greater weight should have been placed on this factor. This submission went further. The appellant submitted that the publishing business amounted to a “special circumstance” within the meaning of section 58(4)(a)[4] of the Sentencing Act, to reduce the term of the revoked suspended sentence, and that the Magistrate was in error in not so reducing the term.
[3] Reliance was placed on R v Copeland (No 2) (2010) 108 SASR 398.
[4] Section 58 of the Criminal Law (Sentencing) Act 1988 (SA) concerns orders that the Court may make on a breach of bonds, and by subsection (4)(a), provides:
(4)Where a court revokes the suspension of a sentence of imprisonment, the court—
(a) may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
The Magistrate, in careful sentencing remarks, addressed all relevant matters. To my mind the defendant’s stalking offence involved serious offending. The offending was aggravated as it had a connection to a witness statement provided to the police with respect to the unlawful sexual intercourse offending. Further, the offending involved the same type of conduct that was the subject of the offences of breach of bail upon which the good behaviour bond was consequent.This conduct also breached the suspended sentence good behaviour bond. In other words, the defendant was showing a complete disregard for orders of the Court. The defendant’s obsession with the victim appears to have extended over some years and the defendant’s conduct suggested a total disregard for the orders of the Court. Those orders were obtained at a time when he was suggesting contrition and remorse for his conduct and was presenting as a person who would rehabilitate. I do not consider that any error has been demonstrated in the Magistrate’s approach as to whether special circumstances existed to reduce the revoked suspended sentence. In the above circumstances, no basis has been shown to interfere with the sentences imposed by the Magistrate.

During the course of the appeal I raised with counsel for the police the appropriateness of the order for costs. In the circumstance where this defendant faced a term of immediate imprisonment of nine months, I consider the making of an order for costs to be inappropriate. Counsel did not oppose the setting aside of that order. Section 13(1)(a) of the Sentencing Act provides that a court must not require a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant are such that the defendant would be unable to comply with the order. “Pecuniary sum” is defined in section 3 of the Act to include costs. The court is to take into account whether the other penalties being imposed on the defendant are likely to deprive him or her of the means to pay a fine.[5] Section 13 has been held to apply where orders for immediate imprisonment are made. This Court in Jones, in a judgment of the Court, held that it was inappropriate in that case to impose monetary penalties for any of the offending, as orders for imprisonment were imposed with immediate effect.[6] In the within proceedings, I consider it to have been inappropriate to order the payment of prosecution costs, despite concessions by counsel below, in circumstances where the defendant was facing an immediate term of nine months imprisonment and where the Magistrate himself accepted that the defendant “had no real capacity to pay”. I consider this an appropriate case for the application of section 13 of the Sentencing Act.
[5] Nesbitt v Harries (Unreported, Supreme Court of South Australia, Mulligan J, 15 March 1991, 2770).
[6] R v Jones [2005] SASC 183, [31] (Gray, Sulan and Layton JJ).
Conclusion
This appeal is allowed for the limited purpose of setting aside the order for costs made by the Magistrate. The orders of imprisonment including the non-parole period are confirmed.