Gale v The Queen [2014] VSCA 168

Court of Appeal (Vic)|2014-08-07|Before: Weinberg JA, Whelan JA, Beach JA

DPP v Gale (Unreported, County Court of Victoria, Judge Gamble, 3 May 2013)

CRIMINAL LAW - Conviction - Application for leave to appeal - Applicant pleaded guilty to threatening to inflict serious injury - Whether, notwithstanding plea of guilty, phrase 'I will fuck you up', as texted to victim, so imprecise as to fall short of satisfying actus reus of offence - When viewed in light of surrounding circumstances (stalking and aggravated burglary), elements of offence established - Application refused.

CRIMINAL LAW - Sentence - Application for leave to appeal - Applicant pleaded guilty to stalking (two counts), aggravated burglary and threatening to inflict serious injury - Applicant used GPS and listening devices to track estranged ex-wife and her partner - Broke into ex-wife's home armed with cattle prod and verbally abused occupants before fleeing - Sent text message shortly thereafter with phrase 'fuck with me or my family I will fuck you up' - Sentenced to four years and six months' imprisonment with non-parole period of two years and six months - Sentences imposed on stalking charges (18 months and nine months respectively) and charge of making threat to inflict serious injury (12 months) manifestly excessive - Sentence imposed on aggravated burglary within range - Leave granted - Appeal allowed - resentenced accordingly.

[s 21A Crimes Act 1958 (Vic)]

[s 77 Crimes Act 1958 (Vic)]

[s 21 Crimes Act 1_958_ (Vic)]

5 years and 6 months' imprisonment, with a non-parole period of 3 years.

1 On 1 May 2013, the applicant pleaded guilty, in the County Court at Warrnambool, to two charges of stalking (charges 1 and 2), one charge of aggravated burglary (charge 3), and one charge of threat to inflict serious injury (charge 4). He was sentenced as follows:

2 The applicant, and Kaye Gale had been married for 21 years. They had lived together in Grassmere. In September 2012, Ms Gale left the applicant, and moved to Warrnambool.

3 Between September 2012 and October 2012 the applicant acquired various GPS tracking devices, and a listening device. On 9 September 2012, he installed two of the tracking devices and the listening device in Ms Gale's vehicle.

4 On 19 October 2012, the applicant affixed a third tracking device to the inside of the rear bumper of a vehicle owned by Darren Edgell with whom Ms Gale had by that stage commenced a relationship. Ms Gale and Mr Edgell were each at that time undergoing a placement at the Casterton Memorial Hospital.

5 In the early part of October 2012, the applicant sent a series of text messages to Ms Gale urging her to meet him. He also began to follow her, and accessed her mobile telephone records and university computer account. This behaviour led to Ms Gale seeking an intervention order. That application resulted in the applicant signing an undertaking, on 19 October 2012, that he would desist from such conduct. The undertaking stated that he would not follow Ms Gale, or keep her under surveillance, or approach within five metres of her. The applicant signed the undertaking on the same day that he affixed the tracking device to Mr Edgell's vehicle.

6 A week or so later, the applicant, using one of the GPS tracking devices, located Ms Gale at an address in Casterton. At that time Mr Edgell was staying with Ms Gale.

7 At approximately 5:25am, on Sunday 28 October 2012, Ms Gale and Mr Edgell were asleep when they were awakened by the applicant who was standing at the foot of their bed, shining a torch in their faces. The applicant shouted a number of things at them including, 'you fucking cunts', and 'you cheating cunts'. In addition to the torch, the applicant had with him an orange cattle prod. He pulled the doona off the bed and started jerking the cattle prod towards Mr Edgell's leg.

8 Mr Edgell got out of the bed and confronted the applicant. The applicant continued to threaten Mr Edgell with the cattle prod while Ms Gale telephoned the police. Ms Gale did so in the applicant's presence, so it was clear that he was well aware that the police had been called to the house. At one point during the incident, the applicant told Ms Gale that she would never see her children again. Shortly thereafter, the applicant turned and walked out. The entire incident lasted less than 5 minutes.

