R v Van Den Heuvel [2006] QCA 177

Judgment (24 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] MCMURDO P: I agree with Jerrard JA's reasons.

[3]

[2] The applicant was sentenced on 12 March 2004 and 22 November 2005 to a total period of three and a half years imprisonment for offences of stalking the unfortunate complainant. The maximum penalty for the stalking conviction of 12 March 2004 was five years imprisonment and, for the conviction of aggravated stalking of 22 November 2005, seven years imprisonment. The applicant is now 32 years old. His only criminal history relates to his unhealthy and unlawful obsession with the complainant. His offending has not involved direct threats to her or others. He has pleaded guilty to his past offences and, at least in respect of the most recent conviction, has co-operated with the authorities. Setbacks in his own life appear to have made him emotionally vulnerable prior to and during the period of his offending. He has a sound employment history. In those circumstances the total penalty of three and a half years imprisonment does seem heavy, even taking into account that the later offence breached the operational period of a suspended sentence. But it is the cumulative and persistent nature of the applicant's offences of stalking and their serious detrimental effect on the complainant, her family and friends that ultimately satisfy me that the sentence imposed on 22 November 2005 was not manifestly excessive and that the judge was entitled to conclude that it was not unjust to activate the whole of the suspended sentence imposed on 12 March 2004. A salutary penalty was required by way of general and individual deterrence.

[4]

[3] Unfortunately none of the sentences imposed upon the applicant in the past has involved community supervision and support. His background circumstances, particularly his emotional vulnerability and his recidivism, suggest that he, the complainant and the community would benefit from him receiving support and supervision in the community for as lengthy a period as possible. I note that his present sentence calculation states that he was eligible for parole on 21 May 2006. Registry staff have been told by officers at the Borallon Correctional Centre that as of 23 May 2006 the applicant had not applied for post-prison community-based release. Nevertheless, if he soon makes an application for parole as he is entitled and he is successful he will be supervised and supported in the community until mid-October 2007, a period in excess of 15 months. This would almost certainly assist in his rehabilitation and the complainant's reclamation of her own life.

[5]

[4] I agree with the orders proposed by Jerrard JA.

[6]

[5] JERRARD JA: On 22 November 2005 Mr Van Den Heuvel pleaded guilty to a count on an indictment alleging that on 25 December 2004 he unlawfully stalked H, and that one of the acts constituting the unlawful stalking of her by him contravened an order made by the District Court at Southport on 12 March 2004. He was sentenced to 12 months imprisonment for that offence of stalking with that circumstance of aggravation, and the learned sentencing judge declared that 333 days spent in pre-sentence custody between 25 December 2004 and 22 November 2005 be deemed time already served under the sentence. The judge also activated the whole of the remainder of a suspended sentence, a period of 659 days (or about 22 months), and ordered that the activated sentence be served cumulatively upon the sentence of 12 months. Mr Van Den Heuvel has applied for leave to appeal, arguing that the sentences imposed, in their totality, were manifestly excessive.

[7]

[6] Mr Van Den Heuvel's conviction for stalking on 22 November 2005 was his ninth conviction for an offence of stalking H, against whom he has committed those offences over the six year period spanning December 1998 to December 2004. He had been in a relationship with her that ended in approximately September 1998 and since then has convictions for stalking offences committed:

[8]

1. between 13 December 1998 and 17 January 1999 (probation and a fine option order made);

[9]

4. between 26 March and 31 March 2000 (for those offences 2, 3, and 4 Mr Van Den Heuvel was convicted on 5 April 2000 and fined $2,000 in default of 10 weeks imprisonment, with three months to pay);

[10]

[7] The offences committed on and after 12 April 2000 and up to April 2002 (Numbers 5 to 8) were all dealt with in the Southport District Court on 12 March 2004. On that date Mr Van Den Heuvel was also dealt with for offences of stealing and wilful damage, both committed on 12 April 2000, and an offence of attempting to pervert the course of justice, committed on 26 October 2001. For all of those offences (four of stalking, stealing, wilful damage, and attempting to pervert the course of justice) Mr Van Den Heuvel was sentenced to two and a half years imprisonment, to be suspended for an operational period of four years after he had served 253 days. Pre-sentence custody of 253 days (between 4 July 2003 and 12 March 2004) was declared time already served under the sentence, and he was accordingly released, with 659 days - all now activated by the order of 22 November 2005 - suspended for an operational period of four years. The learned District Court judge imposing sentence on 12 March 2004 also made an order pursuant to s 359F of the Criminal Code 1899 (Qld), prohibiting Mr Van Den Heuvel from directly or indirectly, personally or otherwise, having any contact with H and prohibiting him from entering or being within one kilometre of her residence or place of employment; that order was to be in place for five years, until 12 March 2009.

