Rowley v The State of Western Australia
[2016] WASCA 162
•16 SEPTEMBER 2016
ROWLEY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 162
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 162 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:34/2016 | 24 AUGUST 2016 | |
| Coram: | BUSS P MAZZA JA | 16/09/16 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MATTHEW GLENN ROWLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentence appeal Burglary Unlawful damage Threat to harm Aggravated stalking Total effective sentence of 5 years' immediate imprisonment Appellant aged 42 years Relationship with victim of threat and stalking Whether sentence infringed first and second limbs of totality principle |
Legislation: | Criminal Code (WA), s 401(2)(b), s 444(1)(b), s 338B(b), s 338E(1) Sentencing Act 1995 (WA), s 9AA |
Case References: | Gale v The Queen [2014] VSCA 168 Gilmour v The State of Western Australia [2008] WASCA 42 Hellings v The Queen [2003] WASCA 208 R v Gill; Ex parte Attorney-General (Qld) [2004] QCA 139 Roffey v The State of Western Australia [2007] WASCA 246 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ROWLEY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 162 CORAM : BUSS P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : IND 1261 of 2015
Catchwords:
Criminal law - Sentence appeal - Burglary - Unlawful damage - Threat to harm - Aggravated stalking - Total effective sentence of 5 years' immediate imprisonment - Appellant aged 42 years - Relationship with victim of threat and stalking - Whether sentence infringed first and second limbs of totality principle
Legislation:
Criminal Code (WA), s 401(2)(b), s 444(1)(b), s 338B(b), s 338E(1)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr H Sklarz
Respondent : No appearance
Solicitors:
Appellant : Sklarz Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Gale v The Queen [2014] VSCA 168
Gilmour v The State of Western Australia [2008] WASCA 42
Hellings v The Queen [2003] WASCA 208
R v Gill; Ex parte Attorney-General (Qld) [2004] QCA 139
Roffey v The State of Western Australia [2007] WASCA 246
Wilson v The State of Western Australia [2010] WASCA 82
1 BUSS P: I agree with Mazza JA.
2 MAZZA JA: This is an application for leave to appeal against sentence.
3 The appellant was charged in the District Court on indictment with seven offences. On 4 December 2015, after negotiations between the appellant's lawyers and the prosecutor, the appellant pleaded guilty to counts 4, 5, 6 and 7 on the indictment (ts 7 - 8). The prosecutor then filed a notice of discontinuance in respect of counts 1, 2 and 3 (ts 8).
4 Count 4 was an offence of burglary upon a place ordinarily used for human habitation alleged to have occurred on 21 December 2012, contrary to s 401(2)(b) of the Criminal Code (WA) (the Code); count 5 was an offence that on 23 December 2012 at East Perth, the appellant wilfully and unlawfully damaged an apartment door, contrary to s 444(1)(b) of the Code; count 6 was an offence that on 11 August 2014 at Darlington, the appellant made a threat to unlawfully harm A, contrary to s 338B(b) of the Code and count 7 was an offence that between 18 November 2014 and 19 December 2014, the appellant pursued A with intent to intimidate her in circumstances of aggravation, contrary to s 338E(1)(a) of the Code.
5 On 19 February 2016, Goetze DCJ sentenced the appellant as follows: count 4 - 18 months' immediate imprisonment; count 5 - 15 months' immediate imprisonment; count 6 - 20 months' immediate imprisonment and count 7 - 40 months' immediate imprisonment.
6 His Honour ordered that the sentence on count 6 be served cumulatively upon the sentence on count 7 and that the sentences on counts 4 and 5 be served concurrently with each other and concurrently with the sentence on count 7. Thus the total effective sentence imposed upon the appellant was 5 years' immediate imprisonment. The appellant was made eligible for parole and the sentences on counts 4, 5 and 7 were backdated to commence on 1 January 2015.
7 There is no challenge to the individual sentences that were imposed. The sole ground of appeal alleges that the total effective sentence infringed both limbs of the totality principle.
8 In my opinion, the proposed ground of appeal has no reasonable prospect of succeeding. The application for leave to appeal against sentence should be refused, as a consequence of which the appeal is taken to be dismissed. My reasons are as follows.
Background
9 The appellant does not challenge his Honour's findings of fact. Those findings were detailed and may be described in this way.
