Henderson v McKenzie [2009] ACTSC 39

5. The conviction and sentence for the charge of stalking be set aside and the matter remitted to the Magistrates Court for rehearing, if the Director of Public Prosecutions deems that course appropriate.

1. On Friday, 28 November 2008, I dismissed appeals by the appellant which had sought to challenge his convictions for breaches of a protection order. The appellant had withdrawn those appeals. As a result, I confirmed the convictions and sentences. Those offences constituted breaches of an existing good behaviour order. I also dismissed the formal appeal against the finding that there had been such a contravention and in relation to extension of the term of the good behaviour order directed by the learned magistrate in response to that finding.

2. That left an appeal against a conviction for stalking which also, should it stand, breached the good behaviour order. Whether that breach is made out depends on the fate of the stalking charge.

3. I indicated I would set aside the conviction and sentence for stalking and remit the matter to the Magistrates Court for rehearing if the Director of Public Prosecutions (DPP) deems that course appropriate. I reserved my reasons. I now publish my reasons for that decision.

4. The charge alleged a contravention of s 35(1)(c) Crimes Act 1900 (ACT) (Crimes Act), that is, that:

... he, in the Australian Capital Territory, between 02 May, 2005 and 18 February, 2008, did stalk Kim Herbert with intent to harass a person, namely Kim Herbert.

35 Stalking

_(1) A person must not stalk someone with intent - _

...

(c) to harass the person stalked.

...

(2) For this section, a person stalks someone else (the stalked person) if, on at least 2 occasions, the person does 1 or more of the following:

(a) follows or approaches the stalked person;

(b) loiters near, watches, approaches or enters a place where the stalked person resides, works or visits;

(c) keeps the stalked person under surveillance;

(d) interferes with property in the possession of the stalked person;

(e) gives or sends offensive material to the stalked person or leaves offensive material where it is likely to be found by, given to or brought to the attention of, the stalked person;

(f) telephones, sends electronic messages to or otherwise contacts the stalked person; ("telephone" includes any telecommunication device - s 253(1) - Crimes Act)

(g) sends electronic messages about the stalked person to anybody else;

(h) makes electronic messages about the stalked person available to anybody else;

(i) acts covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person;

(j) engages in conduct amounting to intimidation, harassment or molestation of the stalked person (Criminal Code, s 13).

...

_(4) Without limiting subsection (1), a person is also taken to have the intent mentioned in the subsection if the person knows that, or is reckless about whether, stalking the other person would be likely - _

(a) to cause apprehension or fear of harm in the person stalked or someone else; or

(b) to harass the person stalked.

(5) In a prosecution for an offence against subsection (1), it is not necessary to prove that the person stalked or someone else apprehended or feared harm or that the person stalked was harassed.

(subsection 6 defines "harm").

6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary).

7. The present provision was introduced in the context of an associated amendment to the Domestic Violence Act 1986 (ACT)(as it then was). It came into effect on 10 July 1996. It was originally s 34A but was renumbered to s 35 in 2001.

8. It was clearly intended that conduct, whilst falling short of being a discrete criminal offence, should be punishable if engaged in repeatedly so as to cause, or be likely to cause, fear and alarm in a person, if the conduct is so engaged in by a person knowing or being recklessly indifferent to that consequence.

9. This matter was heard before Magistrate Madden on 3 and 11 June 2008. The appellant did not offer evidence. The learned magistrate, on 16 June 2008, found the offence of stalking (inter alia) proved.

10. His Honour was entitled to find, and did, that the appellant had engaged in conduct that the victim found extremely distressing. It was the basis for the protection order which was also breached. I summarise the facts his Honour found.

11. The events underlying all matters of complaint commenced about July 2002. From then up until May 2004, the complainant attended a fitness centre known as Bodyworks Fitness Club. The appellant was also a member. The complainant would, in that context, exchange greetings with the appellant. They did not otherwise communicate.

12. The complainant changed her fitness centre to Canberra International

Sports and Aquatic Centre (CISAC) in May 2004. Thereafter, up until 2005, there were occasional meetings of a fleeting character between the appellant and the complainant. There was, objectively, nothing to indicate to the appellant that any contact with the appellant was being encouraged by the complainant.

13. In June 2005, the complainant began to receive text messages on her mobile phone, apparently from the appellant. The frequency increased. How the appellant obtained the complainant's number was not clear, though in one text message he said (6/9/05:1651) "I still don't understand why you gave me your number ..." There were 38 text messages between 21 June 2005 and 23 December 2005.

14. It was not until 23 December 2005 that the complainant referred the text messages to police complaining of harassment. As advised by police, she sent the appellant a request not to continue texting. He replied:

Sorry, I wont contact u again I promise. Im not stalking u I just saw your car by accident. I won't go to the gym anymore. Sorry I should have stopped before but I couldn't.

15. The messages were generally indicative of the fact that the appellant had a romantic obsession with the complainant. Disturbingly, they also indicated that he was from time to time keeping her under surveillance.

16. On 23 December 2005 the appellant had sent a message to the complainant, referring to a Christmas card, the complainant found a card under her windscreen wipers. She took it to police. It contained a message, "I wanted to get you something expensive and sexy for Christmas" (on the outer cover), inside, "ME" and "Love Paul".

