R v Orgill [2007] VSCA 236

Court of Appeal (Vic)|2007-10-26|Before: CHERNOV, VINCENT and REDLICH JJA

Criminal law - Sentence - Whether sentences imposed on counts involved double punishment - Facts common to actus reus of counts of stalking, burglary and theft - Pearce v The Queen (1998) 194 CLR 610 applied

**1 I agree, for the reasons given by Redlich JA, that this appeal should be allowed and disposed of as his Honour proposes.

2 I agree in the disposition of this matter proposed by Redlich JA and I do so for the reasons advanced by him in his judgment.**

**3 The appellant, having pleaded guilty to a presentment containing seven counts, appeals against the sentences imposed by the County Court at Melbourne. The primary question raised by the appeal is whether the sentences imposed on some counts involved an element of double punishment because of the existence of facts which were common to those counts, in particular the fact of the appellant's entry onto premises occupied by the victim common to the counts of stalking and burglary.

4 On 3 November 2006 the appellant was sentenced in the County Court as follows:

Count 2 Possession of child pornography 12 months' imprisonment

5 The learned sentencing judge directed that four months of the sentence on count 2, two months of the sentence imposed on count 4 and four months of the sentence imposed on count 6 be served cumulatively upon each other and upon the sentence imposed upon count 3, making a total effective sentence of four years and**

10 months' imprisonment. It was ordered that a period of two years and six months be served before the appellant would become eligible for parole. A declaration was made that the appellant had already served 503 days by way of pre-sentence detention.

6 The circumstances of the appellant's offending were comprehensively summarised in the learned judge's sentencing remarks as follows:

The circumstances in respect of Count 1 are that on Friday 12 March 2004, you Mr Orgill were staying at the City Edge Motel in Langridge Street, Collingwood. You were yelling in the car park and you used a key to scratch the side of a utility parked there. You scratched the car from the front guard along the length of the car to the back of the car. You then walked away and you were followed by a witness Mr Taranto. You were arrested shortly afterwards at approximately 200 metres from the scene of your offending. To your credit, you made admissions at the scene and when interviewed by the police admitted the offence. I have taken those admissions and your cooperation with the police into account in determining the appropriate sentence in relation to Count 1.

The car required a respray and the owner Mr White paid $450 of his excess to his insurer. It is this amount which is sought by way of compensation to be paid to Mr White. I note that application for such an order by the Crown has been consented to by you. I will be making that order at the appropriate time. I've taken your consent to the making of that order as well as the money to be paid by way of compensation into account in your favour.

In respect of the circumstances giving rise to Counts 3 to 7 on the presentment to which you have pleaded guilty before me, those circumstances are as follows: In 2005, Jing Yi Zhang, your victim, was a 16 year old Year 12, student. On 3 June 2005, she finished school early and caught the bus at approximately 12.30 p.m. from the Box Hill Central Shopping Centre, to the Doncaster Hotel near her home. You, Mr Orgill, followed her from the shopping centre to a point near her home. On 6 June 2005, at approximately 10 a.m., your victim was at home when you rang the doorbell. She ignored that and you then rang the doorbell again at approximately 10.40 a.m. You then tried to open the flywire door and you then pushed a note under the door. Your victim read the note which said "Hello Princess, my name is Sticky and I think you are really pretty and I'm going to teach you all about sex and how to kiss and smile and have lots of fun, OK? Open the door and I'll show you how to suck my dick, I want to tell your mum I will come back at 11 a.m." The complainant placed the note back under the door.

At 11 a.m., Mr Orgill you returned and rang the doorbell, you collected the note and left. On the next day 7 June 2005, you left a toy and a can of whisky and cola, on the front door step of the victim's home. Images contained on the disk on the computer were seized by the police during a search of your premises. In relation to the Possession of Child Pornography count which is Count 2, there was a photograph of the toy bear and the can of whisky and cola and other items on the front door step of the victim's home. However, there was no image of your young victim on any of the material seized during the subsequent search of your premises.

On 8 June 2005, the victim reported the matter to the police. On 9 June 2005, you entered the victim's house, through a manhole in the laundry. (Count 4) You broke the wardrobe handle and you left a note on the victim's bed, saying "Hello Princess", and you wrote that on paper from the victim's study. You also stole the victim's identification pass from her desk. (Count 5) At the time, you entered the victim's house, no one was at home.

On 10 June 2005, the victim's father saw you loitering outside their home. He followed you and unsuccessfully attempted to photograph you. Mr Orgill you showed the victim's father a pair of handcuffs on that occasion.

