Director of Public Prosecutions (NSW) v Nikolovski

Director of Public Prosecutions (NSW) v Nikolovski - [2017] NSWSC 1038 - NSWSC 2017 case summary — Zoe

[4]

The offence against s 13(1) of the CDPV Act

Section 13(1) of the CDPV Act provides: "13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. (5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed."
Section 7 of the CDPV Act defines intimidation in the following terms: "7 Meaning of "intimidation" (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour."
Section 10 of the CDPV Act sets out the objects of the Act in relation to personal violence in the following terms: "10 Object of Act in relation to personal violence (1) The object of this Act in relation to personal violence is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship. (2) This Act aims to achieve that object by: (a) empowering courts to make apprehended personal violence orders in appropriate circumstances to protect people from violence, intimidation (including harassment) and stalking, and (b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice, and (c) ensuring that other avenues of dispute resolution are encouraged where appropriate."

[5]

The proceedings in the Court below

As the question to be determined turns on a point of statutory construction it is not necessary to narrate the detail of the proceedings in the Court below or the effect of the evidence before Milledge LCM. The following summary is sufficient for present purposes.
The defendant was, relevantly, charged with an offence of intimidate under s 13(1) of the CDPV Act arising from his conduct in the course of an altercation in Glebe on 6 March 2016. The defendant pleaded not guilty and the matter proceeded to hearing before Milledge LCM. Her Honour found that the defendant made intimidating statements to a police officer, which included remarks of a sexual nature about the officer's wife; and that the defendant's conduct had actually intimidated the officer. However, her Honour dismissed the charge on the ground that the charge should have been laid under s 60(1) of the Crimes Act, rather than s 13(1) of the CDPV Act because the victim was a police officer acting in the execution of his duties as a police officer. Her Honour said: "[T]here is a specific section that caters for a law enforcement officer, which is a police officer, which is the Crimes Act and Inspector Coffey was not acting in his personal capacity, he was acting in the execution of his duty, he was acting as a police officer. . . . this is a police officer who was acting in his capacity as a law enforcement officer and he has the special protection of s 60 [of the Crimes Act]. My view is, if it was under s 60, I would have found in favour of the prosecution, because I would have been more than satisfied, beyond a reasonable doubt that the prosecution has discharged its onus because looking at the demeanour and listening to the viva voce evidence of Inspector Coffey, it was something that he really took personally and it really had an effect on him. . . . BUT I FIND THAT THE ACT AND THE SECTION IS INCORRECT. IT IS NOT A PERSONAL VIOLENCE OFFENCE FOR THE PURPOSE OF THIS MATTER AND FOR THAT REASON, IT FAILS, BECAUSE IT SHOULD HAVE BEEN LAID UNDER S 60 OF THE CRIMES ACT AND NOT S 13 OF THE CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT AND FOR THAT REASON, IT IS DISMISSED."

[11]

The elements of the respective offences

For present purposes, the principal distinction between s 13(1) of the CDPV Act and s 60(1) of the Crimes Act is that the prosecution must prove, in respect of an offence against s 60(1) that the defendant intimidated the victim. The term "intimidation" is not defined in the Crimes Act. Accordingly, the word bears its ordinary meaning. It is settled law that, for an offence under s 60(1) of the Crimes Act the prosecutor must prove both that the defendant intended to intimidate the victim and that the defendant's conduct had the effect of intimidating the victim: Meller v Low (2000) 48 NSWLR 517; [2000] NSWSC 75 at [10]-[11] (Simpson J); R v Manton [2002] NSWCCA 316; (2002) 132 A Crim R 249 at [6]-[12] (Mason P, R S Hulme and Simpson JJ agreeing); Director of Public Prosecutions (NSW) v Best [2016] NSWSC 261 at [50] (R A Hulme J).
By contrast, although the prosecution needs to prove as an element of an offence against s 13(1) of the CDPV Act that the victim was intimidated, the word "intimidation" is defined so as to alter its natural meaning. Thus, the prosecutor is not required to prove that the alleged victim actually feared physical or mental harm (s 13(4) of the CDPV Act). Moreover, if the defendant's conduct is such as to cause a reasonable apprehension of injury to a person (s 7(1)(c) of the CDPV Act), it does not matter whether the defendant's conduct caused such an apprehension in the alleged victim, since the use of the word "reasonable" shows that the test is an objective one.
There is a slight difference in the maximum penalty for each offence when tried on indictment, though not when dealt with summarily. When dealt with summarily, both offences are subject to the jurisdictional maximum of 2 years' imprisonment and a maximum fine of 50 penalty units (s 268 of the Criminal Procedure Act 1986 (NSW)). When tried on indictment, the maximum penalty for both offences is 5 years. However an additional or alternative penalty of 50 penalty units is available for an offence under s 13(1) of the CDPV Act when tried on indictment. I note these matters for completeness although they have no bearing on the independent operation of the two provisions. The result of these proceedings would be the same irrespective of the respective penalties provided for.

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