R v Kyriakou

[1994] QCA 361

IN THE COURT OF APPEAL [1994] QCA 361

SUPREME COURT OF QUEENSLAND

C.A. No. 216 of 1994

Brisbane

[R v. Kyriakou]

T H E Q U E E N
v.
ERROL KYRIAKOU

Applicant

The Chief Justice
Davies JA

Ambrose J

Judgment delivered : 16/09/1994
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL ALLOWED. APPEAL ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE. WITH THE CONSENT OF THE APPLICANT ORDER THAT THE APPLICANT BE GRANTED PROBATION FOR A PERIOD OF TWO YEARS ON THE USUAL TERMS SUBJECT TO THE FOLLOWING

S PECIAL CONDITION -

THAT HE RECEIVE SUCH MEDICAL, PSYCHOLOGICAL, PSYCHIATRIC AND OTHER EXAMINATION, TREATMENT, COUNSELLING AND ADVICE WITH A VIEW TO HIS ACQUISITION OF THE "SOCIAL SKILLS" TO WHICH DR FISHER AND MR R DUTTON REFERRED IN THEIR RESPECTIVE REPORTS OF 17 MAY 1994 AND 18 MAY 1994 AS MAY REASONABLY BE REQUIRED BY HIS COMMUNITY

CORRECTIONA L OFFICER.

ORDER BY CONSENT THAT THE APPLICANT PAY FORTHWITH TO THE REGISTRAR OF THE DISTRICT COURT AT MT ISA BY WAY OF COMPENSATION FOR THE COMPLAINANT, CHERYL JOYCE SCHMIDTKE, THE SUM OF $1,500.

CATCHWORDS:CRIMINAL LAW - sentence - unlawful stalking - s.359A Criminal Code - four occasions of contact with the complainant - psychiatric and psychological reports indicated a lack of "social skills" - s.9 Penalties and Sentences Act (1992) - no previous convictions - lack of "social skills" gave no cause to endanger others - no subsequent additional contact (for period of 6 months) made - imprisonment had not become inevitable.

Counsel:  Mr J Griffin Q.C. with him Mr M Donnelly for the

applicant

Mr D L Bullock for the respondent

Solicitors:  Conroy & Conroy for the applicant
Director of Prosecutions for the respondent

Hearing Date:2 August 1994

REASONS FOR JUDGMENT OF THE COURT

Judgment Delivered: 16/09/1994
This is an application for leave to appeal against a sentence of six months imprisonment imposed upon the applicant when he was convicted in the District Court, Mt Isa, of an offence of unlawful stalking of a woman in Mt Isa between 23 November 1993 and 7 December 1993.
The offence of unlawful stalking is constituted by an amendment to the Criminal Code which was proclaimed on 23 November 1993 and is defined in s.359A.

The facts of the case may be shortly stated:

The applicant at the material time was a 35 year old

bachelor residing in Mt Isa where he was employed to collect
garbage.

The complainant was a middle aged lady who resided in a dwelling house in Mt Isa. She conducted a hairdressing salon in another part of Mt Isa. She had a mature daughter who worked with her in that hairdressing salon.

The applicant first approached the complainant at her hairdressing salon about 4.30 p.m. on 23 November 1993. He sought to make contact with her through her employee and when she eventually spoke to him he told her that he wanted to talk to her in private. She told him that she would be finished work within 10 minutes.

Just after 5 p.m. on that day, the applicant told the complainant that he wanted to talk to her as a mother. It is unnecessary to attempt to analyse precisely what the applicant said to the complainant. Suffice it to say that to the extent that it was comprehensible at all, what he said was largely nonsensical.

Eventually towards the end of the conversation, there was a discussion about the complainant cutting the applicant's hair and she told him that she would cut his hair if he had an appointment. She was with her employee at the time of their conversation.

