R v Allie [1998] QCA 75

Court of Appeal (Qld)|1998-04-28|Before: Before Davies J, McPherson J, Fryberg J, Unlike Fryberg J, Davies J

I agree with the orders proposed by Fryberg J. and I agree that they should be made because the learned sentencing Judge's sentencing discretion miscarried and because, in consequence, we must pass sentence ourselves. However I do not agree with his Honour's construction of s.359A of the Criminal Code and consequently for his reasons for reaching that conclusion.

As his Honour has pointed out, "threat" is used in the definition of "concerning act" in sub-s.(7)(g) and "threatens" is used in sub-s.(6)(a)(i). In the latter case the threat must be "to use unlawful violence". In both cases, in my view, the word is used in its ordinary meaning which involves, in accordance with the dictionary definition adopted by Fryberg J., the communication of an intention or determination to inflict punishment, pain or loss on someone either conditionally or unconditionally. That communication does not need to be express. It may be inferred from conduct but the conduct from which it is inferred must communicate that intention or determination to the person to whom the threat is said to be made.

It follows, in my opinion, that the concerning acts may involve a threat against a person which is not a threat to perform an unlawful act of violence or may not involve a threat at all; yet in either of these cases a reasonable person in the second person's circumstances may believe that an unlawful act of violence by the first person is likely to occur. In other words a threat to use unlawful violence against another person is not an element of the offence.

Here, threats by the applicant undoubtedly included threats to use unlawful violence against another person. However, as Fryberg J. has pointed out, not only were these not alleged as circumstances of aggravation on any of the counts against the applicant but they were, in each case, expressly withdrawn. Nevertheless it seems plain that her Honour took those threats into account in sentencing the applicant. That was an impermissible course: R. v. De Simoni (1981) 147 C.L.R. 383. It is for those reasons, in my view, that the sentencing discretion miscarried.

I have read and agree with the reasons of Fryberg J. for granting the application and allowing the appeal against sentence. The orders on the appeal should be in the form foreshadowed by his Honour.

The applicant was convicted after a trial in the District Court on five counts of stalking. On 8 December 1997 he was sentenced to two years imprisonment, a penalty imposed, it seems, on each count. He applies for leave to appeal on the ground that the sentences were manifestly excessive.

The applicant was the father of five children, four of whom had been taken into care by the Department of Family Services some years before the offences. There was evidence that in early 1997 he was concerned and agitated that the fifth was also about to be taken into care. The offences occurred when he contacted five officers of the Department in relation to the children and his wife between 1 January 1997 and 21 March 1997. Pursuant to a court order, the Crown particularised a total of 19 acts - what s.359A of the Criminal Code calls rather opaquely "concerning acts" - in respect of the five counts, and evidence was given of 17 such acts.

Two acts were alleged to relate to the Director-General of the Department, Rev. Allan Male. On 28 January 1997 the applicant went to the Department and in the course of speaking to Mr Male said, "I'll take you out, I'll take you down, I'll bring the government down". He also made a number of telephone calls to Mr Male. On 10 March he repeated his earlier threats.

Eight acts were alleged to relate to Ms Mulkerin. All were by telephone with two calls on one day and four calls on another. In the course of those calls, the applicant threatened Ms Mulkerin, saying things like, "I will come up there and I will find you. I'll get you and when I get you, you know that I'll hurt you". She testified that he said he knew she was having a good time at the office "because I was playing with my vibrator and that's how I got off". He swore a lot at her.

Three acts were alleged to relate to Ms. Edwards though only two were proved. They involved two telephone calls on 10 and 13 March 1997. Those two calls were two of many calls to her during February and March that year. In the first call, the applicant alleged to Ms Edwards that she was corrupt, that he was going to take her out, that he was going to expose her to the media, and that he was going to come and get her. She was impressed by "the ferocity and velocity of what he was saying to me, he was speaking very fast, he was very angry, he was almost incoherent, and that anger had reached such a peak it almost reminded me a little of someone losing control". Three days later, the applicant threatened "to ram the phone ... down my throat until it came out my arse, wrap it around my neck and hang me." He said he knew where she worked and what time she finished work and he was going to wait for her, she wouldn't see him but he would be waiting there. He implied he would have colleagues there.

