R v Gibbon

[2008] NSWDC 227

CITATION:	R v GIBBON [2008] NSWDC 227
HEARING DATE(S):	17/09/08
JUDGMENT DATE:	17 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Murrell SC DCJ at 18
CATCHWORDS:	Appeal against conviction - Mens rea for breach of apprehended domestic violence order
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act s 10
PARTIES:	DPP B Gibbon
FILE NUMBER(S):	2008/00007126
SOLICITORS:	Ms Coyle Mr Jones

JUDGMENT

1 The appellant appeals against a conviction imposed by the Waverley Local Court on 28 April 2008 for the offence that, between 12.15pm and 12.50pm on 26 December 2007 at Maroubra, he knowingly contravened a prohibition order restriction specified in apprehend domestic violence order (ADVO), contrary to s 562ZG(1) of the Crime Act 1900 as it then was.

2 Pursuant to an ADVO protecting F, for a period of two years from 18 May 2006:

“(a) The defendant must not engage in conduct that intimidates the protected person(s) or any other person having a domestic relationship with the protected person(s) and;
… (1) The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s).”

3 F and the appellant resided in a de facto relationship for a period of eighteen years, terminating approximately six years before 26 December 2007. There were three children of the relationship, aged fifteen, eleven and nine years. The appellant did not have regular contact with the children, except for the oldest child, with whom he had frequent contact. Over the Christmas period, the appellant had not seen the children.

4 On Boxing Day 2007, F was at home with the couple’s three children. Her home was owned by the appellant. It was the subject of Family Court proceedings. F was preparing to go out. She was running late

5 The appellant telephoned F on five occasions. The first occasion was at 12.18pm. The last was at 12.22pm. The length of the calls ranged from 25 seconds to 64 seconds. The first call was the longest call. The appellant asked for access to the children on that day. F rejected the request in no uncertain terms.

6 There is a dispute about whether the appellant raised his voice in the course of the telephone conversations, whether he swore at F and, in particular, whether he called her “a stupid fucking bitch”.

7 The Local Court Magistrate, who had the benefit of seeing both F and the appellant give evidence, made the following observations:

8 “Ms F’s demeanour was such that her emotions were consistent with the evidence that she was giving in court. The conversations which she spoke of have a ring of truth about them. I am satisfied that she was a truthful witness and therefore I am satisfied that Mr Gibbon did in fact, apart from raising his voice, also say to Ms F, among other things, that “you’re a stupid fucking bitch”.

9 From the perspective of both parties, the conversation was an emotional one. Both parties were emotional about the appellant having access to the children. The parties had been in a long relationship. They were undergoing Family Court proceedings, including mediation. I have no doubt that the appellant raised his voice. It is consistent with the context of the conversation that he swore at F in the manner alleged. I accept the Magistrate’s findings about those matters without hesitation.

10 I note that, in the period from May 2006, there had been a number of arguments between the parties concerning money and access to the children. Each of the first four telephone calls was terminated when F hung up, having made it quite clear that she was busy, she had no intention of granting him access to the children on that day, and she did not wish to say anything any further. No doubt, the appellant was somewhat irate about the fact that F and the children were residing in his house, which was the subject of property proceedings in the Family Court.

11 F was still upset more than an hour after the calls. When police spoke to her, she was crying and her eyes were bloodshot.

12 I accept the appellant’s submission that, in making the calls, he was not intending to upset, let alone harass or intimidate F. Rather, his intention was to obtain access to his children.

13 The legal issue is whether the necessary mens rea is an intention to cause the complainant to feel harassment or intimidation, or whether it is simply an intention to engage in the conduct that, in fact, causes the complainant to feel harassed or intimidated.

14 The legislation provides no specific assistance in this regard. However, the purpose of the legislation is to enable the court to impose orders to protect persons. The means of protection is the prohibition of particular conduct. The ultimate purpose of the legislation is to prevent victims feeling harassed and intimidated, but that is not the way in which the legislation is structured. The legislation is structured so as to prevent conduct that may result in feelings of harassment or intimidation. Although the legislation is unclear in relation to the requisite mens rea, I have formed the view that the necessary mens reas is an intention to engage in the relevant conduct, knowing that there is an order.

15 There is no doubt that the appellant intentionally engaged in the conduct of making repeated calls to F. There is no doubt that she hung upon four occasions and, by that action her words, made it quite plain that she did not wish to receive any further calls. In those circumstances, the repeated making of emotional calls to F constituted harassment. The offence is made out.

16 The Crown concedes that the conduct was at the lower end of objective seriousness and F’s distress was temporary. I accept that the appellant was not motivated by a desire to upset F. Rather, he wished to obtain access to his children over the Christmas period. The emotions of both parties were running high because it was Christmas and because they were engaged in stressful Family Court proceedings.

17 The appellant is a professional person of prior and subsequent good character. He is fifty-nine years old. There is no suggestion of other harassing conduct, either before or since this episode. Because of the appellant’s character and antecedents and the extenuating circumstances in which the offence was committed, it is appropriate to proceed under s 10 of the Crimes (Sentencing Procedure) Act.

18 Pursuant to s 10 of the Crimes (Sentencing Procedure) Act I find the offence proved, but without proceeding to conviction. I make an order directing that the charge be dismissed.