Wells v Mount
[2020] ACTSC 333
•17 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Wells v Mount | ||||||||
| Citation: | [2020] ACTSC 333 | ||||||||
| Hearing Date(s): | 17 June 2020; 30 October 2020 | ||||||||
| Decision Date: | 14 December 2020 | ||||||||
| Before: | Loukas-Karlsson J | ||||||||
| Decision: | See [102] | ||||||||
Catchwords: | CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal against sentence – stalking offence – specific error – | ||||||||
| whether Magistrate erred in taking breach of personal protection | |||||||||
| order into account – further evidence on appeal – re-sentence | |||||||||
| Legislation Cited: | Crimes Act 1900 (ACT) ss 35, 374 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 17, 33, 35 Evidence Act 2011 (ACT) ss, 69, 191 Magistrates Court Act 1933 (ACT) ss 207, 208, 214 | ||||||||
| Cases Cited: | Barron v Laverty [2019] ACTSC 198 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Blundell v The Queen [2019] ACTCA 34 Carpenter v Purcell [2008] ACTSC 34 Charles v The Queen [2011] VSCA 399 Devaney v R [2012] NSWCCA 285 DF v R [2012] NSWCCA 171; 222 A Crim R 178 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Gillard v The Queen [2016] ACTCA 50 Hanania v R [2012] NSWCCA 220 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Hossen v Hughes [2014] ACTSC 101 House v The King (1936) 55 CLR 499 IT v Knight [2020] ACTSC 101 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lehn v R [2016] NSWCCA 255; 93 NSWLR 205 Linggo v The Queen [2017] NSWCCA 67 Lukatela v Birch [2008] ACTSC 99 Luque v The Queen [2017] NSWCCA 226 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McLeod v The Queen [2018] ACTCA 59 Middleton v Director of Public Prosecutions [2019] ACTCA 4 Munda v Western Australia [2013] HCA 38; 249 CLR 600 Peverill v Crampton [2010] ACTSC 79 Proud v Sladic [2014] ACTCA 26 Ras Behari Lal v The King Emperor [1933] All ER 723 R v Griffiths (No 2) [2020] ACTSC 118 R v Hemsley [2004] NSWCCA 228 | ||||||||
| R v Israil [2002] NSWCCA 255 | |||||||||
| R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J, and Adams AJ, 12 December 1996) | |||||||||
| R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 | |||||||||
| R v Tsiaris [1996] 1 VR 398 R v Verdins [2007] VSCA 102; 16 VR 269 Roseby v Harman [2014] ACTSC 125 Smith v Western Australia [2014] HCA 3; 250 CLR 473 Stewart v R [2012] NSWCCA 183 Thammavongsa v R [2015] NSWCCA 107; 251 A Crim R 342 Veen v The Queen (No 2) (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; 207 CLR 584 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 | |||||||||
| Parties: | Thomas Linden Wells (Appellant) | ||||||||
| Oliver Mount (Respondent) | |||||||||
| Representation: | Counsel | ||||||||
| T Taylor (Appellant) N Purvis and K Lee (Respondent) | |||||||||
| Solicitors | |||||||||
| McKenna Taylor (Appellant) ACT Director of Public Prosecutions (Respondent) | |||||||||
| File Number: | SCA 10 of 2020 | ||||||||
| Decision under appeal: |
| ||||||||
| Court File Number(s): CC 9038 of 2019 | |||||||||
| LOUKAS-KARLSSON J | |||||||||
| Introduction |
1. Mr Thomas Wells (the appellant) appeals from a sentence imposed in the Magistrates Court on 13 January 2020.
2. The appellant was convicted and sentenced for the offence of stalking Mr Michael Hartigan, who also goes by the name of Mr Milan Kajzevic (the complainant) between 10 and 11 August 2019 contrary to s 35 of the Crimes Act 1900 (ACT) (Crimes Act). The sentence was a 15-month good behaviour order.
3. The maximum penalty for the offence is 5 years if the offence involved a contravention of an injunction or other order made by the Court, or the offender was in possession of an offensive weapon. The maximum penalty is 2 years imprisonment in all other cases. In this particular case a prosecution election was filed pursuant to s 374 of the Crimes Act, opting for the matter to be dealt with summarily in the Magistrates Court. Therefore, the maximum penalty was 2 years imprisonment, a fine, or both.
Jurisdiction
4. The appellate jurisdiction of this Court in relation to sentence appeals from the Magistrates Court is derived from pt 3.10 of the Magistrates Court Act 1933 (ACT) (Magistrates Court Act), and in particular ss 207 and 208. An appeal against sentence under s 208 of the Magistrates Court Act is a rehearing on the evidence which was before the Magistrate, and additionally any other evidence that the Court permits to be adduced: Lukatela v Birch [2008] ACTSC 99 at [19]; Barron v Laverty [2019] ACTSC 198. The Court may intervene if the lower court erred in law or fact, or exercised its discretion on the basis of a wrong principle or in a manner that was clearly wrong: House v The King (1936) 55 CLR 499 (House v The King); Peverill v Crampton [2010] ACTSC 79 at [24].
