R v Kav - [2020] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAV [2020] QCA 28

PARTIES:

R
v
KAV
(applicant)

FILE NO/S:

CA No 242 of 2019
DC No 186 of 2019
DC No 216 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay – Date of Sentence: 1 August 2019 (Richards DCJ)

DELIVERED ON:

Date of Orders: 14 February 2020
Date of Publication of Reasons: 28 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2020

JUDGES:

Morrison and McMurdo JJA and Boddice J

ORDERS:

Date of Orders: 14 February 2020

1.     The application for leave to appeal is allowed.

2.     The appeal is allowed.

3.     The sentence imposed on 1 August 2019 is set aside to the extent that it set a parole release date at 30 April 2020.

4.     The appellant be released on parole from 14 February 2020.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of unlawful stalking and two counts of unlawful stalking, contravening a Court order – where each count was a domestic violence offence – where the applicant also pleaded guilty to summary offences – where the applicant was sentenced to imprisonment for three years in respect of each count of unlawful stalking, contravening a Court order and a concurrent period of one year’s imprisonment for the remaining count of unlawful stalking – where the applicant was convicted and not further punished for the summary charges – where the sentencing Judge set the parole release date on 30 April 2020 – where the applicant seeks leave to appeal the sentence on the grounds that the sentencing Judge erred in failing to recognise that a term of imprisonment was a penalty of last resort and that the sentence was manifestly excessive – where the applicant’s conduct occurred over a protracted period – where the applicant breached protection orders – where 20 months elapsed between the end of the conduct and the sentence and the applicant had committed no further offences – whether the sentence imposed was manifestly excessive

COUNSEL:

J Crawford for the applicant
M P Le Grand for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: On 1 August 2019, the applicant pleaded guilty to one count of unlawful stalking and two counts of unlawful stalking, contravening a Court order. Each count was a domestic violence offence. The applicant also pleaded guilty to a number of summary offences.
The applicant was sentenced to imprisonment for three years in respect of each count of unlawful stalking, contravening a Court order and a concurrent period of one year’s imprisonment in respect of the remaining count of unlawful stalking. The applicant was convicted and not further punished in respect of each of the summary charges.
After declaring one day spent in pre-sentence custody as time already served, the sentencing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kav

Details

AGLC: R v Kav [2020] QCA 28
Case: [2020] QCA 28
Decision Date: 28 February 2020

CaseChat Overview and Summary

In the case of R v Kav, the applicant, who had pleaded guilty to multiple counts of unlawful stalking and breaching court orders, sought leave to appeal against the sentence imposed. The applicant, a mother of two young children, had engaged in a protracted and persistent course of stalking behaviour towards her ex-partner over a period of 13 months. This conduct involved over 4,800 instances of contact, including threats and false allegations, despite the existence of domestic violence protection orders. The sentencing Judge had imposed a sentence of three years' imprisonment for each stalking count, with a concurrent sentence of one year for the remaining count, and set a parole release date of 30 April 2020.

The legal issues before the court included whether the sentencing Judge erred in failing to recognise that imprisonment was a penalty of last resort and whether the sentence was manifestly excessive. The court considered the seriousness of the applicant's conduct, the breach of court orders, and the lack of any further offending in the two years between the end of the conduct and the sentence. The court also examined relevant authorities that provided a range of custodial sentences for stalking offences.

The court found that the sentencing Judge did not err in imposing a custodial sentence, as the applicant's conduct was particularly serious and persistent, breaching domestic violence orders and conditions of bail. The court also concluded that the sentence was not manifestly excessive, given the persistence and seriousness of the applicant's conduct over the extended period. The court noted that while comparable authorities suggested shorter custodial sentences, those cases did not involve the same level of persistent conduct, repeated breaches of orders, or the aggravating factor of each offence being a domestic violence offence.

In conclusion, the court allowed the application for leave to appeal and set aside the sentence to the extent that it set a parole release date of 30 April 2020. The appellant was ordered to be released on parole from 14 February 2020.

