Police v Leon Peter Flynn No. Scgrg-97-488 Judgment No. 6140 Number of Pages 4 Criminal Law Particular Offences Stalking

[1997] SASC 6140

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DUGGAN, J

Criminal law - particular offences - offences against the person - respondent charged with unlawful stalking (Criminal Law Consolidation Act s19AA) - discussion of elements of offence - undesirability of including a number of other offences as particulars of stalking instead of charging as individual offences.

Criminal law - jurisdiction, practice and procedure - sentence - Crown appeal against sentence of 12 months' imprisonment and non-parole period of 7 months for stalking - first offender - serious case of conduct warranting an immediate custodial sentence but the sentence passed was not manifestly inadequate.

ADELAIDE, 22 April 1997 (hearing), 9 May 1997 (decision)

#DATE 9:5:1997

#ADD 4:6:1997

Appellant:

Counsel - Ms S McDonald

Solicitors - DPP (SA)

Respondent:

Counsel - Mr Julian Kelly

Solicitor - Ms Janet Arkinstall

Order: appeal dismissed.

DUGGAN J

1. This appeal has been brought by the prosecution against the sentence imposed on the respondent for an offence of unlawful stalking contrary to s19AA of the Criminal Law Consolidation Act 1935. It was alleged that the appellant embarked on a campaign to intimidate the victim and behave in an offensive manner towards her over a period which lasted from 7th June 1996 to 22nd October 1996.

2. The victim is a woman with whom the respondent had a relationship which terminated at about the time the incidents began. They had known each other for about seven years and had lived in a de facto relationship for four years.

3. The behaviour complained of consisted of abusive telephone calls, damage to the victim's property, confrontations during which the respondent shouted abuse at the victim, threats and physical violence. The specific allegations are set out in detail in the learned magistrate's remarks. The respondent is a first offender. He has a history of episodes of depression for which he has received psychiatric treatment.

4. The respondent was sentenced to imprisonment for 12 months and a non-parole period of seven months was ordered. It was argued by the appellant that the sentence was manifestly excessive.

5. The offence of stalking was created by an amendment to the Criminal LawConsolidation Act which came into effect on 1st June 1994. To my knowledge this is the first occasion on which this court has been called upon to consider the nature of the offence and the matters relevant to penalty. I mention this because I have reached the conclusion that, although the laying of the charge was appropriate in the circumstances of the present case, the particulars relied upon by the prosecution disclosed, in some instances, a misunderstanding of the nature of the new offence.

6. In my view the offence was used in the present case as a vehicle to bring before the Magistrates Court conduct which should have been the subject of charges for separate substantive offences. It would appear that these charges were laid originally, but that there followed a compromise between the prosecution and the defence which led to the dropping of charges for various offences allegedly committed against the victim on the basis that the facts upon which those charges were laid would be incorporated into the particulars relied upon for the offence of unlawful stalking. One of the dangers in this practice is the inclusion, in the particulars of the general charge, of events to which the offence of stalking does not apply.

7. Section 19AA provides as follows: "(1) A person stalks another if - (a) on at least two separate occasions, the person - (i) follows the other person; or (ii) loiters outside the place of residence of the other person or some other place frequented by the other person; or (iii) enters or interferes with property in the possession of theother person; or (iv) gives offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person; or (v) keeps the other person under surveillance; or (vi) acts in any other way that could reasonably be expected to arouse the other person's apprehension or fear; and

(b) the person - (i) intends to cause serious physical or mental harm to the other person or a third person; or (ii) intends to cause serious apprehension or fear.

(2) A person who stalks another is guilty of an offence. Penalty: (a) if - (i) the offender's conduct contravened an injunction or an order imposed by a court (either under a law of the State or the Commonwealth); or (ii) the offender was, on any occasion to which the charge relates, in possession of an offensive weapon, imprisonment for not more than 5 years; (b) in any other case - imprisonment for not more than 3 years.

(3) A person who is charged with stalking is (subject to any exclusion in the instrument of charge) to be taken to have been charged in the alternative with offensive behaviour so that if the court is not satisfied that the charge of stalking has been established but is satisfied that the charge of offensive behaviour has been established, the court may convict the person of offensive behaviour.

(4) A person who has been acquitted or convicted on a charge of stalking may not be convicted of another offence arising out of the same set of circumstances and involving a physical element that is common to that charge.