Grounds of the appeal
5. By way of Notice of Appeal dated 10 February 2020 the appellant relies on the following three grounds of appeal:
(a)
That the sentencing Magistrate mistook the fact that the Interim Personal Protection Order (PPO) between the appellant and the complainant had come into effect.
(b) That the sentencing Magistrate erred in taking into account as an aggravating feature the appellant’s purported status as the ‘beneficiary’ of an Interim PPO.
(c) That the sentencing Magistrate erred in failing to take into account as a mitigating feature the incident by the complainant towards the appellant on 22 July 2019. 6. In the alternative to the demonstration of error, the appellant sought to have further evidence admitted on appeal. This evidence was contained within the affidavit of Mr Taylor affirmed 27 May 2020 (the Taylor Affidavit).
Agreed Facts: Complainant’s previous offending
7. On 22 July 2019 the appellant was involved in an altercation with the complainant prior to the present offences which are the subject of this appeal. The facts and circumstances of that altercation were agreed by the parties in this appeal pursuant to s 191 of the Evidence Act 2011 (ACT) (Evidence Act).
8. There had been a building of tension between the complainant and the appellant. On 22 July 2019 the complainant was chopping wood with an axe. The appellant was present and wanted the complainant out of his home. An argument then developed to the point where the appellant yelled at the complainant, expressing his desire to evict him. The complainant walked towards the appellant with the axe to remonstrate. The complainant fell over. The appellant then retreated and complained to police.
9. The complainant was charged with and found guilty at hearing of having on his person an offensive weapon, namely, an axe, in circumstances which indicated intent to use the said weapon to commit an offence involving actual or threatened violence. The act by the complainant in advancing towards the appellant with the axe was an indication of an intent to use the weapon to commit an offence involving threatened violence, at the very least, if not actual violence against the appellant. Those actions by the complainant put the appellant in fear of that intent.
Appellant’s offending
10. On 23 July 2019 the appellant made an application seeking an Interim PPO protecting him from the complainant. The PPO was granted by the Deputy Registrar with various conditions, including that the complainant was not to contact the appellant.
11. When the PPO was granted the Deputy Registrar informed the appellant that it would not come into effect until the complainant had been served.
12. Between 6:46pm on 10 August 2019 and 5:34pm on 11 August 2019 the appellant made 27 unanswered calls to the complainant and sent approximately 100 text messages containing various types of verbal abuse. This is the conduct which constituted the stalking offence.
13. The PPO was not served on the complainant until 9:46am on 11 August 2019.
Further Evidence
14. By way of application in proceedings dated 27 May 2020 and supported by the Taylor Affidavit the appellant sought to adduce further evidence on appeal for three reasons:
(a) To demonstrate error; and (b) If error is demonstrated, on re-sentence; or (c) If error is not demonstrated, substitute the decision based on the material before them if it is in the interest of justice. 15. The further evidence was contained in the Taylor Affidavit and included the following documents:
(a)
A transcript of ACT Magistrates Court proceedings on 23 July 2019 relating to an application by the appellant for a PPO seeking protection from the complainant.
(b)
An Affidavit of Service confirming that the PPO which had been granted was served on the complainant on 11 August 2019 at 9:46am.
(c)
A report under the hand of Ms Leesa Morris, forensic psychologist, dated 26 May 2020.
(d) An email from the Australian Government Security Vetting Agency confirming that the appellant’s security clearance had been cancelled on 14 January 2020.
Admission of further evidence
Legislation
16. Section 214 of the Magistrates Court Act provides:
214 Appeals in cases other than civil cases
(1) This section applies to an appeal mentioned in section 208 (Appeals to which
div 3.10.2 applies).(2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
(3) In an appeal to which this section applies, the Supreme Court must— (a) if it considers it necessary or expedient to do so in the interests of
justice—
(i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and
(ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and
(iii) receive the evidence, if tendered, of any witness; and
(b) receive evidence with the consent of the parties to the appeal.
(4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any
ground for allowing the appeal, receive the evidence if—
(a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
Appellant’s submissions on admission of further evidence
17. The appellant submitted that the evidence on appeal was not restricted to “fresh”
evidence, but rather evidence that is “in the interests of justice”: IT v Knight [2020]
ACTSC 101 (IT v Knight) at [24]. It was submitted that the evidence should be admitted under s 214(3)(a)(iii) given its importance, significant probative value, its ability to identify error, and the lack of prejudice to the respondent.
18. The appellant submitted that the transcript of the PPO proceedings should be admitted on appeal on the basis that it proved as a matter of fact that the PPO did not come into effect until it was served, and as such provided the appellant with no protection until that time; that the appellant had been told that the PPO would not come into effect until it had been served; and that it provided in detail the circumstances of the incident which occurred between the appellant and complainant on 22 July 2019 (the Axe Incident).