The second contact between the applicant and the complainant occurred one Sunday morning at about 7 a.m. She was doing some housework and hearing a knock on the door she investigated to find that the applicant was standing at a kitchen doorway which opened into a garage. He told her that he wanted to talk to her as a mother and at one stage commenced to "dance around in front of her". Not surprisingly, the complainant was alarmed at this extraordinary behaviour and she gave evidence that she was afraid; she went to the front yard of her house and when she came back she found the applicant "hiding behind her car". She had a discussion with him about some complaints she had concerning her arm and later spoke to police officers. She spent that Sunday night with friends and returned at about 6.45 a.m. on the following Monday. At that time the applicant was apparently working at collecting garbage and he came to speak to her at her kitchen door. At this stage, the complainant asked him to leave her alone and he persisted in talking to her "about her body". He eventually ran out to the garbage truck and drove off.

Later the same day, which was 6 December 1993, at about 2.30 p.m., the applicant again came to the hairdressing salon of the complainant and commenced to talk to her in a strange and garbled fashion. He told her that he "wanted to help fix her body". The complainant again told him to leave her alone and he again "danced around in front of her and her daughter", during a rambling, nonsensical sort of conversation in which the applicant touched on questions of maintaining bodily health in which her arm condition was mentioned. The complainant said a dog had previously bitten her pointing the mark out to him. The applicant then reached over as if to touch her and the complainant told him to leave her alone. By this time the complainant was very concerned for her safety. To a great extent it would seem that her concern was based upon the strange behaviour of the applicant who, as well as talking in nonsensical terms, was also engaging in physical behaviour which she described as being in the nature of dancing or sparring. By this time, obviously the complainant was both irritated and alarmed by the uninvited attention she was being given by the applicant. On that occasion her daughter was present and eventually she went to a telephone and contacted the police. The applicant was still at the hairdressing salon behaving in his bizarre manner when police officers arrived and arrested him.

He was arrested on 6 December 1993 and upon committal was granted bail, one of the conditions being that he not approach or have anything to do with the complainant. Bail was apparently granted to him the day following his arrest.

The matter came on for trial before the District Court in Mt Isa on 11 May 1994 - about six months after the last of the four contacts which the applicant made with the complainant.

It emerged clearly before the learned sentencing judge that the applicant had refrained from making any contact whatever with the complainant during that period of six months.

As part of the evidence for the Crown, a video record of an interview that took place between investigating police officers and the applicant was tendered. This record highlights some rather unusual personality traits of the applicant. The applicant denied any intention of hurting or causing fear to the complainant and launched into an explanation of his conduct which was not merely quite unresponsive to the questions put to him by the investigating police officers, but also barely comprehensible. The applicant seems to have spoken rapidly and non-responsively in a most garbled fashion, endeavouring no doubt to state in a coherent fashion what had motivated him to seek out the complainant and discuss with her whatever it was on which he wished to offer advice or seek assistance.
The applicant was convicted by the jury of the offence, charged and was remanded for sentence on bail for several days to enable psychiatric and/or medical evidence to be obtained to assist in determining what was the appropriate penalty to be imposed.
Not surprisingly, counsel for the applicant asked that he be remanded for sentence to enable a psychiatric report to be prepared. The learned sentencing judge acceded to this request and eventually the matter was listed for sentence on 18 May 1994 - about six days after conviction.

The applicant was given bail upon his undertaking to appear for sentence when notified.

The applicant was examined by a psychologist, Mr Dutton and also by a psychiatrist, Dr Fisher.

The psychiatrist expressed the view that the applicant had no "formal psychiatric disorder" but rather had "an unusual and involved way of communicating with others but this is not in and of itself sufficient to diagnose mental disorder". The psychiatric opinion was expressed that the applicant needed training in "social skills". According to the psychiatrist the applicant "seemed to genuinely believe his intentions were good and no malevolence was conveyed".
He said that on his examination he concluded that the applicant had no mental disorder and was not a danger by reason of his intellectual make-up to himself or to anybody else.