17. She was advised to send, and did, a text message, to wit, "please do not contact me again". It was to that message that the appellant responded, as set out above, promising not to contact her again.

18. There was no contact after that until 8 March 2006. The appellant and complainant were then both, coincidentally it seems, at a musical event at "The Green Room", a venue in Phillip, ACT. The appellant approached the complainant after staring in her direction for some time. He touched her arm but she moved away. Later, the appellant followed the complainant and her male companion down the stairs, the complainant heard the appellant say, "Are you going to leave with him? Fine leave with him, I don't care what you do". She was concerned that the appellant might push her, though he did not, in fact, do so.

19. That incident led the complainant to consult police again.

20. Then, on 6 February 2007, a florist contacted the complainant concerning a large delivery of flowers from "Paul Henderson". She declined to accept delivery and suggested they be delivered to Calvary Hospital. The value of the flowers was $1,000.00.

21. It was a month later that the complainant obtained a protection order.

22. She also took steps to be less easily contactable.

23. A further contact occurred on 11 February 2007. A text message was received by her saying, "Is that you Kimi, Paul.". That appeared to have been prompted by a message to the appellant, though not from the complainant. Perhaps it was a 'no number' missed call that he assumed came from her.

24. There was no further direct contact. However, police advised the complainant, on 20 March 2007, to contact Canberra FM. She did so and was informed that the appellant had sent, as she deposed:

... hundreds of text messages to the public text message line of Canberra FM and the messages were offensive and they threatened staff. They made repeated references to a Kim and Kimmy. They told me that he'd actually been to the radio station on a number of occasions and demanded to see me...

25. The appellant had also, at about this time, collided with a Canberra FM vehicle and called the police. The complainant recognised the phone number for the text messages she was shown as that of the appellant. The appellant had attended Canberra FM asking for the complainant. She had no connection with Canberra FM. It appeared that the appellant believed that the complainant was speaking to him through the songs the station broadcast.

26. Thereafter the complainant obtained the protection order previous referred to. The appellant paid costs thereon, as ordered, in June 2007. In paying those costs, he left an engagement ring with the complainant's solicitor.

27. On 17 February 2008 he made contact again. It was indirect. The appellant had attended CISAC contrary to the terms of the protection order. He was arrested and charged with that breach (Charge 08/2231 - four months imprisonment imposed). He had also, at that time (14/02/08) delivered flowers to Canberra FM with a card on which was written "Kim, every second, every hour, every day, forever. Love, Paul". The flowers were from Gorman's Florist.

28. On 4 March 2008, the appellant, then in custody, applied for bail on the ground that he wished to spend the day with his "girlfriend". Apparently, this was a reference to the complainant.

29. I pause to observe that that application for bail, though clearly without merit, could not support a criminal charge. It was absolutely privileged from civil or criminal liability though it could, of course, be an abuse of process.

30. Some of the text messages sent to Canberra FM were seriously deranged but focussed on the complainant and the appellant's obsession with her. For example:

I want my Kimi. I need my Kimi. Death to all those that stop me from being with her. I'm going to wage war on all of you. I'm the son of man.

31. These messages were obtained by the complainant at her request. The fact that they had been sent made the complainant feel "overwhelmed, terrified, anxious".

33. In November 2007, the appellant apparently got a tattoo referring to "Kimi for Ever" in a stylised heart. While evidencing his obsession with the complainant it could not, of course, constitute stalking unless he drew it to the complainant's attention in some way.

34. On 17 February 2008, the appellant left a message at CISAC "To Kim" with a request that it be sent to her. This was part of the conduct breaching the protection order referred to above.

35. Constable Darren Rumberlow had attended the motor vehicle accident referred to above. Although the complainant was not otherwise connected with the accident of 20 March 2007, the appellant requested the constable to provide him with the complainant's phone number. This was in the context of the text messages and flowers left with Canberra FM. Naturally, he did not do so.

36. Constable Andrew McKenzie received a complaint from the complainant on 15 February 2008 concerning the text messages and flowers to Canberra FM. On 30 March 2008, he spoke to the appellant.

37. It was put to the appellant that he had breached the protection order by sending the flowers and card to Canberra FM. Further, it was alleged against the appellant that he attended CISAC on 17 February 2008. That was charged under 08/2231 (supra) as a breach of the protection order then in place.

38. The appellant had also registered his vehicle in Queensland with plates "KIM-575". This was the same as the complainant's NSW number. Again there is no evidence that he sought to communicate this to the complainant.

39. The conduct on 14 February 2008 was charged under 08/2136. A good behaviour order was imposed. That order was breached by the offence charged under 08/2231 but no action was taken by Magistrate Fryar in respect of that breach.

40. Magistrate Madden, on 16 June 2008, in dealing with the matters now under appeal concluded that the appellant had engaged in "relentless, constant, repetitive obsessive conduct" in relation to the complainant. That it was "unnecessary, inappropriate, unwanted, unsolicited attention", was an entirely apt conclusion for his Honour to come to as was his finding that the effect on the complainant was that she found it "disturbing".

