R v Amundsen

Case [2016] QCA 177

SUPREME COURT OF QUEENSLAND

CITATION:

R v Amundsen [2016] QCA 177

PARTIES:

R
v
AMUNDSEN, John Howard
(applicant)

FILE NO/S:

CA No 71 of 2016
DC No 1574 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 1 November 2014; Date of Sentence: 1 December 2014

DELIVERED ON:

24 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2016

JUDGES:

Fraser and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:

1.   The application for an extension of time is refused.

2.   The application to reinstate the abandoned appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant was convicted, after a trial, of unlawfully stalking the complainant after the end of a relationship – where the applicant was sentenced to three and a half years imprisonment, with parole eligibility set at three months after sentence and 284 days of pre-sentence custody was deemed time served under the sentence – where a restraining order for a period of five years, in respect of the complainant and her daughters, was made – where the applicant was convicted on 1 November 2014 and attempted to appeal against conviction on 3 November 2014 – where the applicant’s Form did not conform with the rules and he was informed that it would not be accepted for filing – where the applicant then sent in the correct Forms on 7 November 2014, but which were incorrectly filled out – where one of the Forms appealed against the applicant’s sentence, but he was not to be sentenced until 1 December 2014 – where the applicant was informed that the incorrectly completed documents could not be accepted – where the applicant contacted the registry on 29 June 2015 referring to his appeal lodged on 22 December 2014, but was informed that no such appeal existed – where on 4 August 2015 an application for extension of time to appeal and a notice of appeal was accepted for filing – where on 4 September 2015 the applicant filed a notice of abandonment because he was correctly told that he could not have his application for parole progressed while he had an outstanding appeal – where on 1 October 2015 the applicant sought to have his application reinstated but was told by the registry that he could not do so and that he needed to file a new application – where on 23 March 2016 the applicant filed the present application for an extension of time and for leave to appeal against sentence – where the appeal for conviction was 16 months out of time and the application for leave to appeal against sentence was 15 months out of time – whether there are good reasons for the delay and it is in the…

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Details
AGLC
R v Amundsen [2016] QCA 177
Case
[2016] QCA 177
Decision Date

CaseChat Overview and Summary

Mr Amundsen was convicted and sentenced for stalking his former partner, C, after the breakdown of their relationship. He appealed against the conviction and the sentence, both of which were out of time. The court was required to decide whether there were good reasons for the delay and whether it was in the interests of justice to grant the extension of time. The court also had to determine whether the verdict was unreasonable or insupportable having regard to the evidence, and whether the sentence was manifestly excessive.

The court found that Mr Amundsen's explanation for the delay in filing the appeal and application for leave to appeal was unsatisfactory. It also found that there was no merit in the points raised by Mr Amundsen regarding the verdict and the sentence. The court held that the interests of justice did not require the grant of an extension of time to appeal. Consequently, the application for an extension of time and the application to reinstate the abandoned appeal were both refused.

The court made the following orders: (1) the application for an extension of time is refused; and (2) the application to reinstate the abandoned appeal is refused.

Orders

Orders of the court

1. The application for an extension of time is refused.

2. The application to reinstate the abandoned appeal is refused.

Background

Background to the litigation

Mr Amundsen was charged with 19 acts directed at C over a period of nine months. Together they constituted the charge of stalking, contrary to s 359E of the Criminal Code 1899 (Qld). Of those, he was convicted of 14, summarised this way in the sentencing remarks:(a)2.9.11 – loitering near the school where C worked;(b)3.9.11 – loitering near where C was at a work conference;(c)5.9.11 – calling C from a public phone box, using a false name;(d)6.9.11 – emailing C, using a false name;(e)10.9.11 – loitering near, watching and approaching a place where C was to visit;(f)30.9.11 – committing an intimidating and harassing act by prevailing on his mother to contact C by telephone;(g)November 11 – committing an intimidating and harassing act by prevailing on his mother to telephone numbers from C’s phone records; family and friends contacted C to tell her of the calls;(h)6.1.12 – committing an intimidating and harassing act by having a private investigator follow C;(i)23.2.12 – sending C a 118 page letter;(j)May 2012 – contacting C by sending two large letters to her school and a friend;(k)3.7.12 – sending C a message by a computer system called Zoosk;(l)4.7.12 – committing an intimidating, harassing and threatening act by having Dr Wilkie contact C;(m)5.7.12 – sending C a message by MSN Messenger, using a false name; and(n)5.7.12 – committing an intimidating, harassing and threatening act by accessing C’s Bigpond and Vodaphone accounts and changing her passwords.Background to the offences When the relationship with C broke down, Mr Amundsen pursued her in an effort, so he said, to persuade her to resume the relationship. Mr Amundsen’s attitude was exemplified in this submission at sentencing:“… when my dad died I had [the ex-partner] as my protector. She took over that role. And what I have done is I have transferred that protector role onto each subsequent partner. I trusted [C] to continue that role, and, knowing that I had been bastardised throughout my childhood, I simply wanted to maintain the protection she gave me. There was never any intention to hurt [C], and if I’ve caused her fear I apologise, but it wasn’t intentional. I realised, when [C] and I had those conversations, that I was going to lose my protector and I simply reasoned that if could go and talk to her face to face I might have a chance to talk her around. I might be able to save the situation. This is not a case of some mean-spirited mongrel of a human being trying to scare her. This is a man completely wracked with fear. I’ve been bastardised through my life, and I have turned to each partner I’ve had to be that protector,”[4]…“I believe there has always been a moral obligation [to be his protector]. I’m a very conservative Christian, and I behove once that bond on all levels occurs, you’ve made a commitment. I was brought up in a very conservative Catholic Christian family where once those bonds on all levels occur it is a lifetime commitment. I can’t be blamed for my faith. I can’t be blamed for my beliefs. The way my conservative parents brought me up was that I am bound to follow my values, and no man should be imprisoned for following his religious beliefs.”[5][4]Sentencing transcript T 1-30 lines 25-34; T 1-41 lines 6-14. Emphasis added. As to the sentence in bold, Mr Amundsen said it “precisely and accurately reveals [his] real intentions as nothing more than conversational and conciliatory”: Outline No. 4 page 31.[5]Sentencing transcript T 1-31 lines 1-7.