Three acts were alleged to relate to Ms Nelson, one in the Departmental office and two involving telephone calls. Of these alleged acts, only one was the subject of evidence - the phone call alleged on 27 February 1997. However the Crown led evidence of another act on 29 January 1997 without objection, notwithstanding the absence of particulars. The applicant made fifty or more phone calls to Ms. Nelson in the period from January to March concerning his children or his wife. These calls became more abusive and the applicant began to threaten her. On 29 January 1997 he threatened her, saying, "You're a fucking bitch, I'll get you for this, don't you think you can get away with this, I can get you taken out". On 27 February he again contacted her. She testified that he "used the same kind of threats that he was going to take me out, I was a fucking slut, I couldn't be trusted, I was corrupt, he was going to get me, I had to leave the office, 'Just remember, you've got to leave that fucking office', and those kinds of words".

Three acts were alleged to relate to Ms. Bell. One involved a phone call and two arose from events in the foyer of the office. Ms Bell estimated that in the period from January to March 1997, she would have spoken to the applicant on the telephone on hundreds of occasions. In those phone calls he would "get really aggressive", he would swear at her if she could not put him through to the minister or to one of her supervisors, he would scream through the phone and yell abuse at her, he would threaten her job and tell her that she was going to be sacked. He would say, she testified, "You get off your f...ing vibrator and get the minister out of his office". He would call her a corrupt bitch. In particular, he said these things in a phone call on 4 March 1997. Then, he also said he would "come down there and get her."

The first of the particularised occasions at the office she described thus:

"Now, did you have - if I could take you to February of 1997, did you have any personal contact, that is, physical contact with the accused man during February? -- Yes, about mid February it was, he turned up at the entry foyer of the building, came upstairs to the area outside the Minister's and the DG's office and asked to be taken to the Minister, and one of the girls called me to go and see him because I was one of the only people in the office that knew him, and when I got out to the reception area he was quite angry, I explained that the Minister wasn't even in the building, it was a Parliamentary sitting day and then he demanded to see the Director General of the area, and the Director General was actually out at a function at the time, and so I tried to explain to him that there wasn't anyone that he could see, that he could ring at some time, make an appointment or I could try and get an appointment made for him at another time when we knew that they would be there, and he just got angrier and he just started stalking up and down the lift area, then he started screaming at the girl in the reception box and he started calling out the names of the other people in the office that we knew because he'd been there so much and he asked to see them and none of them was available and that was a day when the Parliament was sitting and a lot of the main officers are down at the house to answer questions, and I didn't know what to do with him and I said, `Please Mr Allie, if you leave now, I'm make an appointment for you.", and he said, "No, you get them out of that office now and you do it immediately." I explained that I couldn't and I actually backed through and the reception area behind the doors because there's a glass area that you can get down through the receptionist beeped the door to let me through, and I called the security guards and he just said, `Well, they can't touch me, they're just boy scouts, they can't do anything to me.", and it went on for quite a while. The security guards tried to talk to him and eventually they got him out of the building."

"Yes, in the reception? -- It was just a similar occasion to that one, it wasn't a Parliamentary sitting day, he was very similar, he carried on, they were both in about mid February, he was going through a bad period and he was quite anxious and he was demanding to see both the Minister and the Director General, and at that time I believe that when he finally left the building -----

Well, if you just confine yourself to what you saw, you saw what happened?-- Okay, that's what happened, he comes in, he's aggressive, he demands to see people that are either not there or in meetings or when I can't get him in to see them, he yells at me and screams at the person behind he box and demands to see whoever is available."

She said that the applicant "leans forward into you and he's very aggressive and he's shouting at you and he's screaming really loudly".