9 Police arrived at the scene. While they were present, the applicant sent a text message to Mr Edgell. It read:

Happy birthday for yesterday you motherfucker fuck with me or my family I will fuck you up tell Keith there is ways this problem could go away you ducking dirty scantly fuckin mole do you think I'm stupid ring police and I will tell the kids and your family wonder how you could lie your way out of that [sic].[1]

10 It was that threat, and in particular, the words 'I will fuck you up', which formed the basis for the charge of making a threat to inflict serious injury.

11 Later that day police located tracking devices in both Ms Gale's and Mr Edgell's vehicles. Those devices were seized. Police also ascertained that the applicant had entered the address via an unlocked window at the rear of the property.

12 The following day police attended at the applicant's home and arrested him. He was interviewed, and agreed to police searching his house. During the search police found two empty GPS tracking device boxes, along with various other surveillance equipment, a laptop computer and an orange battery powered cattle prod.

13 The applicant was again interviewed and this time made full admissions.

14 On 31 October 2012, Ms Gale located a further GPS tracking device, and a listening device hidden under the steering column of her car. They were wired to the vehicle's fuse box.

15 After setting out the circumstances surrounding the commission of these offences, the judge noted that the applicant's conduct had resulted in significant psychological problems for each of his victims. Ms Gale was suffering from an acute stress disorder as well as a major depressive disorder. The evidence was that these conditions were directly linked to the applicant's threat to her safety. Ms Gale had been unable to find alternative accommodation, and so continued to reside in the same general area that the applicant did. She was said to be 'hyper-vigilant'. She was afraid to walk home after night shifts. She had nightmares and slept with a knife next to her bed. Her quality of life had been seriously impacted. She was constantly fearful and on medication. She had become withdrawn and lacked motivation.

16 As a result of the break in on the morning of 28 October 2012, Mr Edgell now had trouble falling asleep. He too had become overly security conscious at home and had had to seek medical and psychological assistance. He had been prescribed valium to assist him in remaining calm.

17 The judge described the applicant's offending as 'reprehensible'. Viewed globally, it had continued for a period of almost seven weeks, and had culminated in a 'serious example' of a 'very serious' offence, namely aggravated burglary. His Honour referred to relevant Court of Appeal authority regarding sentencing for that offence.[2] He noted that the burglary had been planned, and not committed on the spur of the moment. The applicant had selected that date in order to maximise the chances of finding the two victims together, it being Mr Edgell's birthday.[3]

18 The aggravated burglary had been committed in private residential premises. It took place in darkness. The applicant had invaded his estranged wife's home with the express purpose of committing an assault upon her and her partner at least to the extent of putting them in great fear. He had been armed with a cattle prod. He must have known, before he broke into the premises, that Ms Gale was already in a heightened state of concern as a result of his having stalked her in the weeks leading up to the commission of the burglary. His conduct had resulted in significant psychological trauma to each of his victims. Moreover, he had directly contravened a sworn undertaking given only nine days earlier.

19 The judge took the view that the two offences of stalking were 'relatively serious' examples of their type, particularly that involving Ms Gale. He also considered the offence of threatening to inflict serious injury to be of similar gravity. As his Honour put it, the applicant would have appreciated that his threat to 'fuck you up' would have an added impact upon Mr Edgell because of the applicant's behaviour towards him in Ms Gale's bedroom only a short time earlier. He added that the threat had been made in a context where the applicant had been endeavouring to dissuade Mr Edgell from going to the police about what had occurred earlier that morning. As will be seen, that last observation was challenged on the basis that the applicant was fully aware, when he sent the text message, that the police had already become involved by reason of Ms Gale's telephone call to them in his presence.

20 The judge then summarised the applicant's personal circumstances. He noted that the applicant was aged 44 at the time of sentencing. He had worked on the family farm until 1987 when, together with his brother, he had acquired a property of some 1,000 acres, upon which 800 head of cattle were kept. He had worked long hours at the farm.

