Treloar v Police
[2018] SASC 162
•15 October 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TRELOAR v POLICE
[2018] SASC 162
Judgment of The Honourable Justice Bampton
15 October 2018
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT
MAGISTRATES - ORDERS AND CONVICTIONS - SETTING ASIDE OR AMENDMENT OF ORDERS OR CONVICTIONS - CONVICTIONS - AMENDMENT
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction for two counts of stalking contrary to s 19AA of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) on grounds that it was not open to the Magistrate to use an uncharged incident on 19 January 2015 as an element of either count and the evidence at trial did not establish the communications were made “in a manner that could reasonably be expected to arouse apprehension or fear” – respondent conceded that each count contained inadequate particulars as neither particularised two or more separate occasions of prescribed conduct – respondent applied to amend the information to allege one count of stalking constituted by prescribed conduct on 19 January 2015 and 19 September 2015 – appellant opposed the inclusion of the incident on 19 January 2015 as a particular of the charge – whether permission to amend the Information should be granted – whether the voicemail messages left on 19 September 2015 or 20 September 2015 proven in the Magistrates Court are capable of constituting one offence of stalking contrary to s 19AA of the CLCA.
HELD: The voicemail messages left on 19 September 2015 and 20 September 2015 proven in the Magistrates Court are capable of constituting one offence of stalking contrary to s 19AA of the CLCA. Noting that the appellant conceded he would not be prejudiced if the Information were amended to allege one count of prescribed conduct comprising the voicemail messages left on 19 September 2015 and 20 September 2015, the Court makes the following orders:
1. The time within which to appeal is extended to 19 February 2018.
2. Appeal allowed.
3. The conviction recorded on 24 November 2017 on count 2 on the Magistrates Court Information dated 23 December 2015 is set aside.
4. The sentence imposed by the Magistrates Court on 24 November 2017 is set aside.
5. The respondent is permitted to delete count 2 on the Magistrates Court Information dated 23 December 2015 and to amend count 1 to allege one count of stalking against s 19AA of the CLCA as follows “On 19 September 2015 and on 20 September 2015 at Wingfield in the said State stalked another person namely Jeremy Oaten”.
6. The conviction recorded on 24 November 2017 on count 1 is varied to record a conviction on count 1 on the Information dated 23 December 2015 as amended pursuant to order 5 above.
7. The appellant is resentenced on count 1 to two months’ imprisonment to commence on 15 October 2018 and be served concurrently with the sentence imposed by the District Court on 7 September 2018.
Criminal Law Consolidation Act 1935 (SA) s 19AA; Telecommunications (Interception and Access) Act 1979 (Cth) s 178(2); Summary Offences Act 1953 (SA) s 7; Summary Procedure Act 1921 (SA) s 181; Criminal Procedure Act 1921 (SA) s 181, s 182; Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 96(3)(a); Criminal Law (Sentencing) Act 1988 (SA) s 38(2)(a), referred to.
Brew v Cox [1964] SASR 90; O’Hair v Killian (1971) 1 SASR 1; R v Hussey [2013] SASCFC 41; Radenkovic v The Queen (1990) 170 CLR 623; Dimozantos v The Queen (No 2) (1993) 178 CLR 122; Collins v Police [2009] SASC 114, considered.
TRELOAR v POLICE
[2018] SASC 162Magistrates Appeal: Criminal
BAMPTON J: Following a trial before a Magistrate, Mr Treloar was found guilty of two charges of stalking contrary to s 19AA of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
The charges on the Magistrates Court Information dated 23 December 2015 alleged that Mr Treloar:
1.On 19 September 2015 at Wingfield in the said State stalked another person, namely Jeremy Oaten; and
2.On 20 September 2015 at Wingfield in the said State stalked another person, namely Jeremy Oaten.
On 27 January 2017, the Magistrate delivered his reasons for finding the two charges proved. Mr Treloar was sentenced on 24 November 2017 to six months’ imprisonment, suspended on his entering into a bond to be of good behaviour for 18 months.[1]
[1] Sentencing submissions were delayed pending provision of a psychiatric report.
By a notice of appeal filed on 19 February 2018, Mr Treloar made an application for an extension of time to appeal the conviction. As the respondent does not oppose the application, I extend the time within which to appeal to 19 February 2018.