Evidence

Evidence Before The Court

Mr Amundsen advanced a number of grounds contending that the verdict was suspect and a retrial was necessary. I shall deal with those grounds, identifying the outline that contains them, in whatever iteration.Evidence identifying Mr Amundsen This ground concerned criticism of the reliability of identification evidence at the trial.[24] At the trial evidence was given by Mr Tweedie and C’s father, identifying Mr Amundsen on one of the occasions charged, in a particular street. The descriptions were of a man of stocky build and bald. Mr Amundsen contended, then and before this Court, that: he was thin, there were many bald men, and the view was obscured by trees. All of those matters were raised at trial and were matters for the jury to decide.[24]Outline No. 2, pages 3, 5, 6; No. 5 pages 15, 18; Letter 7 January 2016, pages 2-3. Before this Court he sought to tender new evidence, namely photos to show the trees. The proposed tender was refused because it transpired there were no photos yet, and in any event they could not show the state of the trees five years ago. There is no merit in this ground.Accessing the email account This ground related to the last charged act, on 5 July 2012, that of accessing C’s Bigpond and Vodaphone accounts and changing her passwords. Mr Amundsen contended that the evidence from a forensic examiner and two police officers established that he could not have accessed the accounts.[25] However, the contention misunderstood the case run at trial. It was a circumstantial case based on the contention that it could be inferred from the whole of the evidence concerning what Mr Amundsen did, that Mr Amundsen accessed the accounts even though there was no direct evidence of it.[26] The evidence referred to by Mr Amundsen was that the forensic examiner and the investigating officers could not ascertain, from his computers, that the accounts had been accessed or the passwords changed. The Crown case accepted that to be so. The jury clearly drew the inference that it had to be Mr Amundsen who did it.[25]Outline No. 2, pages 3-4, 22-27; No. 4 page 16; No. 5 pages 16-17; Letter 7 January 2016, page 2.[26]Summing up page 26 line 46 to page 27 line 5. There is no merit in this ground.Misdirections to the jury Mr Amundsen contended that the jury was misdirected in two ways. First, the jury were misdirected as to the effect of the decision in R v Davies,[27] in this passage of the summing up:[28]“… there may be circumstances where you may not be aware of it at the time, but you become aware of it. That would be within the offence of unlawful stalking, and I am telling you that even if you’re not aware at the initial point in time of the conduct, and - but you later become aware, our law is you could be - you could, as a reasonable person, be affected by the - the conduct in the way the legislation provides.”[27][2004] QDC 279.[28]Summing up page 14 lines 35-40. Secondly, when the learned sentencing judge misdirected the jury after the opening addresses when he said that of the factors in s 359D of the Criminal Code, the only one he could think that they may be concerned with was s 359D(e). The relevant passage is:[29]“The other matter is, you did ask me for boundaries, and it seems to me from hearing the two openings that section 359D should be mentioned to you, which says: “Unlawful stalking does not include the following acts” And the only one that I could see that you need to think about that might arise as this case progresses is "Reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving”.”[29]Trial transcript T 1-9, lines 38-45.

Decision

Reasons for decision

After preparing the above reasons, Mr Amundsen filed another “outline” in the registry. That document was 36 pages long. No leave to file a further outline was sought or granted. Its length and content would be contrary to the practice direction governing the preparation of outlines in this Court. In the circumstances the Court will not receive it.Conclusion For the reasons given above the explanation of the delay in filing the appeal, and application for leave to appeal, is unsatisfactory, and there is no merit in the points raised by Mr Amundsen. I do not consider that the interests of justice require the grant of an extension of time to appeal. I would propose the following orders:1.The application for an extension of time is refused.2.The application to reinstate the abandoned appeal is refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.