21 The applicant left that farm in 2007 and leased a smaller one in Grassmere. He had suffered a back injury which then prevented him from continuing to perform the demanding physical work that farming entailed. In October 2010, the applicant began seasonal work as a tanker driver.

22 His Honour then outlined the applicant's relationship with Ms Gale, noting that there were four children from their relationship, two daughters and two sons. The applicant had little contact with his eldest daughter, but regular contact with the younger daughter who was undergoing university studies in Melbourne. He provided her with financial support. His two sons were then living with the applicant, the elder son was undertaking an apprenticeship, while the younger son was in year 9 at secondary school. It was uncertain what would happen to him in the event that the applicant was imprisoned.

23 The judge referred to a report prepared by a forensic psychologist, Ian Joblin. His Honour said the following:

Mr Joblin assessed you as a man of reasonable intellect and insight. He believes you are now aware of the seriousness of the offences that you committed and he detected no attempt by you to minimise the gravity of your offending conduct.

In [Mr Joblin's] opinion, your offending was not representative of ongoing or continuing psychological issues to do with violence or aggression. You do not use drugs or abuse alcohol. In Mr Joblin's view, you do not have an antisocial personality. Rather, the offending occurred in a particular context. You had become distressed by the way things unfolded during 2012. You wanted clarification about the situation between Ms Gale and Mr Edgell. He concluded that your drive to confirm your suspicions about that relationship was so intense that it overrode any consideration of breaching the undertaking that you had given to abide by the conditions of an intervention order. In his view, the psychological basis for the offending was your extreme disappointment over the loss of your wife. It was based on a very strong desire to clarify the situation rather than out of a desire to punish Ms Gale and Mr Edgell. I accept that analysis, but only up to a point. In my view, you were clearly upset and angry about the prospect of Ms Gale being in a new relationship. The very nature of the offences that you committed, evidence a degree of aggression and hostility on your part towards the two victims. That is particularly so in respect of the offences the subject of charges 3 and 4. You intended to place each of them in imminent fear of being physically assaulted when you entered Ms Gale's home, and you intended that Mr Edgell would believe that you were going to seriously injure him when you threatened him a short time after you left Ms Gale's home.[4]

24 There was positive and strong character evidence led on the plea, including, it is interesting to note, a reference from Ms Gale's stepfather who considered the applicant to be polite, quiet and considerate. He described him as upset and ashamed of what he had done. In addition, the applicant had cooperated with investigating police and had made full admissions. He had pleaded guilty at the earliest reasonable opportunity. His Honour concluded that the applicant's conduct had been out of character, and that his prospects of rehabilitation were 'very good'. However, as against these mitigating factors, great weight had to be accorded to the observations of the Court of Appeal in Hogarth v The Queen[5] in fixing the sentence for aggravated burglary. He then sentenced the applicant as set out earlier in these reasons for judgment.

25 The applicant sought leave to appeal against both conviction and sentence. He did so despite the fact that he had pleaded guilty to these four offences. Initially, he confined his challenge to the convictions on the two stalking charges, arguing that his conduct could not, as a matter of law, constitute stalking because it had never been his intent to cause any threat or harm to either victim. Indeed, his argument was that the GPS tracking devices and the listening device had been concealed in such a way that their existence would be expected to remain undetected.

26 The applicant abandoned his challenge to the two convictions for stalking but, at the urging of the judge who heard the leave application, sought to resile from his plea of guilty, and conviction, on charge 4. He subsequently asserted that the expression 'fuck you up' could not, even when understood in context, constitute the actus reus of the offence of threatening to inflict serious injury. The applicant contended that the phrase was so imprecise, vague, ambiguous and uncertain that it fell short of what was required for the offence to be made out. Instead, the applicant submitted, the context in which the words were expressed was one of heightened anxiety and emotion. In those circumstances, the words amounted to no more than colourful language or heated words uttered whilst upset, rather than an actual threat to inflict serious injury.