10 The victim of the offences is a woman who I will refer to in these reasons as A. The appellant and A met in November 2010. In December of that year, they commenced a relationship which A described as mainly physical and sexual. From the middle of 2012 onwards, the relationship began to deteriorate and became highly volatile. The appellant behaved in a possessive and controlling way towards A and believed that she may have been seeing other men.
11 With respect to count 4, A accused the appellant of stealing a diamond earring from her. As a result, the appellant became more aggressive than usual. A, out of fear, went to stay with her mother for a period of two weeks.
12 On the night of 21 and 22 December 2012, the appellant entered A's apartment at East Perth, using a key that he had cut without her knowledge. A had left a crate of peaches on her kitchen bench. The appellant saw the peaches and proceeded to crush and smudge them all over the apartment, including into the carpets, paintings, manchester and walls. At 4 am on 22 December 2012, the appellant sent a text message to A, telling her that he was going to wreck her apartment and shred her clothes (ts 17). When A returned to the apartment, she saw what he had done. The earring that A had suspected the appellant stole was set in BluTack on the kitchen bench. He left a 'love note' on A's bed, among the fruit debris (ts 17).
13 Later on the morning of 22 December 2012, A obtained an interim violence restraining order (VRO) against the appellant and organised for the locks to be changed on her apartment.
14 As to count 5, at about 6.00 am on 23 December 2012, the appellant again went to A's apartment and discovered that the locks had been changed. The appellant retrieved some power tools from his car. He then went to the rear door of the apartment and, using the tools, cut out the new deadlock which had been installed. The use of the tools woke neighbours from nearby apartments who saw what the appellant was doing. The neighbours telephoned A and told her what was going on. At the time, A was in the process of returning to her apartment to meet a forensic police officer in relation to the burglary. She immediately contacted the police. Before the police arrived, the appellant left the scene.
15 Although the relationship between the appellant and A ceased after the commission of counts 4 and 5, they continued to see each other. The appellant was aware of the VRO. The police were unable to serve the appellant with it. Eventually, A indicated that she did not wish to pursue charges in respect of the incidents which occurred in December 2012 nor have the interim VRO served on the appellant. Nonetheless, the appellant was very angry with A for having obtained the interim VRO. A was conflicted about her feelings towards the appellant. She feared leaving the appellant completely and she was unable to finally terminate the relationship.
16 Count 6 occurred on 11 August 2014. Prior to that date, A had been trying to terminate her relationship with the appellant, but had been unable to do so, in part out of fear that he would spiral out of control.
17 On 11 August 2014, the appellant went to A's then address in the eastern suburbs. She allowed the appellant into the house to minimise any disturbance to her neighbours. The appellant asked her for sex, but A refused. He then snatched her mobile telephone in order to examine its contents. He downloaded spyware to retrieve information that had been deleted from the mobile telephone. In an effort to retrieve the mobile telephone, A slapped and clawed at the appellant's face. He then threw her onto the couch and pushed her face-down into it, thus restricting her breathing. When he eventually let go, the appellant said to A:
That's it, bitch. You've fucking done it now … (ts 19)
18 The appellant then marched A to the laundry where he took out a bottle of methylated spirits and a lighter. He then threatened A, saying, 'I'm going to light you up and ruin your pretty little face'. He then shook the bottle of methylated spirits and attempted to remove the childproof cap. As he did so, A pleaded with him to stop. Eventually, the appellant gave up trying to open the bottle and left A's house, telling her that she 'wasn't fucking worth it'. A contacted a colleague who found her in an hysterical state (ts 20).
19 The following day, A's mother noticed bruises on her arm. A reported the incident to the police, but said that she did not want to do anything further because she did not feel strong enough to deal with the consequences.
20 As to count 7, between September and November 2014, text messages were sent back and forth between the appellant and A. Some of the text messages the appellant sent to A were aggressive, threatening and abusive.
21 On 19 November 2014, A obtained another interim VRO against the appellant. In the month that followed, the appellant stalked A in an attempt to get her to remove the VRO.
22 Two days after the VRO was made, while A was driving her vehicle, the appellant drove past her and forced her to stop. He got out of his car, went to the driver's side window, banged on it and said to A, 'Get that shit off me, you cunt' and 'You're going to pay for this. I'm going to get you, you cunt' (ts 21).
23 Three days after this incident, the appellant trespassed onto the back deck of her property, carrying a metal pole. A locked herself in the house. The appellant went to the front of the house and raised the pole in a threatening and intimidating manner. He yelled out to her, 'You have ruined my fucking life. I've got kids. Why are you doing this to me? You've taken everything from me' (ts 21).