He observed in his report:

"Indeed he appears to have learnt well from his experience in this matter. He reports that after an initial period of changing runs on the refuse collection rounds he is now back on a run which passes the woman's house but has had no further contact with her."

According to the psychological report the applicant stated that he had first come into contact with the complainant in

1986. In the course of his report, the psychologist said:

"From the interviews conducted by this writer it would appear that Mr Kyriakou is somewhat unusual in his responses and perceptions. He states that he has had many problems with women who were 'after him'. It would appear that he has not had what could be termed a 'normal' relationship with a woman. He does report sexual relationships which appear to be ones of convenience rather than any deep affection."

He informed the psychologist that he thought the complainant wanted to have a sexual relationship with him but that he was not interested. He claimed that his only interest was to have her intercede in a problem he was having with another woman. He stated that he saw that the complainant's arm was bandaged and that he had developed a longstanding interest in things medical. He stated that he "knew more than any doctor".

The psychologist expressed the view that the applicant's behaviour was that of a "socially inept young man" although he was nearly 35 years old at the time of his interview. He noted that the applicant had a good work history and no prior criminal history at all. He said he presented as a somewhat anxious person and appeared to have "an unusual perception of" some events.

The psychologist expressed the opinion that the applicant might benefit from community based supervision and that, although no social skills training program was available in the Mt Isa area, regular contact with a community correctional officer might assist the applicant.

Both the psychiatric and psychological reports were placed before the sentencing judge and it seems clear that initially he gave some consideration to imposing a non-custodial sentence. He also indicated that he contemplated making an order that the applicant pay to the complainant the sum of $1,500 by way of "compensation". In the course of the hearing of the application for leave to appeal against sentence, counsel for the applicant made it quite clear that the applicant was prepared to pay the $1,500 mentioned by the sentencing judge, whatever may have been the power of that judge to make such an order as part of a non-custodial sentence. Reservations were expressed as to whether, on the evidence, an offender might be ordered to pay money to a complainant to compensate her for the irritation and/or fear which his conduct had engendered. However, no point was taken about this matter and counsel for the applicant indicated that he was instructed to consent to an order that the applicant make such a payment.

In the course of the hearing on sentence, the learned sentencing judge formed the view that the behaviour of the applicant in taking a drink from a glass of water in the dock in the course of what appears to have been remarks directed towards making a probation order demonstrated that the attitude of the applicant was such as to make it necessary to impose a custodial sentence.

The learned sentencing judge then adjourned the matter of sentence to the next day. Upon resumption of the sentence,
various submissions were made and the learned sentencing judge
in the course of imposing sentence said:
"You appeared not to be listening to what I was saying yesterday. Whether you listen today or not is a matter entirely for you. ...
Your defence demonstrated your incapacity to understand the full nature of what you had done ...
In court here yesterday when I was speaking to you it was clear to me that you continue to regard your conduct as something which should not have brought you here. You were wrong.
At that stage I was prepared to take a lenient course. I
have now given the matter further close consideration.
One of the purposes of this legislation is to make
sure everyone comes to appreciate that socially inept
behaviour persisted in to a degree of fear of violence
in others is now a criminal offence with a maximum
penalty of three years. I have a function to make
that clear both to you individually and to the
community; in particular, to make men like you who
consider that they can approach woman in this
particular type of way which results in their fear
understand that such a course of conduct will not be

tolerated.

I am satisfied from what I saw yesterday and from what was said in the reports upon you that it is far from clear that you understand the nature of your conduct and the seriousness of it. In view of those reports, I am far from satisfied that your attitude is one that would result in your not re-offending.
In those circumstances, it seems to me that I have no alternative as a last resort but to make this matter absolutely clear to you and to other members of the community who may think that they can act in like manner. ...

I bear very much in mind that a sentence of imprisonment is one of last resort. In your case, I have decided that it has become inevitable. The sentence is that you will go to prison for six months."