At the beginning of the trial, the Crown withdrew an indictment charging as a circumstance of aggravation on each count that the applicant threatened to use unlawful violence against the victim. However, in imposing sentence, the primary judge took into account the threats of violence already described and referred to several cases involving circumstances of aggravation. Counsel for the applicant argued that the sentencing discretion miscarried because the judge treated a circumstance of aggravation as relevant when it had not been alleged in the indictment. Reliance was placed on the decision of the High Court in R. v. De Simoni[1] and the decision of this Court in R. v. D[2] for the proposition that where an indictment does not refer to particular circumstances of aggravation, a judge in imposing sentence may have regard to those circumstances only if they would not have rendered the accused liable to a greater punishment under the Criminal Code had they been charged. It was submitted that the threats of violence taken into account by the judge constituted circumstances of aggravation of the sort described in s.359A(6) of the Code.

So far as is relevant, s.359A of the Criminal Code provides:

"(1) A person must not unlawfully stalk another person.

(2) A person (the `first person') unlawfully stalks another person (the `second person') if -

(a) the first person engages in a course of conduct involving doing a concerning act on at least 2 separate occasions to another person or other persons (whether the second person, another or others); and

(b) the first person intends that the second person be aware that the course of conduct is directed at the second person, even if the concerning acts or particular concerning acts are done to, or to the property of, a person other than the second person; and

(d) the course of conduct would cause a reasonable person in the second person's circumstances to believe that an offensive act (a `concerning offensive act') is likely to happen.

(3) For the purpose of subsection (2)(d), the second person's circumstances are those known or foreseen by the first person and those reasonably foreseeable by the first person.

(6) Unlawful stalking is a crime for which the first person is liable to a maximum penalty of -

(a) imprisonment for 5 years if, for any of the concerning acts constituting the offence, the first person -

(i) unlawfully uses or threatens to use unlawful violence against another person or another person's property; or

(ii) has possession of a weapon within the meaning of the Weapons Act 1990; or

(iii) contravenes an injunction or order imposed or made by a court under a law of the State, the Commonwealth, another State or a Territory, or threatens this; or

`concerning act' means any of the following acts -

(a) following, loitering near, watching or approaching another person;

(b) telephoning or otherwise contacting another person;

(d) interfering with property in the possession of another person;

(e) leaving offensive material where it will be found by, given to or brought to the attention of, another person;

(f) giving offensive material to another person, directly or indirectly;

(g) an act of harassment, intimidation or threat against another person;

(h) an unlawful act committed against the person or property of another person;

`concerning offensive act' means an unlawful act of violence by the first person against -

(b) a person, other than the second person, about whose health or custody the second person would reasonably be expected to be seriously concerned if the act were done, including, for example, a dependant, relative, friend, employer or associate of the second person; or

(c) the property of a person, other than the second person, about whose property the second person would reasonably be excepted to be seriously concerned if the act were done, including, for example, the premises where the second person lives or works, or the property of a dependant, relative, friend, employer or associate of the second person;

`property' of a person other than the first person includes property in which both

the first person and the other person have an interest;

`unlawful' act means an unlawful act constituting an offence;

`violence' against the person includes an act depriving a person of liberty;

`violence' against property includes an unlawful act of damaging, destroying, removing, using or interfering with property."

It will be observed that para (2)(d) makes it an element of the offence that the course of conduct would cause a reasonable person in the "second person's" circumstances to believe that a "concerning offensive act" was likely to happen. Sub-section (7) defines the latter term to mean an unlawful act of violence by the "first person" against nominated persons or things. It was submitted on behalf of the Crown that it would be nonsensical that a second person could be induced to believe that an unlawful act of violence was likely to happen unless the first person's conduct reasonably communicated such a belief to the second person; i.e., threatened it. If that submission is correct, it follows that whenever the elements of sub-s.(2) are complete, there must have been a threat to use unlawful violence against another person or another person's property. The Crown submitted that a threat of such violence is invariably an element in the offence; and where an element of the simple offence is also a circumstance of aggravation, that circumstance may be taken into account by the sentencing judge.

The last leg of that argument is in my judgment correct. In De Simoni, Gibbs CJ, with whom Mason and Murphy JJ agreed, so held in relation to the offence of robbery[3]. I can see no rational basis for distinguishing s.411 of the Code from s.359A. The question is therefore whether a threat of violence to person or property is invariably an element of the offence under s.359A. "Threat" in the relevant sense is defined in the Macquarie Dictionary thus:

"a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace."

