Sentence set aside and sentence of 18 months imprisonment substituted, to be partly concurrent and partly cumulative with sentence imposed by Fenbury DCJ on 14 September 2000

1 ROBERTS-SMITH J: On 3 August 2000 the respondent pleaded guilty to a charge on indictment and was convicted of the offence that on 13 January 2000 he made a threat to unlawfully kill Susan Patricia Morley, contrary to s 338B of the Criminal Code (WA). On 14 September 2000, he was sentenced by Fenbury DCJ to imprisonment for 2-1/2 years backdated to 29 August 2000 with eligibility for parole in respect of that offence.

2 On 20 May 2000 the respondent was charged on complaint with an offence that between 22 March and 19 May 2000 he stalked M S Morley with intent to cause fear, in circumstances of aggravation, contrary to s 338E(1)(c) of the Criminal Code.

3 The respondent pleaded guilty to that charge before Mr Burton SM in the Perth Court of Petty Sessions on 26 September 2000 and was sentenced to 12 months imprisonment backdated to 20 May 2000. The sentence was ordered to be served concurrently with the sentence imposed by Fenbury DCJ on 14 September 2000.

4 By order made 1 November 2000, Hasluck J gave the appellant leave to appeal against the decision of the learned Magistrate on the grounds that:

"(1) the learned sentencing Magistrate erred in ordering that the sentence be served concurrently with the sentence of 2-1/2 years imprisonment imposed by Fenbury DCJ in circumstances where the offences were entirely separate and the totality principle did not otherwise require concurrency; and

(2) the learned sentencing Magistrate erred in that the total effective sentence imposed was manifestly inadequate in all the circumstances of the case."

5 In addition to the material contained in the appeal book, I also had before me on the hearing of this appeal, a copy of the pre-sentence report in respect of the respondent dated 11 September 2000, a copy of a psychological report dated 29 August 2000 and a copy of a victim impact statement from the complainant dated 26 September 2000.

6 The proceedings before the learned Magistrate on 26 September last year were somewhat confusing. The appeal book does not contain the transcript of the actual plea by the respondent, but shows his Worship being addressed first by his counsel Mr Palumbo. The circumstances as he described them were in substance that the respondent was 49 years of age and had been involved with the complainant, Ms Morley, over a period of some three years. Mr Palumbo told his Worship it was still not known whether during that time of their relationship she was married, separated or divorced. He did say that during the relationship they had what could probably be termed differences and disagreements. He said that according to his instructions, the relationship was soured by the complainant's constant changes in mood and the manner in which she approached the relationship. He put it that one minute she wanted to be with the respondent and the next minute she did not. He said this confused the respondent and led to the problems they had in the relationship. At one stage there was an incident where he went to her premises and made certain threats to kill. They had been the subject of a charge in the District Court to which the respondent had pleaded guilty and been sentenced to 2-1/2 years imprisonment, backdated to 29 August by Fenbury DCJ.

7 Mr Palumbo told the learned Magistrate that having been charged with those offences, the respondent was given bail on conditions which included that he not contact the complainant. However, during the term of his bail, the relationship or contact between the two of them resumed. Mr Palumbo foreshadowed that the complainant would say that was as a result of intimidation, threats and fears, but he submitted that there was evidence to suggest otherwise. He asserted that during that time Ms Morley visited the respondent in the remand centre and apparently resumed the relationship with the respondent. He said that in any event, as a result of a number of telephone calls made to the complainant, the respondent in fact breached the conditions of his bail and that led to him being arrested and charged with the present offence of unlawful striking which was aggravated by the fact that he was on bail for the previous offences at the time.

8 Mr Palumbo said that it was only about May that the complainant decided that she no longer wanted to have anything to do with the respondent and pressed the present charge, but for a period of some four or five months between January (when he was charged in relation to the District Court matter) and May, nothing was said nor done in relation to the stalking matter. He said that basically the complainant had made allegations that she was afraid and intimidated and visited the respondent at the remand centre every day for 16 days (and on some occasions twice a day) because she was afraid of him and what he would do to her. Mr Palumbo put to his Worship that any intelligent person would ask themselves first of all why she would do that - and in particular visit him daily between 6 and 19 June - and "what miracle took place" after 19 June which alleviated her fears to such an extent that she was no longer afraid and was able to stop visiting him.

9 Mr Palumbo then made some brief reference to the respondent's personal circumstances and background and then reiterated that at the time of the commission of the stalking offence, he was effectively acting in a way which he believed was simply one of reconciling the relationship and following a course which had in fact been initiated by the complainant. He put to the learned Magistrate that the respondent admitted making the ongoing telephone calls, admitted contacting the complainant and admitted that he spoke to her about withdrawing the charges but said that the idea that the complainant would be withdrawing the charges was one which had been initiated by the complainant. Counsel conceded that the proper disposition was a term of imprisonment and submitted the only question was whether it should be concurrent or cumulative. He also pointed out that the respondent had been arrested in respect of the stalking matter on 20 May and had been in custody since then in respect of the stalking charge and so had effectively been in custody for some four months at that time.

10 To that point it seems from the material before me, that nothing had been heard from the prosecution in relation to the facts of the matter at that stage.

11 Counsel who appeared on behalf of the prosecution began by pointing out that the statutory maximum penalty for the offence on summary conviction was two years imprisonment or a fine of $8000.

12 She submitted that it was necessary to consider the course of events chronologically as there was a considerable history between the complainant and the respondent. The matters as she outlined them to the court were as follows.

13 On 13 January 2000 the respondent was arrested on the charge of threatening to kill Ms Morley. He was released to bail, one of the conditions of which was that he have no contact nor communication with her. In fact, however, between 1 February and 19 May 2000, he made some 960 telephone calls to her on her mobile telephone at work and at home. Counsel said that contrary to Mr Palumbo's submission, these calls were not for reconciliation, but constituted harassment and intimidation of the complainant. A number of those calls were for the purpose of causing her to withdraw the charge of threatening to kill. She pointed out that not only did the telephone calls constitute the offence of aggravated stalking but stalking of a Crown witness and constituted a breach of the respondent's bail conditions. The submission therefore was that the offence of aggravated stalking contained the flavour of an attempt to divert proceedings from their normal course and this sort of behaviour in relation to the stalking of a Crown witness must be vehemently discouraged and treated as being very serious.

14 It was put that the complainant was concerned for her safety and eventually approached a lawyer in the Office of the Director of Public Prosecutions and asked whether the charge of threatening to kill could be withdrawn because she was frightened of what would happen if she did not withdraw it. It was only in the course of the lawyer discussing this with the complainant that the respondent's threats came to light, as a result of which the complaint then before the court had been laid.

15 As to why the complainant who was clearly fearful for her own safety and her life should be visiting the respondent in prison, counsel made some broad reference to "battered women's syndrome...where the questions are always asked as to why did she go back to him" (AB 66) but did not elaborate further. She did however, make some reference to three other matters of attempting to procure the wilful murder of the complainant. She said there were three charges and the third of those occurred on 17 August which was after the respondent pleaded guilty to the charge of threatening to kill her and whilst he was in custody on the stalking charge. The point was, she said, there was a pattern here: "It's not a one-off". The reference to those three other charges of which his Worship appeared to have been aware, was so far as I can discern from the materials before me, a reference to three charges which had been before his Worship at the beginning of the proceedings and which he had remanded to an election dated on 20 November. There was some passing reference to these matters in the transcript of the hearing before Fenbury DCJ, but that was not before the learned Magistrate.

16 Counsel for the prosecution then referred to the respondent's criminal history, which she pointed out included 11 breaches of a violence restraining order on another complainant and two threats to kill another complainant. She submitted there was lack of remorse and as was indicated by the pre-sentence and psychological reports, also a lack of insight. The prosecution's submission was that the sentence should be cumulative.

17 Mr Palumbo then made further submissions to the court. He submitted that each one of the 11 violence restraining order breaches was constituted by a single telephone call - that is there were 11 telephone calls and so 11 breaches.

18 As to the three pending charges, he submitted that it was not appropriate to take into account charges of offences of which the respondent had not been convicted. The main thrust of his submissions however, was that regard must be had to the totality principle and that if any additional sentence was made cumulative on the 2-1/2 year sentence the respondent was already serving, the total would be excessive and amount to a disproportionate sentence.

19 The learned Magistrate's sentencing remarks were brief. I set them out in full as follows (AB 72):

"HIS WORSHIP: I give my reasons for imposing a term of imprisonment, which is inevitable. I'm limited to 2 years imprisonment under the Act. That's all that - - that's the maximum I can impose.

It's a relationship with a woman who is his de facto, or who he's having a relationship with. He's in prison for 2 and a half years. He's eligible for parole on another matter. I've read the victim impact statement and that introduces material which is relevant to the other matters as well, I feel. There's no doubt at all that the complaint has suffered, and suffered fairly extensively.

There are - - you've been in custody since the 20th of May 2000 in relation to this matter. The other charges that are before me, were only laid on the 1st of September 2000. That's tantamount to 5 months. The question is, the proper length of imprisonment and when that should start from and when - - whether you're eligible for parole.

I think in all the circumstances that 12 months imprisonment. 12 months imprisonment. It's backdated to the 20th of May, I'm told is the date there. And the other matter is - - because of the fact I'm limited to 2 years, I'll make you eligible for parole. Eligible for parole. Yes; thank you. That deals with that matter, thanks.

MR PALUMBO: Sir, was that cumulative or concurrent?

HIS WORSHIP: That's got to be concurrent. Yes; thank you."

20 The respondent comes from Romania. He has three convictions for theft and one for fraud committed between 1969 and 1978 when he was aged between 18 and 29 years and in respect of each of which he was sentenced to terms of imprisonment, the longest being a term of 4 years imprisonment. Shortly after arriving in Australia he was convicted on two offences of assault occasioning bodily harm for which he was fined $100 and $500 respectively. Then followed convictions for a number of other relatively minor driving and other offences until in August 1994 he was convicted in the District Court of one count of stealing with violence and two counts of threatening to kill or injure in respect of each of which he was released on a $1000 good behaviour bond for 12 months. The Crown appealed against that sentence and on 24 March 1995, the Court of Criminal Appeal quashed those orders and substituted sentences of 6 months imprisonment for each of the offences of threatening unlawfully to kill and 12 months imprisonment for the offence of robbery. One of the 6 month sentences was made cumulative on that of 12 months, giving an aggregate sentence of 18 months imprisonment.

21 On 5 June 1998 the respondent was convicted in the Court of Petty Sessions of 11 breaches of a violence restraining order and ordered to undertake 100 hours of community work.

22 The circumstances of the August 1994 convictions were put before Fenbury DCJ in the District Court on 14 September 2000. They may be found in the judgment of Rowland J in the Court of Criminal Appeal (R v Leucus, unreported; CCA SCt of WA; Library No 950130; 24 March 1995). The first count was for an offence on 12 December 1992. The respondent was trying to reverse his car and trailer into the driveway of the house in which he lived with that complainant (not Ms Morley). The complainant's vehicle was apparently blocking the driveway and he called her to move it. She did not respond as quickly as he wished and he swore at her and threatened to kill if she did not move the car immediately. The complainant was frightened and moved the car and drove off. The second offence of which he was convicted was that on 14 December 1992, he stole from her with actual violence, a cheque for $10,000. He and that complainant had been living in an intimate relationship for some time. Earlier the respondent had lent the complainant $14,000 as a deposit on a house she was purchasing in Canada. There was some dispute about whether or not she had in fact repaid him $5000 of that in addition to $4000 repaid earlier. On 14 December he followed her in his car to a petrol station where she was refuelling, grabbed hold of her, dragged her to the ground and demanded that she write him a cheque for $10,000 which she did. Witnesses testified that she appeared to be terrified and wanted someone to call the police. The third offence related to a threat to kill a police officer in January 1993. It occurred after the respondent had been in a video interview with police officers in which he was questioned in relation to the complaints made by the complainant. After the interview was completed, the officer told the respondent he was to be arrested for the charges made by the complainant. The respondent then threatened that if the officer did anything bad to him, he would do something bad to the officer and when asked to explain what he meant, said that the officer did not know who he was, he had contacts with the Mafia and would kill him for this. From the manner in which they were delivered, the police officer took the threats to be serious.

23 Some of the remarks made by their Honours on that appeal, are apposite to the way in which the facts and pleas were presented to the learned Magistrate in respect of the stalking offence.

"...the offences involving [the complainant] were committed against a domestic background; but, with justifiable rising community concern with respect to domestic violence, this factor does not in any way diminish the seriousness of the offences. They cannot be regarded as being only the concern of the two individuals involved."

"I am of the view that a custodial sentence was required to deter the respondent and others from resolving what the learned trial Judge characterised as 'interpersonal relationships' with violence and threats of violence. These were not the only occasions on which the respondent had resorted to violence in an endeavour to resolve his problems."

"the learned trial Judge has placed too much emphasis, in my respectful opinion, on the relationship between the parties when considering the unusual circumstances of these offences. There can be no doubt that, in matters of this nature, complex and difficult problems arise. It is, however, necessary to ensure that the courts are seen to provide both protection to the victims and a message to others that conduct of this sort can and will be dealt with in the criminal courts."

26 The offence to which the respondent pleaded guilty before Fenbury DCJ was also committed against Ms Morley. The respondent arrived at her work premises at approximately 11.15 pm on 13 January 2000, knocked on the door and attempted to engage her in conversation by calling out to her. She refused to answer the door and went to the rear of the premises. The respondent then went around to the rear where her office was located and began to call out to her again. When she continued to refuse to answer, he began shouting and making threats stating that he was going to kill her. She called out that she telephoned the police and he eventually left the premises. The police arrived and whilst they were there the respondent telephoned the complainant and threatened her over the telephone. His Honour took the view that those facts disclosed a serious offence of its kind, looked at in isolation without any other matters. It was a sustained course of conduct. He was outside her workplace at night and giving every indication of having a desire to do what he was threatening to do, namely to kill her.

27 The author of the pre-sentence report noted that:

"... Leucus has an escalating pattern of violent offending which targets women. He has shown no remorse or empathy for his victims but instead sees himself as a victim."

28 The psychological report concludes with the following observations:

"I consider the responses supplied by Mr Leucus during his assessment to have been defensive and incomplete. The discrepancy between his version of events and those in the police statements does not appear to stem from memory deficits, but from a desire to minimise responsibility and convey a positive image of himself.

On the basis of the police information and his presentation at interview, it is concluded that Mr Leucus manifests periodic emotional instability stemming from a narcissistic personality style. Such individuals have suffered from a lack of admiration in their formative years which predisposes them to seek admiration in later life. Because they have fragile egos, these individuals are highly prone to distress when their sense of pride is injured by life stresses. At such times their behaviour can become disorganised. Their resultant behaviour reflects attempts to restore a sense of pride and esteem, and can involve personal attacks on others who are perceived as injuring them. In the present case, it appears that the thwarting of his need for admiration, by a slight or rejection, can trigger emotional instability and verbal aggression. The fragility manifested by such individuals is a personality feature, which is not readily ameliorated. Their pattern of coping is unlikely to alter in the absence of insight and the undertaking of significant personal therapeutic work. Mr Leucus is not a suitable candidate for psychological counselling on account of his defensiveness and unwillingness to accept responsibility for his behaviour."

29 Logically, it is necessary to consider first the ground of appeal that the sentence of 12 months imprisonment was manifestly inadequate.

30 The appellant accepts that the well-established principles relating to Crown appeals against sentence, as articulated in R v Grein [1989] WAR 178 at 179-180 per Malcolm CJ, apply to appeals by the prosecution against sentence imposed in a court of summary jurisdiction and I approach the determination of this appeal accordingly.

31 The circumstance that the respondent's conduct constituted a breach of his conditions of bail is a circumstance of aggravation for the purposes of this offence. I consider the offence falls within the category of the worst of its kind. The 960 or so telephone calls represented a sustained, determined and deliberate campaign to intimidate and threaten the complainant over almost two months commencing shortly after he had been released to bail in respect of an offence of threatening to kill the same complainant. The respondent's conduct clearly shows a pattern of aggressive behaviour towards women and in particular women who are, or have been in a domestic or sexual relationship with him and a contempt for the authority of the court and the justice system. The respondent shows no remorse, has little insight into his behaviour, has little or no ability (nor apparently a desire) to control his aggression and violence and is unlikely to benefit from any therapeutic work. The respondent's stalking behaviour very nearly produced the result it was designed to achieve - the complainant was intimidated and actively sought to withdraw the charge of threatening to kill and it was only in the course of her attempt to do so that this offence came to light. The effect on the victim has been profound. The circumstances of this offence dictate quite clearly to my mind that considerations of personal and general deterrence ought to have taken priority. In the circumstances, I would have thought the imposition of the maximum sentence of 2 years imprisonment was well warranted. It follows that I consider the sentence imposed by the learned Magistrate was manifestly inadequate and must be set aside. Rather than remit the matter to his Worship, I see no reason why I should not substitute the sentence which ought to have been imposed. However, I am mindful of the constraints ordinarily applied on a Crown appeal and for that reason only, would impose a sentence of 18 months imprisonment.

32 I also uphold the appellant's other ground of appeal that the sentences should not have been concurrent.

33 The principle was stated by Malcolm CJ in Ward [1999] WASCA 157; (1999) 109 A Crim R 159 at 160-161 where his Honour said:

"While it is appropriate to order that a number of offences arise out of the same transaction may justify concurrent sentences, where the offences occur on quite separate occasions and involve quite separate transactions, then unless the totality principle would require some other approach the sentences should be imposed cumulatively: Ruane (1979) 1 A Crim R 284 per Wallace J at 286; Shaw (1989) 39 A Crim R 343 at 347 per Brinsden J; and Van Thong Dao (unreported, Court of Criminal Appeal, WA, No 106 of 1998, 22 January 1999) per Murray J at pp 15-16."

34 His Honour concluded that was not a case in which there was any room for the application of the totality principle but was rather one in which the sentencing principles demanded that the sentences imposed be made cumulative upon each other. I take the same view of the present case. Although there was clearly some underlying factual relationship between the two offences, they were otherwise entirely separate and distinct transactions and the very nature and purpose of the stalking offence dictated that it should attract cumulative punishment. Insofar as the question of totality is concerned, and taking into account (as I have done in setting the term of imprisonment) the fact that the respondent had already served 4 months in custody prior to his sentencing by the learned Magistrate, I consider the proper way in which that should be recognised is by making the term partly concurrent and partly cumulative. That will be achieved by making the cumulative portion of this sentence commence on the day on which the respondent would otherwise be eligible for release on parole in accordance with the sentence imposed by Fenbury DCJ on 14 September 2000. I have considered the question of parole. Notwithstanding the respondent's plea of guilty, which may I think be taken as no more than facing up to the inevitable, the circumstances of the offence and the respondent's antecedents lead to the conclusion that this is not a case in which he should be made eligible for parole and I would accordingly decline to make such an order.

35 The appeal will be allowed. The sentence imposed by the learned Magistrate will be set aside and a sentence of 18 months imprisonment substituted, such to be partly concurrent and partly cumulative with the sentence imposed by Fenbury DCJ on 14 September 2000, the concurrent portion to commence on 20 May 2000 and the cumulative portion to commence on the day on which the respondent would otherwise be eligible for release on parole in accordance with the sentence imposed in the District Court.