24 After the appellant left, A realised that, in fact, her house had been broken into and the hard drive of her computer, which recorded images taken by a closed-circuit television system, had been stolen.
25 The appellant then began accessing various websites, some of which appeared to cater for those who wished to stalk others. He also accessed the internet to search for various products, including listening devices, night-vision binoculars and tracking devices. Among the many websites he visited for what were apparently sinister purposes were 'How to stop cell phone GPS tracking', 'How to hack an email password', 'Hack like a pro' and 'How to install keylogger onto iPhone'.
26 At one point, the appellant engaged a female friend to telephone A in an attempt to lure A to a vacant block. On the same day as this call, closed-circuit television recordings revealed that a vehicle strikingly similar to the appellant's attended A's home address.
27 During the period covered by count 7, A did not return home without a police escort; spent significant sums of money on home security and on-site security guards and travelled away for her own safety.
28 On 18 December 2014, the appellant was arrested. A search of his car revealed a number of items including: a baseball bat with metal screws, night-vision goggles, a GPS tracking device, a mobile telephone, electronic scales, clipseal bags with a small amount of amphetamine, a blood-filled syringe and 17 SIM cards from different telecommunication carriers.
The appellant's personal circumstances
29 The appellant was 42 years of age when he was sentenced. Although he was single at the time of the offending, he had previously been married and has three children. His former wife and his present partner did not report any domestic violence in their relationship with him.
30 The appellant has a relatively minor traffic and criminal history. He has not previously committed any offences as serious as those which are the subject of this appeal.
31 The appellant has a history of illicit drug use, particularly methylamphetamine. The psychological report and pre-sentence report indicate that the offending occurred in the context of a volatile relationship with the victim and mutual illicit drug use. The pre-sentence report indicates that the appellant is remorseful and ashamed of his conduct and that he has empathy for A. The author of a psychological report stated that, on a clinical scale, the appellant presents as a low to moderate risk of reoffending and that he has good insight into his problems. The appellant indicated a willingness to engage in programs designed to manage his substance abuse and offending behaviour. He did not present as having entrenched negative attitudes towards women.
The victim impact statement
32 The victim impact statement is a lengthy document, some of which was redacted. It describes the highly adverse effect the appellant's offending has had on A's life. She felt physically, sexually and psychologically dominated by the appellant. She felt that she was controlled and subordinated by him. She described her life as 'hell'. At various times she had security guards at her home overnight. A had friends constantly stay near her, even sleeping next to her on occasions.
33 The appellant's conduct has caused great upheaval in A's life. She has moved home, sold her business and changed her children's school, car, phone numbers, email addresses and passwords. She has developed a hypervigilant mentality and, although her life is better as a result of the appellant's incarceration, she is afraid that, when the appellant is released from prison, he will seek revenge.
34 A said that she felt very scared when the appellant threatened to set her on fire with methylated spirits.
The sentencing remarks
35 The learned sentencing judge took into account, as mitigating factors: the pleas of guilty for which he gave a reduction of 15% pursuant to s 9AA of the Sentencing Act 1995 (WA); the appellant's shame and remorse; the steps that he had taken towards his rehabilitation; his insight and victim empathy; and the appellant's limited criminal record. The learned sentencing judge characterised the appellant's offending behaviour as 'calculated, deliberate and persistent', some of which was in wilful defiance of a court order which he knew to be in force (sentencing remarks ts 13). His Honour described the appellant as engaging in frequent verbal, physical and psychological abuse of the power he had over the complainant. His Honour noted that it was hard for A to break the relationship because of the appellant's domination of her. His Honour took into account the highly adverse effects of the offending on A. His Honour, quite properly in my respectful view, emphasised the duty of the courts to protect the victims of domestic violence from harm.
36 His Honour took into account that the offending occurred on separate occasions, broadly divided into offences that occurred in 2012 and then 2014. He expressly had regard to both limbs of the totality principle.
General principles applicable to this appeal
37 The general principles applicable to this appeal were described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2] and do not need to be repeated.
38 An accepted statement of the totality principle was made by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
The appellant's submissions
39 Counsel for the appellant submitted that the total effective sentence imposed by his Honour infringed both limbs of the totality principle. Mr Sklarz's principal argument was that the sentence on count 7 was 'high' and that, as a consequence, the sentence on count 6 should have been made at least partly concurrent with count 7 (appeal ts 9).