[11]

[8] Mr Van Den Heuvel's criminal history reveals that after he was convicted and fined $2,000, in default of 10 weeks imprisonment on 5 April 2000, he re-offended exactly one week later, on 12 April 2000, the date when he also committed the offence of stealing and wilful damage. That last offence was committed by Mr Van Den Heuvel reversing his vehicle into H's fiancé's car, and the transcript of her submissions made to the learned District Court judge on 12 March 2004 (part of this appeal record) discloses that the stealing was apparently the removal of an item of H's clothing from her residence; when someone appeared unexpectedly Mr Van Den Heuvel immediately decamped. The obstruction of justice happened when Mr Van Den Heuvel tendered a forged document to enable him to delay the proceedings against him, ultimately heard in March 2004, when he pleaded guilty to all charges. The submissions made on 12 March 2004 included that the offence committed between December 2000 and June 2001 involved four occasions of contact in a six month period; the offence committed between 19 February 2002 and 6 March 2002 involved 16 days in which there were seven telephone calls made, five being on the one day; and the offence committed in the four day period in April 2002 consisted of 11 telephone calls.

[12]

[9] The judge imposing sentence on 12 March 2004 accepted that Mr Van Den Heuvel's stalking did not involve threats to kill or threats of significant physical harm to H or her family, but that what he persisted on doing was very upsetting for H and for them. The Crown's submissions on that occasion had included that Mr Van Den Heuvel's stalking was a flagrant contempt of the earlier orders of the Magistrates Court, had involved considerable effort and planning in travelling from Townsville to Brisbane, had been effected both from long distance and from close proximity, and had resulted in the complainant being cross-examined at a committal hearing in the Townsville Magistrates Court. I also observe that it seems a fair inference that the stalking in 2001 and 2002 was committed when on bail for the offences committed on 12 April 2000.

[13]

[10] The offence committed on Christmas Day 2004 consisted in Mr Van Den Heuvel going to the complainant's residence in breach of the restraining order, and being detained outside it by H's husband. Mr Van Den Heuvel had managed to get to approximately 20 metres away from the front of the residence before being intercepted.

[14]

[11] H's victim impact statement describes that the six year experience of being intermittently but persistently subjected to this stalking behaviour has resulted in her being diagnosed in July 2004 with experiences of a post traumatic stress disorder, and a major depressive disorder. On occasions she had lain awake at night watching doors and windows, fearing that Mr Van Den Heuvel was outside watching her, which she wrote was an "indescribable scary feeling", or fearing he might even be inside watching her, as had happened in a stalking incident on 14 December 1998, when Mr Van Den Heuvel opened a sliding door and watched her as she slept.

[15]

[12] Then there was the incident of 12 April 2000 when he entered her parents' residence, where she was staying and stole a nightie from her bedroom; when her 80 year old grandmother suddenly came upon him, this caused considerable distress to that elderly woman. H has feared that Mr Van Den Heuvel might harm any children she has.

[16]

[13] On this application for leave to appeal, Mr Van Den Heuvel's counsel conceded that it was appropriate that the learned sentencing judge activate the entirety of the unserved portion of the previously partly suspended sentence imposed on 12 March 2004. Counsel submitted however that making that term cumulative upon a 12 month term meant that Mr Van Den Heuvel could actually serve - if post-prison community-based release were not granted - a total of three and a half years imprisonment for his stalking offences committed between April 2000 and Christmas 2004, and argued that that was a manifestly excessive outcome.