The trial
At trial, the Magistrate heard evidence from the complainant, Jeremy Oaten, that he had known Mr Treloar since 1980. Mr Oaten said that his father had been Mr Treloar’s general practitioner, their parents were family friends, and they had attended school together. However, at some point around 2003 Mr Oaten and Mr Treloar had a falling out. Mr Oaten said that the friendship was brought to an end following “a pattern of … phone calls of a threatening nature and sort of threats to kill and this that and the other”. Mr Oaten denied in cross-examination that he fell out with Mr Treloar regarding allegations made by Mr Treloar that Mr Oaten was involved in a fraudulent financial scheme.
19 January 2015 telephone call
Mr Oaten gave evidence that on Monday 19 January 2015 whilst at work he received a telephone call. He “recognised Geoffrey’s voice immediately”, who said “something along the lines of ‘You’re a dead cunt’”. Mr Oaten reported the phone call to the police. He was later informed by police that Mr Treloar had been cautioned regarding further contact with him. Exhibit P1 is an affidavit of Detective Brevet Sergeant Stephen Bedford, sworn on 26 July 2016. Detective Brevet Sergeant Bedford deposed that on 24 March 2015 he was on duty at the City Watch House, having arrested Mr Treloar. Whilst at the Watch House he administered a caution to Mr Treloar regarding a telephone call he had made to Mr Oaten on 19 January 2015, in the following terms:
Your behaviour in relation to a threatening phone call you made to Jeremy Oaten on the 19 January 2015 at Wingfield, is causing Mr Oaten serious mental harm and/or serious apprehension/fear. If you continue to make phone calls or abuse him then you may be committing the offence of stalking and be subjected to criminal proceedings. Do you understand?
Detective Brevet Sergeant Bedford deposed that Mr Treloar acknowledged that he understood the caution.
Mr Oaten gave evidence that, on 15 August 2015, he provided a statement to police regarding an investigation police were undertaking concerning threats allegedly made to certain members of Mr Treloar’s family. Mr Oaten was asked to provide a statement “as to whether [he (Mr Oaten)] had been making threats against Geoffrey’s father or otherwise”. Mr Oaten told the Magistrate that he understood that Mr Treloar was due to stand trial in 2017 in respect of “a major indictable threat”. Mr Oaten said that he maintains a friendly relationship with Mr Treloar’s father.
Mr Oaten said that when he arrived at work on Monday 21 September 2015 he was advised by a secretary that there were messages on the office voicemail system that he needed to listen to in private. Mr Oaten accordingly listened to two recorded messages left on his work phone number. Mr Oaten copied the messages to a thumb drive, Exhibit P5, and provided it to police.
19 September 2015 telephone message
The first voicemail message, received at 12.32 pm on Saturday 19 September 2015, was transcribed to read as follows:
Message for Jeremy Oaten. It’s Geoffrey Treloar. Jeremy I’ve just run into one of your best mates. Apparently you’re really, really depressed. That’s no good. Maybe you start paying off the $1.2 m you stole. Also he recognises that the only way you can get sex from girls is from Tinder. Is that true? Back packers Jerry? What’s your life turning into man? I’ll get my family millions man Jeremy. You can talk to my father as much as you want. I’ll get my family’s millions. The legislation is in my favour. Stop sending death threats and making it look like me. You got motive. Don’t tell me you and your brother don’t. Also I think we should let bygones be bygones and me and my mate will take you fishing. What do you reckon? See you soon buddy.
Mr Oaten said that, having listened to the message and in particular the assertion that Mr Treloar and his mate would “take you fishing”, he felt sick and nauseous as he believed that “it was clearly a threat to kill me”.
20 September 2015 telephone message
The second voicemail message, received at 1.06 pm on Sunday 20 September 2015, was transcribed as follows:
Message for Jeremy Oaten. It’s another message for Jeremy Oaten. It’s Geoffrey Treloar. Mate I’m sorry to hear you are depressed and I am sorry that Peter Orpen and you ripped off $1.2m. I’m sorry for that. I ran into your best mate and they are really concerned about you. So one day we may be able to rebuild our friendship. If you want to go fishing, deep water fishing with me and my best mate he can come over. What are you living at Nick Wottons? He can come over and show you the fishing it’s amazing. Anyway Jeremy, don’t contact my dad. If you’re sending death threats making it look like me. You and your brother, I dare say it James, he’s completely mentally ill. What’s he’s been to Glenside about ten times now he’s loose out in the community? If you don’t ever want to have contact with me that’s fine Jeremy. There’s nothing stopping me ringing you now. I’m not going to ever ring you again. None of these fucking messages have been threatening nature. None of these messages. I’m concerned about you mate. Um, you take care. That is the last time you’re going to hear from me mate, see ya.