I cannot imagine a set of facts satisfying the elements of s.359A(2) which would not give rise to a threat, express or implied, in that sense. To that extent, the submission on behalf of the Crown is correct. However that is not the end of the question, for the Crown submission is made good only if "threatens" in s.359A(6) has that or a cognate meaning. Is there any reason why that word should not there bear its dictionary meaning?

With all due respect to the Crown submission, it is difficult to see why Parliament would have given the section the structure which it has if it intended that all, or almost all, cases should fall under sub-s.(6). There would be no point in creating differential punishments if that were the position. Moreover, such an interpretation would leave no scope for s. 552B(1)(k) to operate. That provision was inserted into the Code by act no. 32 of 1997, assented to as recently as 1 August 1997. I cannot think that Parliament intended such an absurd result. The whole purpose of the provision conferring jurisdiction on the Magistrates Court would be defeated by such an interpretation. For this reason, "threatened" in s.359A(6) must have a limited meaning.

How an appropriate limitation might be formulated it is not easy to see. However some guidance may be gained from the definition of "concerning act" in sub-s.(7). That definition lists a number of acts which may be done as an element of sub-s.(2)(a). One on them is "an act of . . . threat". Despite the clumsiness of the phraseology, that word must add something to the list of acts. Almost all of the other acts, however, are capable of carrying an implied threat. If "threat" includes an implied threat, there is therefore a degree of incongruity in the definition. While this is far from conclusive, it suggests that the threats which the legislature had in mind in the section were threats which were express, not implied.

In my judgment, that limitation should be read into sub-s.(6). It is true that a distinction between express and implied threats is not an easy one to apply. However some limitation is necessary in order to make the section operable, and I can think of none other which could sensibly be applied. It should not be thought that an express threat can only be made by words. Conduct may suffice. Regard will have to be paid not only to matters of form, but also to how explicit and direct the words or conduct in question may be. Borderline cases may emerge, but hopefully, not too often.

In the present case, the threats to which the judge referred in fixing sentence were those of which evidence was given during the trial. While they were in some cases vague and in others exaggerated, they were in my judgment express threats capable of forming part of the elements of the offence. They were particularised in respect of the charges to which they related as constituting the relevant "concerning acts". They could and should have been put to the jury as constituting those acts. Had that occurred, the verdict of guilty would have formed the basis for the judge to take those acts into account in passing sentence. Unfortunately, that is not what occurred. The judge did not direct the jury in accordance with the particulars provided by the Crown. She gave them a copy of the statutory definition and said:

"All right, turning then to element 1: `The accused engages in a course of conduct by doing a concerning act on at least two separate occasions'. Bear in mind this, of course, is for each complainant, for each count. `Concerning acts', they are listed there, you can read them, they have no particular legal meaning, you can read them as easy as I can and I think understand them. The only one that I will give you some further assistance on is harassment, and again, I am really not going much further than what you probably already know, but I will just digress for a moment to do this concept of harassment. It is not defined in this section in the Code, so that is the first thing you should know. The draftsperson did not give us a definition of harassment, which means we then turn to other legal cases and to legal and non legal dictionaries and we get assistance from them. And using those sources, I can give you some idea, probably not terribly different from what is the ordinary lay meaning.

The Macquarie Concise Dictionary defines harassment as:

`To trouble by repeated attacks, to disturb persistently, torment as with troubles, cares, et cetera.'

That is what the Macquarie Concise Dictionary says. The Concise Oxford describes it as:

`Vex by repeated attacks, to trouble or to worry.'

Words and Phrases, which is a legal dictionary, says that it is:

`Synonymous with to vex and also synonymous with weary, jade, tire, perplex, distress, tease, molest or trouble. Mental annoyance, a troubling of the spirit.'