27 With regard to sentence, the applicant challenged each of the individual sentences imposed, the total effective sentence and the non-parole period on the grounds that they were manifestly excessive and offended the principle of totality.

28 The gravamen of the applicant's submission with regard to the stalking charges was that the learned sentencing judge overvalued the seriousness of the offending. Counsel for the applicant submitted in oral argument that the objective gravity of these two offences was relatively low given that neither victim was aware of the existence of the tracking or listening devices, and the applicant had never intended them to suffer any distress by reason of the use of those devices.

29 With respect to the charge of aggravated burglary, the applicant submitted that the sentencing judge's categorisation of this offence as a 'serious example' of a 'very serious offence' placed the offence at too high a level. Counsel for the applicant relied on the fact that the purpose behind his entry into Ms Gale's premises was to cause fear, and not to inflict injury or physical harm. Moreover, the applicant was not a stranger to either of the victims, the entire incident occupied no more than five minutes, the applicant acted alone, and did not set out to gain any material benefit for himself.

30 Counsel referred to the sentencing judge's reliance on Hogarth as authority for the proposition that current sentencing for confrontational aggravated burglary fails to reflect the objective seriousness of this form of the offence, and that sentencing judges should no longer regard themselves as constrained by existing practice. He sought to distinguish Hogarth on the facts and noted, in the written case, that the applicant committed the aggravated burglary prior to the decision in Hogarth having been delivered.

31 The applicant further submitted that the sentencing judge made an error in a finding of fact when sentencing on charge 4 by concluding that the threat to inflict serious injury was made in a context where the applicant was attempting to dissuade Mr Edgell from going to the police about what had occurred earlier that morning. The applicant argued that this finding went beyond the facts agreed between the parties, and was plainly erroneous given that it was common ground that Ms Gale had telephoned the police in the applicant's presence while he was still in the bedroom.

32 Finally, the applicant submitted that the sentencing judge erred with regard to the orders for cumulation in that excessive periods of imprisonment on charges 1, 2 and 4 were ordered to be served cumulatively upon the sentence imposed on charge 3.

33 In relation to the proposed challenge to the conviction on charge 4, the Crown submitted that the text message, the subject of that charge, was capable of amounting to a threat to inflict serious injury. The Crown accepted that this might not be so if the relevant phrase, 'I will fuck you up', were viewed in isolation. However, that phrase took on an entirely different complexion when regard was had to the relationship between the parties, and the events immediately leading up to the sending of the text. The phrase, according to the Crown, when viewed in light of the applicant's 'aggressive' and 'extreme' conduct against the two victims, was well open to be taken to constitute a threat of serious injury.

34 Prior to the hearing of this matter, the Crown conceded, in its further revised written submissions, that the sentence imposed on each of the individual charges was manifestly excessive. Counsel repeated that concession in oral argument, making it clear that it extended to the orders for cumulation, the total effective sentence, and the non-parole period.

35 We would refuse the applicant leave to appeal against conviction.

36 If viewed in isolation, the phrase 'I will fuck you up' lacks precision, and could not possibly form a proper basis for a charge of threat to inflict serious injury. However, that phrase takes on a different complexion when considered in light of the circumstances surrounding the applicant's offending. He had, less than an hour before sending the text to Mr Edgell, broken into his estranged partner's home, under cover of darkness, wielding a cattle prod. Irrespective of whether the threat was made in order to dissuade the recipient of the text from going to the police, one cannot ignore the fact that the text was sent as part of a course of conduct that involved stalking and the commission of an aggravated burglary.

37 Additionally, when asked by police about the meaning of 'fuck with me or my family, I will fuck you up', the applicant said 'well, I was bluffing that I'd - if he come around I will belt - belt him, I suppose'. That admission, in our view, adds credence to the finding that the applicant intended the complainant to fear that the threat would be carried out.