Mr Oaten gave evidence that he was extremely concerned, particularly with respect to the reference made by Mr Treloar to having a mate come over and going “deep sea fishing”. He said that he had not had any friendly contact with Mr Treloar since they fell out and he considered that Mr Treloar was implying that he would take him out fishing and push him into deep water.
It was not put to Mr Oaten in cross-examination that neither the telephone message left on 19 September 2015 nor the message left on 20 September 2015 aroused in him any apprehension or fear.
Exhibit P4 is statement of Paul Francione, a security liaison specialist with the Law Enforcement Liaison Section of Telstra Corporation Limited (“Telstra”). Mr Francione stated that the South Australia Police made a request under s 178(2) of the Telecommunications (Interception and Access) Act 1979 (Cth) that Telstra provide information regarding phone calls made from Mr Treloar’s mobile telephone number on 19 September 2015 and 20 September 2015 to Mr Oaten’s work phone number. Calls were identified from Mr Treloar’s mobile telephone number to Mr Oaten’s work telephone number at 12.31 pm on 19 September 2015 and at 1.05 pm on 20 September 2015.
Following the prosecution case, Mr Treloar’s counsel made a no case to answer submission arguing:
(a)That the first charge could not in law constitute an offence as it was a prerequisite of the charge that on at least two separate occasions impugned conduct had occurred.
(b)That given that an offence is constituted only by impugned conduct on at least two separate occasions the charges were duplicitous and the information should be dismissed.
(c)That even if the Court accepted the calls were made by the defendant on 19 and 20 September 2015 neither call could have reasonably aroused fear or apprehension.
(d)That there was no evidence that Mr Treloar intended to ‘cause serious apprehension or fear’.
The Magistrate found a case to answer and recorded in his reasons:
[16]I agreed also with the prosecutor’s submission that both the January 2015 telephone contact and the contact of 19 January could be used as an element of a separate charge as laid in count two.
…
[20]I rejected Ms Parham’s submission that there was no evidence to found the charges and I further rejected her submission that I should effectively give myself a Prasad direction. Ms Parham advised me that her client did not propose to give evidence nor to call evidence in his defence. The matter accordingly proceeded to final submissions. To a significant degree Ms Parham’s submissions were a reiteration of the matters discussed above. For the reasons already discussed I reject the submissions that the words are not capable of giving rise to genuine apprehension and fear. I reject the contention that they did not give rise to genuine apprehension and fear. I reject the contention that prosecution has failed to prove the defendant intended to cause serious apprehension and fear.
Mr Treloar did not give or call evidence.
The Magistrate’s findings
The Magistrate, in finding the two counts of stalking proved, rejected the submission that Mr Oaten’s evidence was unreliable and should not form a basis to make findings of fact. He found that the fact and content of the calls could not be disputed. He found Mr Oaten to be an impressive witness and accepted the veracity of his account as to the level of apprehension and fear he held.
The Magistrate recorded that the prosecution must establish intention to cause serious apprehension or fear. He stated that, in assessing intention, it was crucial “to have regard to Mr Oaten’s evidence of the background circumstances”, particularly given the absence of any explanation by Mr Treloar. He agreed that it was important to take into account not only the words expressed, but also the context in which they were said. He said that the intended purpose of the words expressed in the telephone call of 19 January 2015, namely “You’re a dead cunt”, were “self‑evidently threatening”. He agreed with the prosecution submission that the 19 and 20 September 2015 voicemail messages should be given proper context. He said that it was significant, in assessing the intention behind the two messages, to note that nothing occurred between January and September 2015 “to suggest any genuine attempt on the part of Mr Treloar to renew the fractured friendship”. He agreed with the prosecutor’s submission:
… that given the pending court hearing on 21 September 2015 for which Mr Treloar obviously knew Mr Oaten had given police assistance it would be fanciful to suggest Mr Treloar initiated contact on 19 and 20 September out of any genuine concern as to Mr Oaten’s welfare and to offer him a pleasant fishing day out in ‘deep water’.
