R v Keong

Director of Public Prosecutions (Queensland) for the respondent

[1] WILLIAMS JA: I agree with the orders proposed by Holmes JA for the reasons which she has published.

[2] HOLMES JA: The applicant seeks leave to appeal against sentences imposed on one count of aggravated unlawful stalking, the circumstances of aggravation being a threat to use violence and contravention of a Protection Order, and one count of common assault. In respect of the first, he was sentenced to two years imprisonment and in respect of the second, 12 months concurrent. Both sentences were ordered to be served cumulatively upon 508 days imprisonment, being the activated, unserved balance of a suspended two and half year sentence imposed on 8 November 2005. A parole eligibility date was set at 9 October 2008.

[3] A Schedule of Facts tendered by consent shows that the applicant was the subject of an order made under the Domestic and Family Violence Protection Act 1989 (Qld) prohibiting him from contact with the 21 year old complainant. He was released on parole on 15 September 2006 in respect of an earlier series of offences involving the complainant. On 16 and 17 September 2006, he made a number of telephone calls to the complainant. On 27 September 2006, he rang her again while she was driving to her place of employment at a supermarket and then approached her as she entered the shopping centre. He followed her to the supermarket and against her wishes insisted on hugging her (the common assault). Later that day, and again the following day, he approached her a number of times at the cash register she operated. On one of those occasions he asked her why she parked her car in different areas each night, and he took a photograph of her. That night he twice telephoned her as she was travelling home from work, and on the second occasion threatened her.

[4] A week or so later the applicant telephoned the complainant's home telephone and told her a number of times to choose between being a friend or enemy. He referred to someone who knew a lot of criminals, with the implication that she could expect to hear from them if she chose to be an enemy. The complainant contacted the police. The applicant was arrested and found to be in possession of photographs of her, her car and her father's car parked outside her home. A victim impact statement from the complainant was tendered to the sentencing judge; in it, she described unremitting fear of the applicant.

[5] The applicant, who was 27 at the time of sentence, was a former amateur and professional boxer. He had a long criminal history, commencing in 1996. It contained a number of offences of breaches of domestic violence protection orders, assaults occasioning bodily harm and in one instance, in November 2005, charges of sexual assault and deprivation of liberty. From the charge sheets tendered at sentence, a pattern of behaviour can be discerned in relation to four different complainants, including the complainant in the present matter. A de facto relationship would end; the applicant would refuse to accept its cessation; he would go to the complainant's residence and assault not only the complainant, but her family members as well. A number of his assault convictions involved his punching and kicking middle aged men and women who intervened to protect their daughters.

[6] In November 2005, the applicant was sentenced to two years and six months imprisonment, suspended for three years after 404 days (time which he had already spent in pre-sentence custody) in relation to one count of deprivation of liberty and a series of sexual assaults against two complainants. Those offences did not occur in a domestic violence context. On 29 August 2006 he was sentenced to 18 months imprisonment on various charges of assault occasioning bodily harm, common assault and breach of domestic violence protection orders. Those offences were committed against the complainant concerned in the current indictment and against members of her family. A non-contact order was made and the applicant was given a date for release on parole, both of which, the non-contact order and the parole, he immediately breached by the offences the subject of this application, as well, of course, as breaching a domestic violence protection order. In addition, the August 2006 offences and the current offences constituted a breach of the 2005 suspended sentence, which the learned sentencing judge activated in respect of the remaining 508 days.

[7] A report of a clinical neuropsychologist, Dr Keane, was tendered at sentence on the applicant's behalf. With extreme disingenuity, the applicant had observed to her that he felt sad and bewildered and "didn't know how it can be that if someone contacts him, he can be put in prison for stalking." Dr Keane assessed his full scale IQ in the extremely low range, between 62 and 70. She considered the deficits shown on testing to be consistent with acquired brain injury, possibly from boxing. The applicant's deficits in executive functioning, together with personality and family factors, were likely to result in poor self-control and impulsive behaviour. Dr Keane thought that the applicant would benefit from a more detailed neuro-psychological assessment and suggested a specialised treatment programme, referral to a psychiatrist for pharmacotherapy to help manage his anger outbursts, and a referral to a brain injury support association.

[8] The applicant did not suggest that the whole of the unserved part of the suspended sentence should not have been activated or that the sentence for the fresh offences ought not to have been imposed cumulatively. Rather, his counsel submitted that the sentence of two years imprisonment was manifestly excessive, having regard to the maximum penalty for the offence, of seven years imprisonment; the fact that the offence itself involved very little physical contact and occurred over a limited period of slightly more than three weeks; the plea of guilty; and the learned judge's failure (it was said) to give weight to the applicant's intellectual disability as a mitigating factor. There were two other complaints made in respect of the sentencing remarks: that in the course of them her Honour mentioned a figure of 27 months which did not accord with anything submitted or the sentence imposed; and that she observed that, on the applicant's release from custody there were "grave risks that ... whoever you come in contact with will be the subject of verbal and physical attacks." That remark was not supported by the evidence, it was said, because the applicant was not given to violence against strangers. Finally, it was submitted that the common assault did not call for a sentence of 12 months.

[9] The applicant relied on some sentences in comparable matters, the most relevant of which were those involving repeated offending by persons previously imprisoned for like offences: R v AN [2003] QCA 349; R v Kofoed [2005] QCA 438 and R v Van Den Heuvel [2006] QCA 177. None of the applicants in those cases, it may be observed, seem to have had criminal histories involving as many different complainants as the present case.