The Oxford English Dictionary has three relevant definitions, the first is:

`To wear out, to tire out, to exhaust with fatigue, to care or to trouble, secondly, to trouble or vex which repeated attacks, thirdly, to trouble, worry, distress with annoying labour, care, perplexity, misfortune.'

So you can see that there is quite a lot of overlap in those definitions, and there is one decision that is of some assistance in talking about harassment, the Full Administrative Appeals Tribunal said:

`Harassment should be understood in its ordinary popular meaning of the action of vexing or worrying and doing so for the deliberate purpose of so harassing a person or persons.'

So that is the only assistance I can give you from my researches of what harassment means, and that is within (g), but that it is a matter for you to look through each of those to see whether they are relevant to the evidence. Clearly, some are not, and it is a matter for you which ones are on the evidence."

As a result, it was not possible, and it is not now possible, to say whether the jury's verdict carried with it a finding that express threats were made, or that the first element of the offence was constituted by such threats. The threats made by the applicant are, therefore, circumstances "of which the person to be sentenced has not been convicted"[4]. Consequently, it is not possible to bring the case within the exception identified in De Simoni. It was therefore not correct for her Honour to take the words used by the applicant into account as threats when she passed sentence. The sentencing discretion has miscarried and we must pass sentence ourselves.

The applicant's prior criminal history contains little of relevance. In the early 1980s, he was convicted on one count of stealing and five of false pretences. The amounts involved were small; he was fined and given probation for 18 months and community service of 100 hours. In early 1990 he was convicted on one count of behaving in a disorderly manner and one of ill treating a child. On the former charge he was given probation for six months and "psychiatric examination and treatment if necessary" was ordered. It does not appear whether effect was given to this order. On the latter charge he was fined $150.

On behalf of the Crown, it was argued that this was a case of deliberate and calculated misconduct, as opposed to conduct driven by an obsession. In my judgment, the evidence does not support that submission, and counsel was unable to refer us to any specific basis for it.

At the time of the offences the applicant was aged 31 years. He had serious family problems and there seems little doubt that he was deeply distressed by these problems. There is no firm evidence of any psychiatric disability. His offending conduct was highly abusive and offensive to public officials who were only trying to do their duty. Indeed, the fact that the applicant's conduct was calculated to deflect them from their duties, or at least to influence their performance, is an aggravating circumstance. Departmental officers are entitled to the protection of the law and the courts should discourage conduct such as that constituting these offences. The sentences we impose must reflect this.

However the sentences must also reflect considerations particular to the applicant. He had never before been sentenced to imprisonment. He proffered an undertaking not to have direct contact with Departmental officials in future. Her Honour thought this of little or no value in the light of his conduct, but she seems to have given no weight to the fact that he had avoided such contact for approximately eight and one-half months prior to his conviction. Moreover, undertakings can be enforced or imposed as conditions capable of enforcement. It was not suggested that he had not complied with the terms of probation orders previously imposed. Her Honour discounted apologies which the applicant had apparently offered to some of his victims, suggesting, on a basis which is not clear, that his apologies somehow made matters worse. I would not discount them so readily. On the other hand, I would give weight to her Honour's view that the applicant's version of events showed a complete lack of remorse. Her Honour had the advantage of seeing the applicant give evidence.

Some of the offences were more serious than others. The penalties should reflect this. The sentences imposed in the District Court should be set aside. On the counts relating to Ms Bell, Ms. Edwards and Ms Nelson, the applicant should be imprisoned for 18 months, but the balance of each term should be suspended after the applicant has served six months, for an operational period of four years. On the counts relating to Mr Male and Ms Mulkerin, the applicant should, subject to his consent (which counsel indicated was likely to be forthcoming), be sentenced to imprisonment for six months and then be released under the supervision of an authorised Commission officer for two years upon the requirements set out in s.93 of the Penalties and Sentences Act 1992 and with the further requirement that he comply with a condition not to communicate with any officer of the Department of Family Services except by his solicitor or with the consent of the officer concerned. The applicant's consent to this order may be communicated to the Registrar.

[3] (1981) 147 CLR at p. 393. (The minority judges would have allowed the circumstance of aggravation to be taken into account in any event.)

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