The Court hearing on 21 September 2015 related to a criminal prosecution against Mr Treloar.
The Magistrate found that the only logical explanation was that there was an intention to cause Mr Oaten serious apprehension or fear.
The grounds of appeal
By an amended notice of appeal, Mr Treloar complained of two grounds of appeal as follows:
1.It was not open to the Learned Magistrate to use the January 2015 incident as an element of either charge.
2.The evidence did not establish the third element of either charge, namely that the communications were made “in a manner that could reasonably be expected to arouse apprehension or fear in the other person”.
The offence of stalking
Section 19AA of the CLCA relevantly provides:
19AA—Unlawful stalking
(1)A person stalks another if—
(a) on at least two separate occasions, the person—
…
(ivb)communicates with the other person, or to others about the other person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication in a manner that could reasonably be expected to arouse apprehension or fear in the other person; … and
(b) the person—
…
(ii)intends to cause serious apprehension or fear.
(2)A person who stalks another is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 3 years;
(b) for an aggravated offence—imprisonment for 5 years.
…
(4)A person who has been acquitted or convicted on a charge of stalking may not be convicted of another offence arising out of the same set of circumstances and involving a physical element that is common to that charge.
Section 7 of the Summary Offences Act 1953 (SA) provides that “offensive” includes “threatening, abusive or insulting”.
In proving that Mr Treloar had committed an offence contrary to s 19AA of CLCA, the prosecution had to prove that:
1.He communicated with Mr Oaten by telephone;
2.He did so on at least two occasions;
3.He did so in a manner that could reasonably be expected to arouse apprehension or fear in Mr Oaten; and
4.He intended to cause serious apprehension or fear.
The first ground of appeal
The Magistrates Court Information dated 23 December 2015 particularised two counts of stalking. The respondent conceded that each count contained inadequate particulars, as neither particularised two or more instances of prescribed conduct. It is submitted that but for the saving effect of s 181 of the then Summary Procedure Act 1921 (SA)[2] the Information would have been defective.
[2] Now the Criminal Procedure Act 1921 (SA), as of 5 March 2018.
The respondent submitted that trial counsel was entitled to seek better particulars of each count but did not. It was further submitted that by the time of the ruling at the close of the prosecution case, it must have been clear that the Magistrate was treating the 19 January 2015 incident as a particular of the first count and erroneously the second count. The respondent contended that it does not appear that the late notice of the reliance placed on the 19 January 2015 telephone call surprised or embarrassed Mr Treloar’s counsel.
The respondent argued that, although there was a deficiency in the particulars provided in the Information, the evidence which was led at trial and accepted by the Magistrate without significant challenge was evidence which was strong, cogent and capable of supporting a single conviction of stalking.
As conceded by the respondent, the conviction on count 2 impermissibly rests on the conduct that was already the subject of count 1. Further, the conviction on count 1 did not reflect the necessary elements of the offence notwithstanding the evidence that was led and accepted that might properly constitute count 1. As a result, the respondent sought the following orders:
1.That the Information and conviction in relation to count 1 be amended as follows:
That the words “19 January 2015 and” be added to the count with the result that it reads “On 19 January 2015 and on 19 September 2015 at Wingfield in the said State stalked another person namely Jeremy Oaten”.
2.That the conviction in relation to count 2 be set aside.
3.That Mr Treloar be resentenced as the Court sees fit.
Permission to amend
Mr Treloar opposed the respondent’s application to amend on the ground that it was not open to the prosecution to use the 19 January 2015 as an element of the offence. Mr Treloar submitted that it would have been better for a single offence to be charged alleging a range of dates, that is, between 19 and 20 September 2015 inclusive. He contended that it is one thing for the prosecution to apply to amend a charge on appeal, to reword it and use a similar date range, but it is a wholly different thing to expand the date range and include the January date.
Mr Treloar argued that it was not open to the Magistrate to rely on the 19 January 2015 incident and find it “clearly could be taken as reasonably giving rise to apprehension or fear” and “this contact clearly constituted a separate occasion for the purposes of count 1”. He pointed out that it was not included in the date range pleaded in count 1 and, further, it was so far apart in time from the 19 September 2015 voice message that it ought not be permitted to be used. It was submitted that there must be some connection between two occasions and once too much time elapses they cannot be considered elements of the one offence.