41. His Honour referred to the "text messages, the flowers, the notes and the tattoo" as relevant conduct. It is apparent to me that, though text messages, the flowers and the notes might have been intended to come to the attention of the complainant, the tattoo could not be so characterised.

42. Nevertheless, on the issue raised by s 35(2)(j) Crimes Act, namely, whether the appellant had engaged in conduct, on at least two occasions, "amounting to ... harassment of the stalked person", his Honour found that proved and relevantly, that the element prescribed under s 35(1)(c), "intent ... to harass the person stalked" was satisfied. An alternative charge alleging intent to cause apprehension or fear of harm was dismissed.

43. It should be noted that stalking engages a maximum penalty of two years imprisonment unless it also contravenes a court order, such as a protection order. In that case, a penalty of five years is engaged. Of course the two cannot over-lap. Thus, if conduct is charged as breach of a protection order, it would be duplicitous for it also to form part of an allegation of stalking. That does not prevent, on a charge of stalking, evidence that the stalking behaviour breaches a protection order so as to engage the enhanced penalty.

44. It was submitted that the acts necessary to prove stalking were that "on at least two occasions the defendant has done one or more of the acts listed in [s 35(2)]".

45. His Honour, having recited the contacts direct and indirect from June 2005 up until February 2008, concluded, quite rightly, that the appellant's conduct over that time, amounted to harassment of the complainant. It clearly caused her considerable distress though that is not a necessary element of the offence.

46. There was no consideration by his Honour, however, of the issue of intent. It seems to me that his Honour must have assumed that, if the appellant intentionally performed the acts constituting harassment, then intent was made out.

47. If that is the correct test, that conclusion followed ineluctably. However, that is the issue.

48. On sentence, his Honour then received a mental health report.

49. The prosecution, incorrectly, as I have held, submitted that the Valentine's Day contacts could be both a breach of the protection order and part of the stalking behaviour. In a sense it might be thought to make little difference because the penalties available are much the same and could not validly be accumulated. Nevertheless, conviction in itself is a penalty. An election was required.

50. The offence of stalking differs from that of breaching a protection order, though the conduct may be identical (see, for example, Firestone v ANU [2004] ACTSC 76; (2004) 184 FLR 53 cf Longfield v Glover [2005] ACTSC 25; (2005) 191 FLR 332). In the case of breach of a protection order the offender need only knowingly engage in an act that breaches the order being aware of the terms of it. Whilst the offender must be proved to know of relevant circumstances making his or her conduct a breach of the order (eg, presence of the aggrieved person at a location being approached), it is not necessary to prove an intent to harass, intimidate or alarm the aggrieved person. It is necessary to prove such an intent in the case of stalking.

51. An intent to harass a person, being the intent here alleged, must, it seems to me, embrace an intent to cause annoyance, at the least, to the person subjected to the acts constituting the stalking in question. Subsection 35(4) Crimes Act includes, within the embrace of intent, recklessness as to whether the conduct engaged in would be "likely" to "harass the person stalked". Thus proof of either state of mind would support the relevant element of stalking.

52. In this case, the learned Magistrate did not address that issue. That it was a live issue is illustrated by the appellant's response to the complainant's objection to his continued text messages. He promised to cease and did so. His conduct in sending the messages to Canberra FM was explained by his bizarre delusion that he was receiving coded messages to contact her through that medium. That was, unless it be dismissed as a false statement, inconsistent with an intent to harass. His conduct in sending the flowers, the engagement ring and the card are, of course, whether they constituted harassment or not, consistent with an intent to persist in unwanted contact. The police interview is, similarly, capable of such a conclusion.

53. Given the issue was not addressed and that there was some evidence upon which a reasonable doubt might have been entertained, the conviction and sentence must be set aside and a new trial ordered.

54. I will hear the parties on that issue and costs.

55. There is a further consideration. On the sentencing proceedings, a report of Dr George, psychiatrist, was tendered. It is clear from this report that Dr George was concerned to explain the conduct of the appellant in breaching the protection order. He found no evidence of any mental dysfunction which would lessen the responsibility of the appellant for his actions in doing so. That report raises no reason to doubt that, generally, the appellant understands and is responsible for his actions and able to carry them out intentionally.

56. However, in exploring that question, Dr George did find that the appellant,

... presents with an element of what could best be described as erotomania. This is an irrational obsession with a member of the opposite sex, whereby, often, a relationship would be precluded in normal circumstances. This obsession can reach delusional intensity at times.

57. It is open to conclude that this condition affected the conduct of the appellant both in terms of his perception of the effect of his conduct and, in particular, whether it was unwelcome or not. The mere fact that he felt a compulsion to act as he did, if it constituted stalking, would not, of course, preclude a finding that the offence was proved. Nevertheless, that adds to the desirability of a new trial with a focus on the issue of intent.

58. It follows that the conviction and sentence for stalking must be set aside as I have already determined.

59. I will hear the parties to consequential orders beyond that proposed and costs.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Appellant: Diana Burns Solicitors

Solicitor for the Respondent: Director of Public Prosecutions (ACT)