38 We accept the Crown's concession that some of the sentences and orders for cumulation were outside the permissible range.[6] From this it follows that the sentencing discretion is re-opened. We would accordingly grant the applicant leave to appeal against his sentence, and allow that appeal.

39 The sentences imposed on charges 1 and 2 are, in our view, outside the range of sentences reasonably available for offending of this character. While the applicant's conduct was reprehensible, and involved a high degree of moral culpability, it did not warrant sentences of 18 months and nine months respectively. Primarily, that is because the applicant never, at any stage, intended either of his victims to discover that he had been tracking their whereabouts, or in the case of Ms Gale, listening in to her conversations in her car. Accordingly, he neither anticipated, nor intended, any physical or mental harm to his victims. The fact that things did not work out as he planned, and his actions ultimately came to light, led to their suffering a measure of distress. It would be difficult to disentangle how much of that distress stemmed from the use of the devices, and how much from the aggravated burglary. On any view, it was necessary to avoid double punishment. We would resentence the applicant to nine months' imprisonment on charge 1 and three months' imprisonment on charge 2.

40 Despite the Crown's concession that the sentence on charge 3 was manifestly excessive, we consider that the sentence of three years and six months for the aggravated burglary was within range. The applicant has not satisfied this Court that a departure from the principles laid down in Hogarth is warranted. This was a serious example of what might be described as 'intimate-partner' aggravated burglary. It could easily have had catastrophic consequences. The applicant broke into his ex-partner's home armed with a cattle prod, intending to confront its sleeping occupants, in breach of an undertaking given nine days earlier. These types of incidents all too often conclude with a tragic outcome. General deterrence is paramount. Specific deterrence also needs to be accorded considerable weight, particularly in light of the applicant's breach of the undertaking. Society demands that behaviour such as this be punished severely. We would therefore affirm the sentence imposed by the sentencing judge in relation to charge 3.

41 In relation to charge 4, we consider that the sentence imposed was outside the range reasonably available. Of course, any threat to inflict serious injury deserves strong condemnation. However, in light of the applicant's emotional state, and the surrounding circumstances, we would reduce the sentence imposed on this charge to one months' imprisonment.

42 We would make the following orders for cumulation. The base sentence is three years and six months for charge 3. Three months of the sentence on charge 1 and one month of the sentence on charge 2 are to be cumulated upon the sentence imposed on charge 3. The sentence on charge 4 is to be wholly concurrent. This makes a total effective sentence of three years and 10 months' imprisonment. We would fix a non-parole period of one year and 10 months.

43 We would declare, pursuant to s 6AAA of the Sentencing Act 1991, that but for the applicant's plea of guilty, we would have imposed a total effective sentence of five years' imprisonment with a non-parole period of three years.

[1] The reference to 'Keith' was a pet name used by the applicant when referring to Ms Gale.

[2] Maurice v The Queen [2011] VSCA 197; Denman v The Queen [2012] VSCA 261.

[3] During oral argument before this Court, it became apparent that Ms Gale had left the applicant on his birthday, further explaining why the applicant had chosen that particular date.

[5] [2012] VSCA 302 ('Hogarth').

[6] That concession is to some extent borne out by reference to two recent decisions of this Court concerning sentencing for the offence of stalking. In Smith v The Queen [2013] VSCA 219 a sentence of 18 months (with 12 months' cumulation on other charges) for stalking was described as 'stern'. The act of stalking took place in close connection with the wanton destruction of the victim's flat and her belongings in circumstances that were truly appalling. In Wilson v The Queen [2012] VSCA 40, the applicant received sentences of 10 months, three months and six months on each of three separate charges of stalking. He accessed photographs of two women online from various networking websites, and posted them on pornographic sites, some of which were based overseas. He made it seem as though the women were featured in the sites themselves. Whatever view may be taken of the objective gravity of that offending, the sentences imposed were far lower than the 18 months imposed on one of the stalking charges in the present case.

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