Section 181 of the Criminal Procedure Act 1921 (SA) provides:
181—Charges
(1)An information is not invalid because of a defect of substance or of form.
(2)A court may—
(a) amend an information to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b) dismiss an information if the defect cannot appropriately be cured by amendment.
Unless a defendant has been substantially prejudiced by the defect, s 181 of the Criminal Procedure Act permits the Court to make orders that the Magistrate could have made at the trial.
I decline to permit amendment of the Information to include the incident of 19 January 2015 as an additional particular for count 1. It is appropriate to permit amendment to allege a single count of stalking comprising two instances of prescribed conduct, being the 19 and 20 September 2015 voicemail messages. Mr Treloar conceded in his written submissions that he would not suffer prejudice if such an amendment were made given the way the trial was conducted.
It is appropriate to set aside the conviction on count 2 and to permit the respondent to amend the Information to allege one count of stalking contrary to s 19AA of the CLCA, comprising the 19 and 20 September 2015 voicemail messages. The sentence imposed on 24 November 2017 must also be set aside.
The second ground of appeal
I turn to consider the second ground of appeal in respect of a single count of stalking on the amended Information.
Mr Treloar argued that the evidence relating to the 19 and 20 September 2015 voicemail messages was insufficient to establish the third and fourth elements of the offence of stalking and the amended charge is not made out. He contended that the messages could not reasonably be expected to arouse apprehension or fear in Mr Oaten and that he did not intend to cause him serious apprehension or fear.
Mr Treloar contended that Mr Oaten’s evidence that he was frightened was his personal subjective view and is irrelevant. He submitted that the question of whether the communication would reasonably be expected to arouse apprehension or fear is be determined objectively by assessing what was said.
Conclusion
In considering this matter I have read the evidence in its entirety. I have also listened to the recordings of the messages left on 19 and 20 September 2015.
The Magistrate was correct to characterise the 19 and 20 September 2015 voicemail messages as reasonably expected to evoke apprehension or fear in Mr Oaten.
The 19 September 2015 message left by Mr Treloar accused Mr Oaten of stealing $1.2 million, ridiculed Mr Oaten’s sex life, expressed an intention to reclaim his family’s missing millions, and accused Mr Oaten and his brother of making death threats to his father and then framing him for that conduct. Mr Treloar also accused Mr Oaten and his brother of having motive to make the alleged death threats. He then said, “Also I think we should let bygones be bygones and me and my mate will take you fishing”.
In the 20 September 2015 message Mr Treloar again accused Mr Oaten of having “ripped off $1.2 million”. He also made reference to where Mr Oaten lives, and referred to his unnamed “best mate” coming over to show Mr Oaten the “deep water fishing”. He then instructed Mr Oaten, “don’t contact my dad. If you’re sending death threats making it look like me” and then asserted that “none of these fucking messages have been threatening”.
Both messages were, on my assessment, disparaging, patronising and disingenuous. The purported expressions of concern and letting “bygones be bygones” do nothing to conceal the hostility and threats.
Both messages, considered in context against the background of the fractured friendship and left very soon after Mr Oaten gave his statement to police in August 2015 and just before the 21 September 2015 court hearing, were communications that could reasonably be expected to arouse apprehension and fear in Mr Oaten.
I am satisfied that Mr Treloar communicated with Mr Oaten by telephone on at least two occasions. He did so in a manner that could reasonably be expected to arouse apprehension or fear in Mr Oaten and he intended to cause serious apprehension or fear.
The 19 and 20 September 2015 voicemail messages proven in the Magistrates Court are capable at law of constituting an offence of stalking contrary to s 19AA of the CLCA.
Accordingly, the conviction recorded on 24 November 2017 on count 1 is varied to record a conviction on count 1 on the Information dated 23 December 2015 as amended pursuant to the orders in [55] of these reasons.
Resentencing
Following the hearing of this appeal, Mr Treloar was sentenced for other offending by the District Court on 7 September 2018 to 16 months’ imprisonment with a non‑parole period of nine months. The sentence was ordered to commence on 29 March 2018, when Mr Treloar was taken into custody. His non-parole period expires on 29 December 2018. Accordingly, I heard further submissions regarding the effect of the immediate custodial District Court sentence on the disposal of this matter.