On 16 June 2005, you again entered the victim's home through the roof. (Count 6) You sat or lay on her bed, you interfered with her makeup, used the shower and a bathroom towel, turned on the television, used a coffee cup and stole a videotape. (Count 7) The flywire screen on the lounge room had been removed and the manhole cover had been moved. No one was at home on that occasion. Your victim returned home at approximately 4 p.m. and found a drink bottle on the front doorstep as well as the other matters referred to in this paragraph.

On 17 June 2005, police surveillance was conducted at and near the victim's home and Mr Orgill, the police saw you approaching her home and then present at her front door and inside the front yard. You were subsequently arrested and you told the police that "Jenny my girlfriend" lived at the house. You admitted entering the house on two previous occasions through the roof and you said that your victim was "playing hard to get". Police found two doorstop wedges in your possession, which you said were to keep the door shut to keep her in. Police also found a victim's identification card in your pocket. The matters outlined give rise to the two counts of burglary and the two counts of theft and also relate to the course of conduct giving rise to the count of stalking, Count 3, to which you have pleaded guilty before me.

At this time Mr Orgill, I am told you were staying at Uni Lodge, 238 Flinders Street, Melbourne and you had been living there since 30 April 2005. On 17 June 2005, the police executed a search warrant at that address. They found a laptop computer containing images of female children and which gives rise to Count 2 on the presentment, that is the count of Possession of Child Pornography. As I said previously, the images also contained a photograph of a soft toy left by you with a caption "Bait". Police also found a pair of handcuffs.

On that same date, namely 17 June 2005, you were interviewed by the police. During the course of that interview to your credit, you made certain admissions and then chose to exercise your right and made a number of 'no comment' responses. (Emphasis added)

**7 The appellant admitted 15 prior convictions from six court appearances between July 1985 and August 1998. A number of those convictions related to trafficking, cultivation and possession and use of a drug of dependence, namely cannabis, the last of those convictions being in 1991. The appellant also had convictions for summary offences including being armed with an offensive weapon, unlawful assault and loitering in a public place. In 1996 the appellant had been convicted of three charges of committing an indecent act with or in the presence of a child under the age of 16 years. The appellant had been sentenced to be released on a community based order for a period of 12 months with condition that he perform 150 hours of unpaid community work. The appellant had never been sentenced to a term of imprisonment.

8 As a consequence of the appellant's conviction for possession of child pornography, it was declared that the appellant was a registrable offender pursuant to s 6 of the Sex Offenders Registration Act and because of his prior convictions, it was ordered that he be required to report for the period of life under that Act.**

(a) in imposing sentence without having proper regard to the principles relating to double punishment (see Pearce v R (1998) 194 CLR 610);

(b) failing to pass sentences which avoid a double punishment rising out of the commonality of the offending disclosed on counts 3, 4, 5, 6 and 7 to which the appellant pleaded guilty (see in ordering cumulation to the extent that her Honour did as between counts 3 and 4 and 6).

**10 As can be seen from the summary of the facts, the count of stalking embraced the period 3 June 2005 to the 17 June 2005. The offences of burglary and theft were committed within that period. The sentencing judge treated the conduct, constituting the burglaries and theft as part of the course of conduct which gave rise to the offence of stalking. Her Honour made plain that the two occasions upon which the appellant entered the victim's home and his theft and interference with the victim's property on those occasions were part of the course of conduct constituting stalking.

11 Section 21A of the Crimes Act 1958 provides:**

(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following:

(b) contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever;

(c) entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;

(d) interfering with property in the victim's or any other person's possession (whether or not the offender has an interest in the property);

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

(f) keeping the victim or any other person under surveillance;

(g) acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of any other person -

With the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person.

(3) For the purposes of this section an offender also has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of any other person if -

(a) the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or

(b) the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.

**12 The offence of stalking is made out if the offender engages in a course of conduct with the intent specified in sub-paras (2) or (3) of s 21A. The course of conduct includes conduct of the type or nature described in sub-s (2)(a)-(g).[1] Both parties on this appeal accepted that sub-paras (a)-(g) were descriptive of the type of conduct which would constitute the actus reus of stalking. In oral argument counsel for the appellant rested his submission upon the proposition that there was a common factual basis for each of the counts of stalking and burglary and stalking and theft.