Disposition of proposed ground of appeal
40 The maximum penalties for the offences are as follows: count 4 - 18 years' imprisonment; count 5 - 10 years' imprisonment; count 6 - 3 years' imprisonment; count 7 - 8 years' imprisonment.
41 The offending was not isolated. As the learned sentencing judge observed, the appellant offended over two periods in 2012 and 2014. Each offence was deliberately carried out with the intention of intimidating A and was a serious example of its kind.
42 Count 4 involved the appellant letting himself into A's apartment using a key he had cut without A's permission. He then proceeded to, in effect, vandalise the apartment's interior. It is demonstrative of the appellant's persistence that a short time after he committed the burglary he returned to the apartment early in the morning. His reaction to finding that the locks had been changed was to commit count 5. Instead of leaving the premises undisturbed, he physically cut out the new deadlock which had been installed.
43 Count 6 was particularly sinister. The appellant threatened to set A alight and brandished in front of her the means to do so. A was terrified, as the appellant plainly intended.
44 Count 7 involved a series of actions which were, again, calculated to, and did, terrify A. Those actions included abusing A, threatening her with violence while armed with a weapon, attending at her home when he knew that a VRO was in force preventing him from doing so and then entering the property and stealing her computer hard drive. Later, the appellant recruited a friend to assist him in his plan to lure A to a vacant block. The websites he visited indicated the lengths he was prepared to go to in order to intimidate A. The weapons and other items that the police found in his vehicle when he was arrested were disturbing, to say the least.
45 The adverse psychological and economic effects of the appellant's offending upon A have been profound. Her fears for her safety once the appellant is released from prison are, from her viewpoint, understandable.
46 There were mitigating factors, being those identified by the sentencing judge. The most significant of these was the pleas of guilty. However, the seriousness of the offending well and truly outweighed the mitigating factors in the case.
47 There are no truly comparable sentencing cases. Only two cases decided in this court (or its predecessor) concern an offender sentenced for the offence of aggravating stalking, being Gilmour v The State of Western Australia [2008] WASCA 42 and Hellings v The Queen [2003] WASCA 208. It is unnecessary to examine these cases in detail. They are of limited assistance. In Hellings, the appellant was convicted in two trials of two counts of aggravated stalking and received cumulative terms of imprisonment of 6 ½ years and 5 years. The appellant appealed against those sentences, but leave to appeal was refused. His overall offending was worse than the offending in the present case. The aggravated stalking offence in Gilmour has some similar features to the present case. In addition to a charge of aggravated stalking, the appellant in that case was also charged with attempting to pervert the course of justice. He was convicted of both offences after trial and was sentenced to a total effective term of 4 years and 10 months' immediate imprisonment. His appeal against sentence was dismissed. The appellant in the present case pleaded guilty, but he was convicted of more offences than the appellant in Gilmour.
48 In the appellant's written submissions, reference was made to two cases decided in other jurisdictions, being R v Gill; Ex parte Attorney-General (Qld) [2004] QCA 139 and Gale v The Queen [2014] VSCA 168. Neither of these cases were of assistance to the appellant.
49 In this case, the appellant's overall offending involved a high level of criminality. A degree of accumulation was required, having regard to the different offences committed by the appellant, albeit with the same objective to intimidate and terrify A. A sentencing factor which cannot be overlooked here is the need for general deterrence. Stalking offences are often committed against vulnerable persons who suffer greatly as a consequence of the offending behaviour. Offending of the kind engaged in by this appellant designed, as it was, to cause terror to someone who had the 'temerity' to want to cease a relationship requires a sentence with elements of both personal and general deterrence. Having regard to the overall criminality involved in all the offences, viewed in their entirety, and having regard to the circumstances of this case, including those referable to the appellant personally, I do not regard the total effective sentence of 5 years' imprisonment as infringing the first limb of the totality principle. Contrary to the submissions made on behalf of the appellant, it was, in my view, well open to his Honour to accumulate the sentences on counts 6 and 7. Nor do I regard it as being a 'crushing' sentence. There is nothing which indicates that the sentence will have the effect of destroying any reasonable expectation that the appellant will have a useful life after release.
50 In my opinion, the proposed ground of appeal has no reasonable prospect of succeeding. Leave to appeal should be refused.
Orders
51 The orders that I would make are as follows:
1. Leave to appeal is refused.
2. The appeal is dismissed.
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