As Mr Treloar has been sentenced to an immediate period of imprisonment since entering into the suspended sentence bond in respect of this matter, he is not eligible for a suspended sentence on resentencing.[3]
[3] As prescribed by s 38(2)(a) of the Criminal Law (Sentencing) Act 1988 (SA), which was repealed on 30 April 2018 and replaced by s 96(3)(a) of the Sentencing Act 2017 (SA).
Further, the Court has no power to backdate a suspended sentence bond to the date that the original suspended sentence bond was entered into before the Magistrates Court.[4]
[4] R v Hussey [2013] SASCFC 41.
The respondent conceded that, having regard to the principles of equity, justice and fairness,[5] it would be within Court’s discretion to order that any imprisonment imposed on Mr Treloar by way of resentencing on appeal commence forthwith and run concurrently with the District Court sentence.
[5] Radenkovic v The Queen (1990) 170 CLR 623; Dimozantos v The Queen (No 2) (1993) 178 CLR 122.
If a sentence was imposed that expired before or with the non-parole period imposed by the District Court, Mr Treloar would not serve any additional time in custody.
Mr Treloar submitted that, ordinarily, this would be a matter where the Court could exercise its power under s 42(5) of the Magistrates Court Act and amend the previous sentence. He agreed that if he were to be resentenced to a sentence of imprisonment, he would not be eligible for a suspended sentence because he is currently serving a custodial sentence. He also agreed that if the previous sentence were amended, it could not operate to backdate the suspended sentence. To avoid this potential difficulty, Mr Treloar agreed that the course suggested by the respondent is sensible, noting that, ordinarily, a change from a suspended to a custodial sentence on appeal would operate as a manifest prejudice to an appellant.
In the peculiar circumstances of this matter, and only in those circumstances, Mr Treloar accepted that a custodial sentence that runs concurrently with the sentence he is now serving would not amount to a harsher penalty than the original sentence imposed in the Magistrates Court.[6]
[6] Collins v Police [2009] SASC 114 at [35]-[36] (Doyle CJ).
I have had regard to the matters personal to Mr Treloar referred to by the Magistrate in his sentencing remarks. I have also taken into account the psychological report of Louisa Hackett dated 26 August 2018. Ms Hackett strongly recommended that Mr Treloar engage in individual psychological intervention with a psychologist experienced in the treatment of complex personality disorders.
I resentence Mr Treloar to two months’ imprisonment for the one count of stalking contrary to s 19AA of the CLCA. The sentence commences today and is to be served concurrently with the sentence imposed by the District Court. By resentencing in this manner, Mr Treloar will not serve any additional period in prison, notwithstanding that the two separate courses of offending would ordinarily attract cumulative sentences. Further, the rehabilitation and specific deterrence that the Magistrate directed his sentence towards will be effected by the supervision Mr Treloar will be subject to once he is released on parole on the sentence imposed by the District Court.
Orders
I make the following orders:
1.The time within which to appeal is extended to 19 February 2018.
2.Appeal allowed.
3.The conviction recorded on 24 November 2017 on count 2 on the Magistrates Court Information dated 23 December 2015 is set aside.[7]
[7] Pursuant to s 42(5) of the Magistrates Court Act 1991 (SA).
4.The sentence imposed by the Magistrates Court on 24 November 2017 is set aside.
5.The respondent is permitted to delete count 2 on the Magistrates Court Information dated 23 December 2015 and to amend count 1 to allege one count of stalking against s 19AA of the CLCA as follows:[8]
[8] Pursuant to s 42(5) of the Magistrates Court Act 1991 (SA) and s 181 of the Criminal Procedure Act 1921 (SA).
On 19 September 2015 and on 20 September 2015 at Wingfield in the said State stalked another person namely Jeremy Oaten.
6.The conviction recorded on 24 November 2017 on count 1 is varied to record a conviction on count 1 on the Information dated 23 December 2015 as amended pursuant to order 5 above.[9]
[9] Pursuant to s 42(5) of the Magistrates Court Act 1991 (SA) and s 182 of the Criminal Procedure Act 1921 (SA). Brew v Cox [1964] SASR 90 at 94; O’Hair v Killian (1971) 1 SASR 1 at 10.
7.Mr Treloar is resentenced on count 1 to two months’ imprisonment to commence on 15 October 2018 and be served concurrently with the sentence imposed by the District Court on 7 September 2018.
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