19. It was submitted that the Affidavit of Service shows that the PPO was not served until 9:46am on 11 August 2019, and as such demonstrates that that the sentencing Magistrate mistook the fact that the PPO between the appellant and the complainant had come into effect. It was submitted that this mistake of fact had then been taken into account as an aggravating feature on sentence.
20. The appellant submitted that the report of Ms Morris had significant probative value
with respect to the appellant’s diagnoses of ‘Obsessive-Compulsive Disorder, Major
Depressive Episode and Social Anxiety Disorder’, and ‘Acute Stress Disorder, now
resolved’. It was submitted that the evidence of the appellant’s mental condition at the
time of and contributing to his offending leads to a consideration of the principles outlined in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) at [32] and other decisions such as Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 (De La Rosa) at [177]; R v Hemsley [2004] NSWCCA 228 (Hemsley) at [33] and R v Israil [2002] NSWCCA 255 at [21].
21. It was submitted that counsel for the appellant at first instance had made submissions to the effect that a non-conviction order would enable the appellant to apply for future positions in the public service without concerns about his security clearance. Counsel for the appellant submitted that this security clearance was cancelled within 24 hours of his conviction being recorded, and as such was a matter of extra-curial punishment.
Respondent’s submissions on admission of further evidence
22. The respondent submitted that the appellant must satisfy certain tests before further evidence could be adduced, including that the appellant must demonstrate a reasonable explanation for the failure to adduce evidence at first instance. It was submitted that no reasonable explanation had been demonstrated, and that the respondent did not consent to the tender of the evidence on appeal, citing s 214(3)(b) of the Magistrates Court Act. It was submitted that parties were bound by the manner in which they present their case at first instance and should not be permitted to enhance their case on appeal
23. The respondent submitted that aside from the security clearance vetting letter, the evidence sought to be admitted upon appeal would be inadmissible under s 214(4)(a) of the Magistrates Court Act. It was further submitted that the material was not relevant to the appeal.
24. It was submitted that the transcript of the PPO application was not relevant to the appeal, and inadmissible under s 69 of the Evidence Act. It was submitted that the affidavit of service was not relevant to the appeal, and the relevance of the PPO at sentence had not been the date and time it had been served.
25. The respondent submitted that the report of Ms Morris could not be used by the
appellant as a ‘back door’ to adduce second-hand hearsay from the appellant. It was
submitted that these statements contained a different version of events with respect to the Axe Incident. Though I note in this context the tender of the agreed facts on appeal.
26. In relation to the admission of evidence in the interests of justice under s 214(3) of the Magistrates Court Act, the respondent submitted that the considerations were not limited to what is in the interests of the appellant. It was submitted that the principle of
finality was the ‘paramount consideration’ in this determination. Though I note in this
context that “finality is a good thing but justice is a better”: Smith v Western Australia
[2014] HCA 3; 250 CLR 473 at [43], citing Lord Atkin in Ras Behari Lal v The King Emperor [1933] All ER 723 at 726; Middleton v Director of Public Prosecutions [2019] ACTCA 4 at [59].
Conclusion
27. On 17 June 2020, I made an order admitting the further evidence in the appeal under s 214(3) of the Magistrates Court Act, having determined that it was in the interests of justice to do so.
28. The matter was adjourned to 30 October 2020 for Ms Morris to be called for cross- examination and further submissions to be made.
29. Ultimately, I have come to the conclusion that error is established as set out later in this judgment at [36]-[39]. The further evidence is therefore admitted in any event upon the establishment of error in this case. The sentencing discretion is enlivened, and the question for the Court becomes whether, on all of the material, any different sentence should be substituted: see Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell); IT v Knight at [41]. The further material contained in annexures A, B, and D to the Taylor affidavit, being the transcript of the PPO proceedings, the affidavit of service, and the security vetting email, were tendered by agreement at the hearing of this matter on 30 October 2020 (T57-58).
Appeal Grounds One and Two
Appellant’s submissions
30. It was submitted that the Magistrate erred in the House v King sense in that there had been a mistake of fact, and a failure to take into account some material consideration. The appellant submitted that the sentencing Magistrate mistook the fact that the PPO between the appellant and the complainant had come into effect. It was submitted that,
in doing so the Magistrate erred in taking into account the appellant’s purported status
as a beneficiary of the PPO as an aggravating feature on sentence.
31. The appellant highlighted the following passage from the Magistrate’s sentencing
reasons (T7.36-8.46; 13.01.2019):
The facts of this matter have just been described in some detail during submissions by the prosecutor. It essentially involves making a number of unanswered calls to the complainant and sending about 100 text messages during the course of about 24 hours over 10 and 11 August 2019. The context was that the defendant was the recipient as an applicant for a Protection Order against the complainant.
The complainant was, in fact, prohibited from contacting the defendant and all this appears to have occurred in the context of an allegation that on 22 July that same year the complainant had approached the defendant with an axe and that was in response to the
complainant being asked to leave the defendant’s home, the place he had been staying for
some months with the charity of the defendant.