(5) A person who has been acquitted or convicted on a charge of an offence other than stalking may not be convicted of stalking if the charge of stalking arises out of the same set of circumstances and involves a physical element that is common to the charge of that other offence." 8. The actus reus of the offence contemplates continuing conduct involving harassment or offensive behaviour towards a particular person. The individual acts need not amount to the commission of an offence in themselves, although the section recognises that a charge of stalking may arise out of the same set of circumstances as another offence. It may also involve a physical element which is common to the charge of another offence. It is for this reason that sub-sections (4) and (5) guard against double jeopardy.

9. In the present case what appears to be the most serious individual incident relied upon by the prosecution before the learned magistrate was an occasion when the victim intimated to the respondent that she intended to terminate the relationship and the respondent became abusive towards her, assaulted her and held a knife to her throat. It was revealed at the hearing of the appeal that this incident took place in the victim's home after the appellant had stayed there overnight with her consent. The incidents occurred before he left the house. Although constituting an assault, it was not conduct which could be described as stalking within the meaning of that term as used in the section.

10. But there is a further difficulty about this incident being used as an ingredient of the offence of unlawful stalking. At the hearing of the appeal it became evident that the incident did not take place on 13th June 1996 as originally intimated to the magistrate, but on 6th June 1996. This was outside the period of unlawful stalking relied upon by the prosecution. The result is that the learned magistrate was led into relying on this incident as an important circumstance of aggravation when it was not open for her to do so. The appellant was charged with common assault in relation to this incident but the charge was withdrawn because of the laying of the unlawful stalking charge. There were other offences with which the respondent had been charged which were withdrawn when he pleaded guilty to the charge of unlawful stalking. They included common assault, threatening life, larceny and failing to comply with a restraining order.

11. It is apparent from the wording of s19AA that the offence of unlawful stalking was not meant to be a repository for a collection of sundry offences against other provisions of the criminal law. In this respect I agree with the observation of Mr Goode, the Senior Legal Officer in the South Australian Attorney-General's office (Goode "Stalking: Crime of the Nineties" (1995) 19 CLJ 21 at 26) that: "Many stalkers would, in all probability, commit other offences, perhaps serious offences in the course of conduct. The stalking offence should be used to fill a gap in the law and not simply to load up the indictment with another offence, perhaps to be used as a bargaining chip in plea negotiations." 12. I do not suggest that the words "load up" should be used in any pejorative sense in relation to the conduct of the prosecuting authorities in the present case, but it is clear on the material before me that the dropping of the charges for the other offences and the inclusion of the facts upon which they were based as particulars of the offence of unlawful stalking, was the result of a compromise between the defence and the prosecution. The result was most unsatisfactory in that it led to factual disputes over the particulars and placed the magistrate in the invidious position of being asked to treat, as aggravating factors, incidents which were offences in their own right and carried their own maximum penalties.

13. I am not suggesting that there will never be an occasion when it is appropriate to include as particulars in a stalking charge a set of circumstances which happens incidentally to constitute the commission of another offence. This may arise where the seriousness of the conduct lies in the aspect of stalking and not the commission of another offence. But the adoption of this course was quite inappropriate in the present case where a series of substantive offences were abandoned in order that the incidents be included as particulars in the stalking offence.

14. I return then to the appeal against sentence. Counsel for the appellant quite properly conceded that the revelation as to the date of the knife incident threw a different light on the appeal, although she did not suggest that it was fatal to her assertion that the penalty was manifestly inadequate.

15. It is a matter of some concern that the learned magistrate unwittingly relied upon the knife incident as an aggravating factor. Nevertheless, even when it is set aside, there remains a serious course of conduct over a lengthy period during part of which a restraint order was in operation against the respondent. The course of conduct embarked upon was of a highly abusive nature. It was constant and calculated to put the victim in fear. In my view it warranted an immediate custodial sentence, despite the fact that the respondent was a first offender. Nevertheless I have not been persuaded that the sentence was manifestly inadequate. Furthermore the special considerations relevant to a prosecution appeal against sentence (Everett v R (1994) 181 CLR
295) are particularly relevant in the present case in that the respondent has served the greater part of the non-parole period and is due for release in about four weeks.

16. In the light of all these circumstances the appeal will be dismissed.