[17]

[14] One matter can be readily settled. The learned sentencing judge purported to impose a concurrent term of 12 months imprisonment, separately to the 12 months imposed for the stalking offence, imposed pursuant to s 359F(8) of the Criminal Code, for the offence of knowingly contravening the restraining order. However, Mr Van Den Heuvel was not charged with that as a separate offence before the learned sentencing judge, and the respondent conceded on this application that the learned judge accordingly could not impose a separate penalty for that offence of contravention, absent any proceeding brought by the Crown for that specific offence. The learned judge could, of course, quite properly sentence Mr Van Den Heuvel (as the judge did) for the aggravated offence of stalking, for which Mr Van Den Heuvel was liable to seven years imprisonment, constituted by the crime of unlawful stalking in which one of the acts contravened an order made under s 359F. However, imposition of the concurrent 12 month sentence (the maximum available) for contravening the restraining order did not make any difference to the overall sentence the judge imposed. The order imposing that concurrent 12 month term has to be set aside.

[18]

[15] It was suggested on the application that the learned judge had erred in ordering that the activated suspended sentence be served cumulatively upon the 12 month sentence imposed for the offence of stalking committed in December 2004, because those orders contravene the observations in R v Chard; ex parte A-G (Qld) [2004] QCA 372 and in R v Gander [2005] QCA 45. Those observations are that usually where activated suspended sentences are ordered to be served cumulatively with another term of imprisonment being imposed, the order should require the offender to serve the whole (or the activated part) of the suspended sentence first, to be then followed by service of the sentence imposed for the offence (or offences) which constituted the breach of the suspended sentence. Ordinarily that would be the appropriate order, but in this matter the position was complicated by the 333 days Mr Van Den Heuvel had spent in custody after Christmas Day 2004. Those could be declared time served in respect of the offence of stalking committed on 25 December 2004, but, strictly speaking, only in respect of that offence, and not in respect of any activated portion of the previously suspended sentence.

[19]

[16] For that reason I respectfully consider that the learned sentencing judge was correct in reversing the order of sentences suggested in Chard and Gander, and imposing first the 12 month sentence in respect of which 333 days could be declared time already served, and in ordering that the activated suspended sentence then be served cumulatively upon that 12 months. The result of those sentences is, as a sentence calculation provided to this Court demonstrates, that Mr Van Den Heuvel is eligible for parole at the mid-point of the total period of imprisonment to which he was sentenced, and which began on 25 December 2004. That means he became eligible for parole on 21 May 2006.

[20]

[17] Mr Van Den Heuvel's counsel on the sentence informed the learned judge that Mr Van Den Heuvel intends to reside in Canberra with his father, when released from custody. It was submitted on this application that the total sentence imposed on Mr Van Den Heuvel was considerably higher than the sentences reviewed for offences of stalking in R v Foodey [2003] QCA 310, where those sentences in other cases ranged from two years imprisonment to 15 months imprisonment. At least two of those offenders had engaged in conduct that actually assaulted the complainant or attempted or threatened serious injury, and Mr Van Den Heuvel had not done anything like that. That submission is accurate, but none of those other offenders had persisted for six years in their stalking behaviour, and there was no appeal from the two and a half year term imposed, and partly suspended, in March 2004.

[21]

[18] That means the only real issue on this application is whether the learned sentencing judge erred in activating all of the previously suspended portion of that sentence, after imposing the 12 month sentence. I consider the learned judge did not err. Mr Van Den Heuvel is eligible for post-prison community-based release, and the information and circumstances disclosed to this Court strongly suggest that Mr Van Den Heuvel should be granted parole as promptly as possible, perhaps on the condition that he reside with his father. Mr Van Den Heuvel would certainly benefit from counselling, and has not benefited from a suspended sentence. Accordingly, I would dismiss his application.

[22]

[19] Although the application is rejected, this Court should record its appreciation of the promptness with which Mr Moynihan of counsel and his instructing solicitor acted on the day of the hearing to help Mr Van Den Heuvel (to get legal assistance, take instructions, and appear for him), and of the quality of submissions made. I would order that the application for leave to appeal:

[23]

(a) be allowed only to the extent of setting aside the concurrent 12 month term for contravention of a restraining order imposed under s 359F of the Criminal Code; and

[24]

[20] MULLINS J: I agree with the orders proposed by and the reasons of Jerrard JA.

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