…
Had this event involved a handful of calls or text messages I would be minded to grant that request and exercise that discretion and not record a conviction, however, there are aspects to this that cause me concern and ultimately have persuaded me not to exercise that discretion which I do, in fact, have.
That is, the scale – the sheer number of these attempts to contact suggests to me that is not
appropriate. As well as the context in which the defendant here was the beneficiary of a Protection Order against the complainant. And it was that arrangement where he sought the protection of the court that prevented the complainant from engaging in basic contact
and expose the complainant to the – to committing and offence simply by having contact. In
those circumstances where the defendant then engaged in what could only be described as
a systematic and perhaps frenzied attack by email and unanswered calls.
(Emphasis added)
32. The appellant noted that when the PPO had been made, the Deputy Registrar had informed the appellant that it would not come into effect until the respondent to that PPO (the complainant in this matter) had been served (T11.4-5; 23.7.2019). It was submitted that the appellant was not aware that the PPO had been served until he was being interviewed by police for the stalking offence.
33. It was submitted that the prosecutor at the sentence hearing did not delineate in their submissions between the fact that the PPO had been made by the Magistrates Court, and that the PPO had not come into effect, nor did the appellant have any reason to believe that the PPO had come into effect. It was submitted that this difference was
“important to the weight to be given to that feature of the background of the appellant’s
offending”, and that the prosecutor had opposed the making of a non-conviction order,
submitting to the Magistrate that the PPO was a circumstance of aggravation, and the messages being designed to provoke the complainant into breaching the PPO increased the objective seriousness of the offending.
34. It was submitted that the Statement of Facts tendered at the sentencing hearing stated
that the appellant sent the communications “with the intention of making [the complainant] feel negative about himself”, and that there was no evidence that the
appellant had an intention to provoke the complainant into breaching the PPO.
35. The appellant submitted that it was a mistake of fact for the sentencing Magistrate to proceed on this basis. It was submitted to be a material error in that it was, in
conjunction with the volume of contact, determinative of the Magistrate’s assessment
of the objective seriousness and available sentencing range. It was submitted that the weight attributed to this mistake of fact appears to have been a significant reason for the decision to record a conviction and not to exercise the discretion to make a non- conviction order.
Conclusion
36. At the hearing of this matter on 30 October 2020 the respondent accepted that there had been errors of fact on the part of the sentencing Magistrate. The Magistrate had proceeded on the basis that the PPO had been served and was in effect at the time that all of the text messages had been sent, and had referred to the appellant as being the beneficiary of such an order (T97.10-20). Ultimately, the respondent did not cavil with the conclusion that there had been specific error in this regard (T97.23-45; 98.15- 35). In my view, error is established. I accept the submissions of the appellant. The errors were not immaterial. There was relevant material error.
37. Once a specific error of the kind identified in House v the King has been established, it is the duty of a Court of Appeal to exercise the discretion afresh taking into account the purposes of sentencing and any other Act or rule of law: Kentwell at [42] citing Spigelman CJ in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 (Baxter v R) at [19] with approval. The task does not involve assessing the impact of the error on sentence or merely adjusting the sentence to allow for the error identified: Baxter v R. The Court must exercise its independent discretion and determine whether the sentence is appropriate for the offender and the offence: Kentwell at [42]; Thammavongsa v R [2015] NSWCCA 107; 251 A Crim R 342 at [4], [44].
38. While not all errors vitiate the exercise of the sentencing discretion, for example, setting the term of the sentence first where the law requires the non-parole period to be set first: Kentwell at [42]. Here, there was relevant specific error. The error was material
and not merely “technical”.
39. The High Court in Kentwell held that a Court of Appeal’s role on finding error causing
a miscarriage of the discretion was not to assess whether, and to what degree, the
error influenced the outcome. A Court of Appeal’s task is to re-exercise the sentence
discretion afresh and form its own view of the appropriate sentence but not necessarily re-sentence: Lehn v R [2016] NSWCCA 255; 93 NSWLR 205 (Lehn v R) at [77]. Those remarks are equally appropriate where the discretion miscarried in respect of a discrete component of the sentencing process: Lehn v R at [78]. As such, the Court is required to proceed to re-sentencing in accordance with Kentwell.
Appeal Ground Three
40. Because I consider that there was specific error and the question of resentence is consequently raised, there is no need to determine this ground of appeal. Nevertheless, the submissions will be outlined for completeness as the submissions are also relevant to resentence.
Appellant’s submissions
41. The appellant submitted that the Magistrate erred by failing to taking into account the Axe Incident on 22 July 2019. It was noted that counsel for the appellant at first instance had requested that the sentencing Magistrate exercise his discretion to make a non- conviction order, in light of the circumstances surrounding this incident. Counsel at first instance had submitted that the appellant had become hypervigilant and that his anxiety and PTSD was developing and worsening, and that his goal in sending the
communications “was to make [the complainant] feel a part of the fear that he
constantly felt”. Counsel representing the appellant in this appeal noted that there was
no direct evidence that could support that submission, however it could be inferred from the content of the text messages. The evidence stated that the communications had
been sent “with the intention of making [the complainant] feel negative about himself”.