Orders

Orders of the court

Date of Orders: 14 February 2020

1. The application for leave to appeal is allowed.

2. The appeal is allowed.

3. The sentence imposed on 1 August 2019 is set aside to the extent that it set a parole release date at 30 April 2020.

4. The appellant be released on parole from 14 February 2020.

Background

Background to the litigation

These are our reasons for joining in those orders.Background The applicant was born on 14 May 1981. She was aged 35 and 36 at the time of the commission of the offences. She was aged 38 at the date of sentence. The applicant is the mother of a teenage daughter and a further daughter, aged less than three months at the time of sentence. The applicant has a past criminal history. It contains an offence of contravention of a domestic violence order, as well as other offences. All of those offences were committed during or around the period the subject of the offences to which the applicant pleaded guilty on 1 August 2019.Offences The offending, the subject of the stalking counts, occurred over three periods between 31 August 2016 and 1 October 2017. Whilst there were three separate counts on the indictment, it was accepted at sentence that the applicant’s conduct represented a continuing course of conduct. The complainant in each stalking count was the applicant’s ex-partner. Their relationship ended at the time of commencement of the stalking. The applicant’s stalking persisted despite a temporary protection order being issued on 14 October 2016 (some six weeks after the commencement of the first stalking period) and a further protection order issued on 16 March 2017 (some six months after the commencement of the first stalking period). The applicant’s conduct involved protracted, persistent stalking including repeatedly contacting the complainant by text message, phone calls and Facebook Messenger. There were 4,800 such contacts over the entire stalking period. During the stalking period, the applicant falsely alleged that she was pregnant to the complainant; threatened the complainant; made a false complaint to police which resulted in the complainant being spoken to by police, who initially applied for a temporary protection order against the complainant in favour of the applicant. The applicant also egged the complainant’s motor vehicle and home on more than one occasion, and damaged the motor vehicle’s paintwork and removed a windscreen wiper. When the complainant moved house, the applicant sought out the complainant’s new location and persisted with the stalking thereafter.Sentence hearing The sentencing Judge found that the applicant’s offending conduct involved relentless stalking of the male complainant, in breach of protection orders. The breaches included contacting the complainant on 2,496 occasions by telephone and the sending of 61 text messages after the first protection order. Notwithstanding the applicant being charged with a breach of that domestic violence order and pleading guilty to that offence on 21 February 2017, the applicant continued to leave messages for the complainant. She also sent messages to his new partner accusing the complainant of being violent, of being a paedophile, of sleeping with other women and of stalking the applicant. When the new partner did not respond, the applicant became abusive to her, threatening to ruin her career and to expose her as the stalker. There were some 687 messages to that person.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant’s stalking conduct was particularly serious, involving over 4,800 telephone calls and texts over an extended period of 13 months. A number of threats were issued to the complainant. The applicant physically approached the complainant’s home in breach of domestic violence protection orders and bail conditions. The applicant’s offending conduct also was directed towards the applicant’s new partner and his family. The applicant persisted in that conduct, notwithstanding being interviewed by police and being dealt with for breach of a domestic violence order.Consideration The sentencing Judge rightly observed that the applicant’s conduct involved a serious example of stalking. The applicant engaged in persistent conduct over a 13 month period, much of which was committed in breach of domestic violence orders and conditions of her bail. The conduct persisted notwithstanding the applicant being dealt with for breach of a domestic violence order during the offending period. Whilst the applicant had no criminal history at the commencement of the stalking period, and there were personality and associated circumstances which provided context to her persistent behaviour, her conduct in breach of Court orders was so serious as to justify sentences of imprisonment, including a period of actual imprisonment. Against that background, there is no basis to conclude that the failure of the sentencing Judge to specifically refer to a sentence of imprisonment as a sentence of last resort constituted an error in the sentencing discretion. The imposition of a head sentence of three years’ imprisonment was also not manifestly excessive. Whilst comparable authorities referred to at sentence and on appeal[1] contained yardsticks of 18 months to two and a half years’ imprisonment by offenders with more significant past criminal history and who engaged in, on occasions, more serious conduct, none of those authorities involved such persistent conduct over a protracted period, repeatedly breaching orders; and bail; and after being convicted of breaching a domestic violence order. Further, apart from SCM, none involved the aggravating factor of each offence being a domestic violence offence.[2][1]R v Macdonald [2008] QCA 384; R v Baker [2011] QCA 33; R v Conde [2016] 1 Qd R 562; R v Manning [2015] QCA 241; R v SCM [2016] QCA 175; R v Coutts [2016] QCA 206; R v Oliver [2018] QCA 348; R v Tarasiuk [2019] QCA 165.[2]Penalties and Sentences Act 1992, s 9(10A). Whilst SCM did have that aggravating factor, SCM involved stalking over a far shorter period, by an offender with diagnosed psychiatric conditions. Macdonald did involve conduct in contravention of Court orders. However, the stalking period was less than four months. Coutts and Oliver also involved stalking over a far shorter period, with the stalking ceasing upon police involvement. Tarasiuk, whilst involving stalking over a protracted period, involved one count without the circumstance of aggravation in contravention of a Court order, and without the offence being a domestic violence offence.

CITATION:	R v KAV [2020] QCA 28
PARTIES:	R v KAV (applicant)
FILE NO/S:	CA No 242 of 2019 DC No 186 of 2019 DC No 216 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Mackay – Date of Sentence: 1 August 2019 (Richards DCJ)
DELIVERED ON:	Date of Orders: 14 February 2020 Date of Publication of Reasons: 28 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	14 February 2020
JUDGES:	Morrison and McMurdo JJA and Boddice J
ORDERS:	Date of Orders: 14 February 2020 1. The application for leave to appeal is allowed. 2. The appeal is allowed. 3. The sentence imposed on 1 August 2019 is set aside to the extent that it set a parole release date at 30 April 2020. 4. The appellant be released on parole from 14 February 2020.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of unlawful stalking and two counts of unlawful stalking, contravening a Court order – where each count was a domestic violence offence – where the applicant also pleaded guilty to summary offences – where the applicant was sentenced to imprisonment for three years in respect of each count of unlawful stalking, contravening a Court order and a concurrent period of one year’s imprisonment for the remaining count of unlawful stalking – where the applicant was convicted and not further punished for the summary charges – where the sentencing Judge set the parole release date on 30 April 2020 – where the applicant seeks leave to appeal the sentence on the grounds that the sentencing Judge erred in failing to recognise that a term of imprisonment was a penalty of last resort and that the sentence was manifestly excessive – where the applicant’s conduct occurred over a protracted period – where the applicant breached protection orders – where 20 months elapsed between the end of the conduct and the sentence and the applicant had committed no further offences – whether the sentence imposed was manifestly excessive
COUNSEL:	J Crawford for the applicant M P Le Grand for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent