Mattas v Hawke [2013] ACTSC 90

(2) the appellant was prohibited from contacting the complainant except by telephone in relation to his contact with their child.

3. At 2.37 pm on 26 December 2011 the complainant received a text message on her mobile telephone which read "call me slat". This text message emanated from mobile telephone number XXX which was a mobile telephone number used by the appellant.

4. At 5.26 pm on 27 December 2011 the complainant received another text message on her mobile telephone which read "call me slat". Again, this text message emanated from mobile telephone number XXX.

5. At about 7.00 pm on 27 December 2011 the complainant contacted police and reported her receipt of the text messages which she regarded as offensive.

6. At about 8.20 am on 29 December 2011 the appellant attended at the City Police Station in response to a request by police and he was arrested and, after being arrested, he was charged with having contravened the interim domestic violence order on 26 December 2011 and again on 27 December 2011.

7. On 1 February 2012 the appellant appeared before a magistrate in the Magistrates Court and he pleaded not guilty to both charges, and the proceedings were stood over to a date to be fixed for hearing.

8. Accordingly, on 3 August 2012 the appellant appeared before Magistrate Mossop for the hearing of the charges. Magistrate Mossop heard evidence from the complainant and Senior Constable Louise Hawke, who had spoken with the complainant on 27 December 2011, and who spoke with the appellant on 29 December 2011 after he had been arrested, and he received a copy of the interim domestic violence order, a photograph of the complainant's mobile telephone which showed the two text messages, and an IPND search, which showed that the registered holder of mobile telephone number XXX was Mr I B Matai. I note that the appellant did not give evidence or call any evidence before Magistrate Mossop.

9. After hearing submissions from the Crown prosecutor and the appellant's solicitor, Magistrate Mossop gave his judgment. He noted the rules which governed the hearing and that the Crown's case was a circumstantial evidence case. He noted that the appellant did not challenge the credibility of either of the witnesses. He reviewed at length the evidence. He noted the appellant's solicitor's submissions that the evidence did not prove beyond reasonable doubt that the appellant had sent the text messages to the complainant and that the word "slat" was not an offensive word. He concluded that the evidence proved beyond reasonable doubt that the appellant had sent the text messages and that those text messages were offensive. He gave detailed reasons for his conclusions. He found both charges to be proved and he convicted the appellant of each charge.

10. After finding the charges to be proved, Magistrate Mossop received the appellant's criminal record from the Crown prosecutor and he heard submissions from the Crown prosecutor and the appellant's solicitor as to sentence, after which he fined the appellant $400, ordered that the appellant pay the criminal injuries compensation levy of $50 and the victims service levy of $10, with 6 months to pay the fine and levies, and he ordered that the appellant be subject to a good behaviour order for 18 months for the first offence, and he made the same order, except for the criminal injuries compensation levy, for the second offence.

11. On 21 August 2012 the appellant's solicitor filed the appellant's notice of appeal. The appellant appealed against both the convictions and the sentences. The grounds of appeal are that:

(1) as to the convictions, that Magistrate Mossop erred in finding:

(i) that the appellant had sent the text messages; and

(i) failed to consider the effect of an ongoing protection order; and

12. On 9 April 2013 the appellant's solicitor filed the appellant's submissions and later, on a date not recorded, the Crown prosecutor filed the Crown's submissions.

13. On 12 April 2013 the appellant's solicitor filed an application seeking to adduce "fresh evidence", that evidence being a translation of "cute", "you are cute" and "sweet" from the English language into the Croatian language.

14. On 23 April 2013 the appellant's appeal came on for hearing before me. As to the appellant's application to adduce "fresh evidence", notwithstanding that the "evidence" is not "fresh", as it was available at the time of the hearing before Magistrate Mossop, and notwithstanding the objection of the Crown prosecutor to the admission of this evidence, and notwithstanding that the evidence was only marginally relevant because the word "slat", if it is a Croatian word, was not translated into English, I allowed the appellant to adduce the evidence. After hearing submissions from the appellant's solicitor, who said that the appellant abandoned the ground of appeal alleging that Magistrate Mossop erred in finding that the appellant had sent the subject text messages, and the Crown prosecutor I stood over the appeal to today for my judgment.

15. The power of the Supreme Court in relation to an appeal to the Supreme Court from the Magistrates Court is clear and well known and need not be recited. Suffice it to say that error on the part of the magistrate must be shown.

16. As to the appeals against the conviction, having read the evidence and the judgment of Magistrate Mossop, I cannot see any error on the part of Magistrate Mossop in finding that the appellant meant the word "slut" when he used the word "slat" in the text messages that he sent to the complainant, particularly as he had referred to her personally as "slut", and as he had difficulty with writing and spelling in the English language, and as he had only recently started texting on his mobile telephone I do not doubt that the appellant meant to use the word "slut" in his text messages to the complainant, and that he knew that the complainant would know and understand the meaning of the word "slat" in those messages. The fact that the translation of "cute", "you are cute" and "sweet" from the English language into the Croatian language produces words which contain the letters "slat" as part of the words does not mean, in the absence of a translation of the word "slat", if it be a Croatian word into English, that the word is not offensive.

17. As to the appeals against the sentences, Magistrate Mossop took into account that the offences were serious, but they fell towards the bottom of the range of objective seriousness for offences of their kind, that the appellant was in receipt of a disability support pension, that the appellant had a criminal record with convictions for twenty three offences, including two offences of contravening a domestic violence order, the first committed on 12 June 1993 and the other committed on 1 January 1994, albeit that the last offence recorded against his name before the subject offences was committed on 25 December 2001, 10 years before when the first of the subject offences was committed, that because of his criminal past there was a need for personal deterrence and that, because of the nature of the subject offences, there was a need for general deterrence.

18. The appellant's solicitor submitted that, in view of the fact that the appellant had consented to the interim domestic violence order being made final, and for the period of 2 years from January 2012 to January 2014, the orders that the appellant enter into an undertaking to be of good behaviour for 18 months from 3 August 2012 was unnecessary and excessive. He submitted that "a good behaviour bond was to coexist with the protection order. The terms of the protection order were sufficient to deter further offending, and for severe penalty if breached. There were no issues of rehabilitation and, in the circumstances, and for the level offending the value judgment as to what is appropriate sentence meant financial penalties through fines were adequate".

19. In reply the Crown prosecutor submitted "the sentence was not excessive. The appellant was previously recorded for breaches of domestic violence orders in 1993 and 1994. He was recorded as recently as 2002 for resisting, hindering police. The fact that two messages were sent to the complainant whilst bound by a protection order demonstrates a course of conduct requiring the exercise of specific deterrence. No additional or onerous obligation was placed upon him other than to be of good behaviour".

20. I am unable to agree with the appellant's solicitor. As the existence of the interim domestic violence order did not deter the appellant from sending two offensive text messages to the complaint, the existence of the final domestic violence order from now until January 2014 may not deter the appellant from conducting himself in a way which contravenes the domestic violence order, albeit that he has not contravened that order in the time from January 2012 to now. I consider that the imposition of a fine and appropriate levies, with a requirement to be of good behaviour for 18 months from 3 August 2012 to 2 February 2014 to be well within the appropriate range of sentences for each offence.

22. I note that the appellant entered into the required undertakings, one in relation to each offence on 3 August 2012, and that they will remain in force until 2 February 2014. I allow the appellant six months to pay the fine and levies, those fines and levies to be paid to the registrar of the court.

I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Solicitor for the respondent: Director of Public Prosecutions