42. It was submitted that the appellant sought retribution, to a degree, following the Axe Incident, and that the offending was compounded by his poor mental health.
43. The appellant highlighted the following passages from the Magistrate’s sentencing remarks with respect to the appellant’s mental health (T8.11-27; 9.17-23; 13.1.2020):
I take into account his mental health challenges. The symptoms he has described which are consistent with post-traumatic stress disorder which include, in particular, a degree of hypervigilance which occurred following the alleged attack on him by the complainant in July this year.
…
There is also a background of anxiety and depression which is the context in which the post- traumatic stress appears to have occurred following the incident in July this year. Now, I also have some references that paint a positive picture of the defendant. I note that as a consequence of the events where the defendant was the complainant he has had his mental health issues increased.
…
There is clearly a need to denounce this conduct. There is clearly a need to make the defendant accountable for his actions and to recognise the harm done to the complainant. That has to be considered in the context of this earlier and perhaps parallel instance involving the two gentlemen but the other way around where the defendant he was the complainant and the complainant he was the defendant.
44. The appellant noted that s 33(1)(q) of the Crimes (Sentencing) Act 2005 (ACT)
(Sentencing Act) requires the Court to consider “the degree to which the offence was the result of provocation, duress, or entrapment”, and submitted that the circumstances
which led to the PPO being granted amounted to provocation, and were “a fundamental quality of the offending which reduces the appellant’s offending and overall objective
seriousness”. I do not accept that this was provocation in the relevant sense.
45. In the alternative to provocation, it was submitted that the circumstances which gave rise to the PPO form part of the overall circumstances in which the offence was committed. It was submitted that these circumstances must then be taken into account under s 33(1)(a) of the Sentencing Act. It was submitted that the Magistrate did not consider this in a material way.
46. It was submitted further that the Axe Incident amounted to an extenuating circumstance within the meaning of s 17 of the Sentencing Act. I accept this alternative submission in relation to re-sentence.
Respondent’s Submissions
47. The respondent correctly submitted that the failure to attribute significant weight to an issue at sentence is not a ground of appeal within the types of error described in House v The King. It was submitted that counsel for the appellant at first instance had not sought to utilise reference to the Axe Incident on the basis of provocation or mitigation. It was submitted that an appeal of sentence is not an opportunity for the revision and reformation of the case below, citing Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81]; Stewart v R [2012] NSWCCA 183 at [56].
48. Again, the respondent correctly submitted that the appellant’s offending “does not come close” to falling within the considerations of provocation under s 33(1)(q) of the
Sentencing Act, particularly due to the temporal break of three weeks between the Axe Incident and the stalking offence. As I stated earlier, I do not accept this was provocation in the relevant sense but rather a matter to be considered under ss 33 and 17.
Evidence on re-sentence
49. I will now proceed to consider the psychological evidence on re-sentence.
Psychological Evidence
50. Ms Morris, a forensic psychologist, prepared a report in relation to the appellant dated 26 May 2020. Ms Morris noted that at the time of her assessment the appellant had
previous diagnoses of ‘Obsessive-Compulsive Disorder’, ‘Major Depressive Episode’, and ‘Social Anxiety Disorder’. In addition to these historical conditions, Ms Morris made a diagnosis of ‘Acute Stress Disorder, now resolved’.
51. Ms Morris opined that at the time of the offending the appellant was in a state of acute stress, impacting upon his judgement and decision-making. The appellant reported some sense of derealisation during his offending, suggesting that he was less able to control his actions at the time due to intense psychological distress. Ms Morris found that the appellant has demonstrated some repeat of his behaviours under stress since the time of his offending, however they have been significantly reduced in intensity and
duration. In Ms Morris’ opinion, this suggests that the appellant’s behaviour choices
when stressed, deviate from normal and his tolerance for stress is reduced by his
underlying long-term psychological conditions.52. In oral evidence, Ms Morris was asked to disregard the facts of the Axe Incident which had been reported to her by the appellant. Instead, she was asked to accept the agreed factual circumstances outlined above at [8]-[9]. Ms Morris maintained her opinion that the appellant was suffering from an acute stress disorder which had contributed to his offending. Ms Morris stated (T64-65):
The psychological distress that forms the basis of an acute traumatic stress response is based on a person's perception and so it's based on a person's fear of serious injury or violence or death upon themselves. And so if [the appellant] felt fear for his own safety as a result of [the complainant] walking towards him with the axe, then that would - it will create the same psychological response.