It is convenient to look at some of the provisions of s.359A which seem to be relevant in the present case.

Without setting out verbatim the language in which it is couched, s.359A provides, inter alia:
"Unlawful Stalking. (1) A person must not unlawfully stalk another person."
A person is said to unlawfully stalk another person if -

(a)he or she engages in a course of conduct involving doing a concerning act on at least 2 separate occasions to another person or other persons ...; and
(b)the stalking person intends that the person being stalked be aware that his course of conduct is directed at that person; and
(c)the person stalked is aware that the course of

conduct is directed at him or her; and

(d)the course of conduct would cause a reasonable person in the circumstances of the stalked person to believe that an offensive act (a 'concerning offensive act') is likely to happen.

The term 'concerning act' is defined to include, inter alia -

"(a)following, loitering near, watching or approaching

another person;

(b)telephoning or otherwise contacting another person;

(c)loitering near, watching, approaching or entering a place where another person lives, works or visits;"

A "concerning offensive act" relates to an unlawful act of violence in certain circumstances.

The applicant has not appealed against his conviction.
It was conceded on behalf of the applicant that the matter

of sentence ought be approached on the basis that the conduct of the applicant would cause a reasonable person in the complainant's circumstances to believe that a "concerning offensive act" is likely to happen. This "concerning offensive act" comprehends "an unlawful act of violence".

It seems reasonably clear that the activities of the applicant which led to his conviction of unlawful stalking were so bizarre that whatever may have been his intent, a reasonable person in the claimant's position could believe that "an act involving violence" was likely to happen.
Accepting that the jury were satisfied of that fact, the matters to be addressed upon sentence are the things stated at length in s.9 of the Penalties and Sentences Act.
The following facts emerge quite clearly from the matters
before the sentencing judge:
(1)The applicant was a 35 year old man who had no previous

convictions for any offence. He left school after completing Grade 12 and had since that time kept employment and had saved money sufficient to acquire assets.

(2)The unusual, if indeed not bizarre manner of the applicant's speech and behaviour was considered by a psychologist and a psychiatrist to reflect that the applicant suffered from a lack of "social skills" and gave no cause to think that he might be of danger to himself or to others by reason of that behaviour.

(3)Between the date of the last approach made by the applicant to the complainant on 6 December 1993 and the date of trial, a period of a little over six months had elapsed during which time the applicant had not made any approach to or any attempt to contact the complainant or any other person for that matter under circumstances which might amount to a breach of s.359A of the Code relating to unlawful stalking.

In the light of those matters we disagree with the conclusion reached by the learned sentencing judge that in the applicant's case imprisonment "had become inevitable". This is a case, in our view, which upon all the material, calls for an order which will provide some assistance to the applicant in gaining social skills. This can best be done by making, with the consent of the applicant, an order that he be placed on probation for a period of two years and in addition to the usual conditions that there be a special condition that he receive medical, psychological and psychiatric examination, treatment, counselling and advice with a view to giving him the "social skills" to which Dr Fisher referred in his report of 17 May 1994 and to which Mr R Dutton referred in his pre-sentence report of 18 May 1994.

Should there be a repetition of conduct of the sort which led to his conviction, which involves a breach of his probation order, further consideration may then be given to whether a custodial sentence is required.

We allow the application for leave to appeal, we allow the appeal and set aside the sentence. With the consent of the applicant we make an order that he be granted probation for a period of two years on the usual terms subject to the following special condition -
That he receive such medical, psychological, psychiatric and other examination, treatment, counselling and advice with a view to his acquisition of the "social skills" to which Dr Fisher and Mr R Dutton referred in their respective reports of 17 May 1994 and 18 May 1994 as may reasonably be required by his community correctional officer.

We order by consent that the applicant pay forthwith to the Registrar of the District Court at Mt Isa by way of compensation for the complainant, Cheryl Joyce Schmidtke, the sum of $1,500.