[10] In R v A, the applicant was sentenced to three years imprisonment for stalking with circumstances of aggravation, cumulative on 14 months activated of a part-served, suspended sentence for stalking. He had a parole eligibility date 18 months in the future. In addition to those stalking convictions, the applicant there had a criminal history which included an earlier conviction of stalking with a circumstance of aggravation and six convictions for breaches of domestic violence orders. The stalking behaviour on the appealed sentence consisted of a number of phone calls made to the complainant over about three weeks, in which he threatened to kill her and harm her children. This Court took the view that a three year term of imprisonment was at the top of the range for the offending. Given that the net effect of the sentence and order was that the applicant would have to serve four years and two months imprisonment, and having regard to the totality principle and the applicant's plea of guilty, the sentence of three years imposed on the stalking was set aside and a term of two years substituted. (An early date for eligibility for parole was also set, but it seems probable that it allowed for pre-sentence custody.)

[11] In R v Kofoed, the applicant had pleaded guilty, after arraignment for trial, to burglary, assault and stalking committed over a nine month period. On all counts he was sentenced to two years imprisonment, suspended after six months for an operational period of three years. He was 36 years old and had what was described as an extensive and serious prior criminal history, including convictions for burglary, rape, violence and breaches of domestic violence orders. He had carried out persistent harassment of the aunt of his former de facto wife, watching her house, going into her back yard, following her in her vehicle and making intimidating gestures, and on one occasion forcing her vehicle into the path of oncoming traffic. It was emphasised on his behalf that some of his contact with the complainant was the result of her telephoning his house in an endeavour to speak to her niece; that the police had delayed considerably in prosecuting him; and that he was the main carer for a young child. The sentence was, however, described by this Court as within range and was not disturbed.

[12] In R v Van Den Heuvel, the applicant pleaded guilty to stalking with a circumstance of aggravation. He was sentenced to 12 months imprisonment on that count, with 333 days in pre-sentence custody declared. The unserved part of a suspended sentence for stalking, a period of about 22 months, was activated to be served cumulatively upon the 12 months sentence. The applicant argued that the result was, on the totality principle, an excessive sentence. He had nine previous convictions for stalking the same complainant, with whom he had once been in a relationship, in a variety of ways. He had watched her house, made telephone calls, stolen clothing from her bedroom and on one occasion reversed his car into hers. The offence for which the suspended sentence was imposed was being outside the complainant's residence in breach of a restraining order. The Court's reasons for judgment do not make it clear what the stalking offence for which the applicant was sentenced to 12 months imprisonment consisted of, other than that it involved a breach of a District Court order, but it does not seem that any actual physical harm or direct threat was involved. It was held that the sentencing judge did not err in activating all of the previously suspended portion of the earlier sentence after imposing the 12 month sentence.

[13] The applicant's argument that, in comparison with those cases, his conduct did not warrant a two year sentence of imprisonment would have merit if the stalking were taken in isolation; but against the larger background of his criminal history and, in particular, his past violence to the same complainant, the behaviour assumes a very different complexion. Although he did not inflict any actual harm on the complainant she had every reason, given what he had done in the past, to fear it from the threats he made. The applicant's long history of violence to four complainants and their family members both meant that his criminal history was more serious than anything in any of the comparable cases, and gave his conduct on this occasion an extra dimension. It was further aggravated by the fact that it breached a domestic violence protection order, a non-contact order, parole and a suspended sentence.

[14] The applicant complained that the sentence did not reflect any credit given for his early plea of guilty on an ex-officio indictment, and it is true that there was no express reference to it as taken into account on sentence, although it seems improbable that it was overlooked. The learned sentencing judge did explicitly have regard to the applicant's intellectual deficits, describing sentencing as -

"a matter of fashioning a sentence that reflects a recognition that you need that treatment on the one hand, but on the other hand a sentence that shows the communities condemnation for the conduct in which you have persistently engaged."

Accordingly, she made the recommendation for parole after 20 months, that is, roughly three months beyond the end of the portion of the suspended sentence he had to serve. Her reference in the course of her sentencing remarks to 27 months seems to have been a mistake, but the sentence itself was clear and logical.

[15] Her Honour's remark as to the applicant's propensity to assault people he came into contact with was clearly made with reference to people with whom he was in close personal contact, and was well-supported by the evidence. She was right to describe the applicant as a threat to the community. This was a case in which, although allowance was rightly made for the applicant's intellectual disability, his history demonstrated complete intransigence and the report of Dr Keane offered little to suggest any prospect of rehabilitation. In those circumstances, personal deterrence loomed very large.

[16] Given that the first term of imprisonment to be served is attributable to breach of a suspended sentence (and thus a sentence in respect of which the applicant had already been given the benefit of early release), I do not think that the applicant has anything to complain of in being required to serve 20 months before eligibility for parole. However, the submission that the early plea of guilty and the applicant's intellectual disability were not sufficiently recognised assumes greater force when one considers the real prospect that the applicant will not achieve parole at the recommended date or possibly at any time during his sentence.

[17] Taking that factor into account, although the sentence of two years would, of itself, have been well warranted for the applicant's conduct in the context of his past behaviour, the end result, that he may well have to serve some three years and five months, is excessive. And although it makes no difference to the time the applicant will spend in custody, the sentence of 12 months for an assault which consisted of hugging, unwelcome as it was, is excessive and should not stand. There is no reason, however, to disturb the parole eligibility date set at 9 October 2008.

1. Set aside the sentence of two years imprisonment on the count of aggravated unlawful stalking and substitute a sentence of 18 months imprisonment;

2. Set aside the sentence of 12 months imprisonment on the count of common assault and substitute a sentence of six months imprisonment;

3. Otherwise uphold the orders of the District Court.

[19] PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of Holmes JA. I agree with the reasons of her Honour and with the proposed orders.