53. Ms Morris explained that one of the symptoms of a post-traumatic response is a sense
of dissociation, in which the individual feels disconnected from reality. The appellant’s description of his experience while sending the text messages was in Ms Morris’
opinion what would be expected from an individual experiencing a dissociative response. The sending of the text messages was described as being a stream of consciousness where the appellant was continuing to verbalise in an attempt to express
all of his emotions. She stated that it was ‘very rare’ to see someone in such a situation
without a stress response.
54. In cross-examination Ms Morris accepted that she had not seen the text messages which formed the basis for the stalking charge before she had diagnosed the appellant and produced her report. She was aware that they existed, and the appellant had provided a general description of their content (T69.25-35). In addition, four of the messages had been contained in a statement of facts which had been provided for the purposes of her assessment (T69.40-45). Ms Morris was given copies of the text messages in their entirety shortly prior to being called to give evidence.
55. Ms Morris stated that while the appellant was experiencing this state of derealisation he was able to control his physical actions in that he was capable of sending of the text messages. However, he could not control his actions in terms of realising exactly where he was, what he was doing, and the consequences of his actions (T72.15-35). Ms Morris accepted that the appellant had not described the content of the offending text messages to her in detail. She stated that she had been more interested in the
appellant’s state of mind and how they happened to occur (T80.19-21). Ms Morris did
agree that the appellant’s statement to police that he had sent the messages to make
the complainant ‘feel negative about himself’ was indicative of a specific intention while
he was sending them and ‘purpose driven’. However, Ms Morris opined that this was
not necessarily inconsistent with doing something unthinkingly (T81.1-45).
56. I have had regard to the evidence of Ms Morris and accept her evidence in relation to the appellant.
Submissions on re-sentence
Respondent’s submissions
57. The respondent submits that, notwithstanding the admission of the further evidence, the sentence imposed at first instance remains appropriate, and accordingly the appeal should be dismissed.
Significance of appellant’s mental health conditions
58. The respondent submitted that there was a difficulty with the evidence of Ms Morris with respect to her opinion that the appellant had entered a state of derealisation (T66- 73). It was submitted that this was inconsistent with what the appellant had previously stated to the police about the messages. The respondent noted that the appellant had stated to the police that he had sent the messages with the intention of making the
complainant feel negative about himself. It was submitted further that the appellant’s legal representative at first instance had conceded that the appellant’s goal at the time of sending the messages had been to cause the complainant to ‘feel part of the fear that he constantly felt’ (T5.14-15; 13.1.2020).
59. It was submitted that the appellant had been sending the messages for a particular purpose, and with a particular goal in mind. Counsel submitted that this was not
unthinking behaviour, and it would suggest that thought was going into the appellant’s
messages, that he was in control of himself, and was in fact actively thinking about
what he was sending.60. The respondent provided a number of examples of messages which the appellant had sent to the complainant on 11 August 2019, both before and after the PPO had been
served. It was submitted that the appellant’s desire to ‘make [the complainant] feel the
fear that he himself had felt’ was reflected in the content of those messages. The
respondent submitted that aspects of Ms Morris’ evidence were difficult to reconcile. In particular, her agreement that the appellant’s statement to police indicated that the
appellant had a specific intention at the time he was sending the messages, and her
denial that this intention was inconsistent with doing something unthinkingly.61. The respondent accepted that Ms Morris did not deviate from her opinion that the
appellant’s mental disorder had contributed to his offending. However, it was submitted
that the extent of that contribution was unclear, and less weight should be given to Ms
Morris’ opinions in circumstances where the appellant himself had explained why he
sent them, and Ms Morris had agreed that that appellant’s actions were purpose driven
and specific.
62. The respondent also noted that Ms Morris’ opinions were based on the appellant’s self-
reporting of the events in question and noted inconsistency. The respondent also noted
that the case notes of the appellant’s treating psychiatrist from 26 July 2019 and 6
September 2019, which were relied on by Ms Morris in preparing her report, had stated
that the appellant’s ‘insight and judgement appeared intact’. Ms Morris had agreed that
case notes made by a psychiatrist at a closer point in time to the incident would be highly significant (T70.30). Treatment notes from Dr Maguire made on 6 September
2019 record that the appellant felt rage, anxiety, and hypervigilance’ following the Axe
Incident. It was submitted that this rage was consistent with a pattern of behaviour which included sending angry text messages to his ex-partner and family when the appellant was stressed.
63. It was accepted that an offender’s mental condition is relevant when considering
whether to make a non-conviction order under s 17 of the Sentencing Act. However it was submitted that it did not provide a significant extenuating circumstance in mitigation, excuse, or justification to the extent that a non-conviction order would be appropriate (T102.15-40).
In my view, the offender’s mental condition is relevant in considering whether to make
a non-conviction order under s 17. It is a significant extenuating circumstance.