13 Counsel for the appellant correctly conceded that there was no impropriety in charging and convicting the appellant on each of these counts. The conduct constituting the offences of burglary and theft, though part of the single crime of stalking, called for separate convictions and sentences in relation to each of these counts.[2] Moreover counsel for the appellant accepted that the sentencing judge for the purpose of sentencing on the count of stalking was entitled to have regard to the acts constituting the offences of burglary and theft. The gravamen of counsel's submission was that the appellant's culpability in relation to the counts of burglary and theft having been taken into account in sentencing him on the count of stalking, her Honour failed to moderate the sentences in relation to these counts and as a consequence the appellant was exposed to double punishment because the facts common to each count were twice the subject of punishment.[3]

14 Where there are no elements or factual matters common to two or more of the counts no question of double punishment will arise.[4] The commendably brief argument of counsel for the appellant contained a forceful submission that there were elements and facts common to the counts of stalking and burglary and the counts of stalking and theft. The offence of stalking may include entering the victim's place of residence (s 21A(2)(c)) and interfering with property in the victim's possession (s 21A(2)(d)). In the present case the actus reus of the offence of stalking included that conduct. The actus reus of the offence of burglary is that the offender, as a trespasser, enters the premises of another person. The counts of burglary on the presentment alleged that the appellant did so with the intent to steal. As the facts show, it was an intent to steal personal property of the victim. The appellant argued that those facts and the actus reus of the counts of theft were facts common with part of the course of conduct on the count of stalking.

15 The sentencing judge in her remarks recognised that there was an overlap between the counts of burglary and theft and the count of stalking. It was accepted by counsel for the respondent that the sentencing judge had correctly treated the burglaries at the home of the victim and the theft of the victim's items from the victim's bedroom as aggravating features of the course of conduct constituting the stalking in determining the sentence to be imposed on that count.

16 Her Honour concluded that whilst there should be an order for substantial concurrency between the stalking count and the counts of burglary and theft, the nature and gravity of the offending and its impact on the victim required some order for cumulation. Thus her Honour ordered two months of the sentence on the first count of burglary and four months of the sentence on the second count of burglary should be served cumulatively upon the count of stalking. Counsel for the respondent submitted that this order for cumulation reflected the sentencing judge's view of the method of home invasion by the appellant and his continued intention to enter the victim's property with an intent to steal which co-existed with his intent to cause apprehension in the victim.

17 It is arguable that entry to the premises for the purposes of the offence of stalking is of a different character to entry for the purposes of the offence of burglary. The same may be said of the actus reus of the offence of theft and interference with the victim's property in the offence of stalking. But if there be a distinction in the present circumstances between acts constituting the actus reus of those offences, it was a distinction which should not be drawn. As the joint judgment of McHugh, Hayne and Callinan JJ and the judgment of Gummow J in Pearce v The Queen[5] illustrates, to the extent that offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. That has been understood to mean that the offender is not to be punished twice for the same act.[6] The joint judgment in Pearce cautioned against the use of 'excessive subtleties and refinements' in determining whether the same act is common to two offences and that the task should be approached with common sense.[7]

18 In my view, the order for cumulation amounted to double punishment for each of those acts had already been taken into account in fixing the sentence on the count of stalking. The sentence imposed on that count and the remarks of the sentencing judge shows that the appellant's invasion of the victim's residence with the intent to steal personal property of the victim and the subsequent theft of the victim's property were reflected in the sentence of four years' imprisonment fixed on the count of stalking. To characterise the appellant's acts of entry to the premises differently for the counts of stalking and burglary was to engage in excessive refinement of the feature common to both counts. As her Honour fell into error in this regard, the sentencing discretion must be reopened.

19 It is apparent from her Honour's careful and comprehensive reasons for sentence that her Honour gave anxious consideration to the sentences that should be imposed. I would reaffirm the sentences imposed by her Honour on each count. I would order as her Honour did that four months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 3 making a total effective sentence of four years and four months' imprisonment. I would direct that a period of two years and three months be served before the appellant becomes eligible for parole. As the appellant has already served 860 days of pre-sentence detention, he has now served the non-parole period. It will be a matter for the Parole Board, when and under what conditions he is released.

[1] Gunes v Pearson (1996) 89 A Crim R 297, 306 (McDonald J); R v Maccia [2003] VSC 384, [18] (Gillard J).

[2] R v Henderson [1998] VSCA 83; [1999] 1 VR 830, 835 (Batt JA with whom Winneke P and Brooking JA agreed).

[3] An identical argument was considered in R v King [2007] VSCA 38, [6]-[7].

[4] R v Langdon and Langdon [2004] VSCA 205; (2004) 11 VR 18, 34-5; R v King [2007] VSCA 38 [7]-[8].

[5] (1998) 194 CLR 610, 614, 624, 628-9.

[6] R v Henderson, supra, 836; R v Chhom Nor [2005] VSCA 46, [15] (Chernov JA). See also s 51(1) of the Interpretation of Legislation Act 1984.

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Judgment (51 paragraphs)

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Cases Cited (2)