Seriousness of the offence
65. While accepting that there was a link between the offending and the Axe Incident, the respondent submitted that the volume and nature of the text messages were such as to make a non-conviction order inappropriate. It was submitted the while the Axe
Incident could explain the background to, and to an extent mitigate the offending, “it did
not justify or excuse the highly inflammatory, offensive, insulting, aggressive and
harassing messages sent by [the appellant]”. It was submitted that this was particularly
so in circumstances where the appellant had sought to invoke the protective powers of
the court by applying for a PPO against the complainant.66. The respondent accepted that the appellant had tendered evidence indicating that he had lost his security clearance as a result of his conviction. However, it was submitted that there was no evidence, and it would be speculative to conclude, that this security clearance would be reinstated if a non-conviction order was imposed.
67. Finally, the respondent submitted that a conviction with a good behaviour order for 15 months, as was imposed by the Magistrate at first instance, would be the appropriate sentence.
Appellant’s submissions
Evidence of Ms Morris
68. The appellant submitted against the criticisms made by the respondent of Ms Morris. In particular, the appellant opposed the submission that less weight should be
attributed to Ms Morris’ opinion for the reason that the extent to which the appellant’s
mental condition contributed to the offending was unclear.
69. The appellant submitted that while the appellant did send some of the messages after the PPO had be served on the complainant, the appellant was unaware that the PPO had come into effect.
With respect to Ms Morris’ reliance on self-reporting, it was submitted that to use self-
reporting as a basis to discount or reject that opinion was itself problematic and potentially erroneous. The appellant submitted that an expert opinion based on what
was said to them by an offender should not be discounted unless the expert’s relevant
expertise is challenged, citing Devaney v R [2012] NSWCCA 285 at [88] and Luque v The Queen [2017] NSWCCA 226 (Luque) at [116] (T25-26). It was submitted that the only expert evidence in this matter had been that of Ms Morris, no criticism had been
made of Ms Morris’ expertise, nor had an alternative expert opinion been advanced by
the respondent (T109.10-15). The appellant noted that the opinion had also been
formed upon Ms Morris’ regard to the text messages, statement of facts, clinical notes
of the treating psychiatrist, and diagnoses advanced by the appellant’s previous
psychologists.
71. I accept the submissions of the appellant as the submissions accord with my view of the evidence.
Appellant’s submissions on re-sentence
72. The appellant submitted that after conducting a review of the evidence and the facts, the appropriate outcome would be to decline to record a conviction, pursuant to s 17 of the Sentencing Act, and if appropriate impose a period of conditional liberty in the form of a good behaviour order. It was submitted that this approach could be justified by having regard to the whole of the relevant circumstances. It was correctly submitted
that “the court must simply address the relevant factors and determine whether they
lead to the court’s view that the discretion should be exercised in the particular
circumstance.”: Proud v Sladic [2014] ACTCA 26 (Proud v Sladic) at [46] there citing
Roseby v Harman [2014] ACTSC 125 at [85].
73. The appellant is of prior good character and has no relevant antecedents, having led a pro-social life up until these events. The appellant pleaded guilty at an early opportunity, which was indicative of acceptance of responsibility for his offending.
It was submitted that the objective seriousness of the offending “falls at the lower end”,
particularly when consideration is given to the extenuating circumstances in which the offence was committed. The appellant submitted that the extenuating circumstances included:
(a)
The appellant was suffering from various mental conditions at the time of the offending.
(b) The appellant’s mental condition reduces (to a degree) the moral culpability of his offending conduct and should moderate the need for general and specific
deterrence.
(c) The recording of a conviction had a direct impact on the appellant’s security clearance and will continue to impact his future work prospects.
It was submitted that, should the respondent submit that the appellant’s offence calls
for denunciation and general deterrence, that these considerations would be more than adequately captured in this case by a non-conviction order and good behaviour order. The appellant submitted that the good behaviour order would operate in the same punitive way as one that is imposed with a conviction and carry the same onerous consequences if the appellant fails to observe the associated requirements.
Consideration – Re-sentence, ss 33 and 17 Sentencing Act
76. If an appellate court identifies a specific error, the sentence imposed must be set aside
and the appellate court is to exercise the sentencing discretion afresh, unless “in the
separate and independent exercise of its discretion [the appellate court] concludes that no different sentence should be passed”: see Kentwell at [35], [42], Gillard v The Queen
[2016] ACTCA 50 at [43], McLeod v The Queen [2018] ACTCA 59, and Linggo v The Queen [2017] NSWCCA 67. See also Carpenter v Purcell [2008] ACTSC 34. I therefore must consider the matters under the Sentencing Act including ss 33 and 17.
Statutory and Other Relevant Considerations
77. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant.
78. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration having
regard to the offender’s previous good character.
79. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian).
80. It must be recognised by the Court that the offence of stalking can have a serious and significant impact upon the victim. Both the short and long-term consequences of being the victim of this offence must be acknowledged.
81. I take the following further matters into account on re-sentence.
82. The starting point in any resentencing exercise is to consider the facts. The facts have been discussed in detail above. It is necessary to exercise the sentencing discretion afresh taking into account the purposes of sentencing and the matters the Sentencing Act requires to be taken into account, including ss 33 and 17.
83. The offender entered a plea of guilty to a statement of facts on 28 October 2019, the second time that the matter was before the Magistrates Court. He is entitled to a significant discount: Blundell v The Queen [2019] ACTCA 34.
84. Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender: See also s 35.
85. If I were considering imprisonment, in accordance with s 35 I may allow a 25% mathematical discount for the plea of guilty. In this case I may take the early plea into account in consideration of the matters under ss 33 and 17.
86. In deciding whether to make a non-conviction order, the Court must consider the
following: the offender’s character, antecedents, age, health and mental condition: s
17(3)(a); the seriousness of the offence: s 17(3)(b); and any extenuating circumstances in which the offence was committed: s 17(3)(c). The Court may also consider anything else the Court considers relevant: s 17(4).
87. I further note Proud v Sladic at [36]-[38]:
The appellant emphasised that, when s 17(3)(c) speaks of an extenuating circumstance, it
speaks of an “extenuating (circumstance) in which the offence was committed” (emphasis
added). The appellant submitted that, in the present case, the personal stress suffered by the respondent was merely a background fact to be taken into account as part of the overall
subjective circumstances, and it could not be elevated to an “extenuating (circumstance) in
which the offence was committed” (emphasis added).
In RLG v Donnelly [2012] WASC 230 at [39], Beech J considered the equivalent
Commonwealth provision, observing:
“Extenuating circumstances” have been said to mean circumstances which “excuse in
some appreciable degree the commission of the offences or lessen the appellant’s
guilt”...
For the purposes of argument, it may be accepted that, in order to constitute a s 17(3)(c) extenuating circumstance, the relevant circumstance must bear a direct relationship to the offence that was committed. In the present case, there was such a relationship. The
respondent’s legal representative submitted that the respondent’s serious personal stress
had caused an uncharacteristic lapse of judgment, as a result of which the respondent
committed the offence. The asserted connection was not contradicted.88. For the purposes of s 17(3)(c), it may be accepted that in order to constitute an extenuating circumstance, the relevant circumstance must bear a direct relationship to the offence committed: Proud v Sladic at [38]. In this case, there was such a relationship.
89. Rehabilitation is an important consideration. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
90. I also note s 33(1)(r) of the Sentencing Act which provides:
(1) In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
…
(r) whether the recording of a conviction or the imposition of a particular penalty
would be likely to cause particular hardship to the offender;
91. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and the subjective circumstances.
The balance struck by a sentencer as an ‘instinctive synthesis’ is not used to “cloak the
task of the sentencer in some mystery, but to make plain that the sentencer is called
on to reach a single sentence which … balances many different and conflicting
features”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75], cited in Munda v
Western Australia [2013] HCA 38; 249 CLR 600 at [59] and Markarian at [37].
93. In Veen v The Queen (No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ stated at 476:
… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing
discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation
from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
(Emphasis added)
I have taken into account the offender’s character, antecedents, age, health, and
mental condition: see s 17(3)(a). See also Verdins, R v Tsiaris [1996] 1 VR 398, Charles v The Queen [2011] VSCA 399, Hemsley, and De La Rosa. See further Luque at [116].
95. I have further taken into account the seriousness of the offence: See s 17(3)(b). This was a serious offence. Regardless of the label attached, be that upper or mid-range, the identifying features are clear and agreed as between the parties, as set out above. Occasionally, labels can obfuscate more than they illuminate. As has previously been
expressed in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]:
… references to low-range, mid-range and high-range objective seriousness are unlikely to
be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case.
96. The salient identifying features have been discussed earlier in this judgment, including [12], [54]-[55], and [65]. See also R v Griffiths (No 2) [2020] ACTSC 118 at [46]-[47].
97. I have also taken into account the extenuating circumstances as set out above in the context of discussing the Axe Incident. Finally, I have taken into account the further matters I consider relevant as set out above: see s 17(4).
98. Offences such as these are indeed a scourge in our Australian community. The Courts must play their part in denouncing such conduct. To assert, however, that in every case of this nature there must be a conviction, is anathema to individualised justice.
99. It is contrary to the individual sentencing discretion that must be exercised for every person that comes before the Courts. As Mahoney ACJ stated in R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J, and Adams AJ,
12 December 1996), “if justice is not individual, it is nothing.”
100. In sentencing afresh and taking into account the further evidence and the purposes of sentencing along with the relevant matters under the Sentencing Act it is appropriate to set aside the finding of guilt.
101. In this case, in my view, on balance, the guideposts point toward a s 17 non-conviction order.
Orders
102. I make the following orders
(a) The appeal is allowed. (b) The sentence recorded by the learned Magistrate is set aside. (c) The offender is re-sentenced as follows: (i) A non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) is substituted.
(ii) The offender is to enter into an 18-month good behaviour order with the core conditions as prescribed in s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT).
I certify that the preceding one hundred and two [102] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson
Associate:
Date: 16 December 2020
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