R v Vose [1999] VSCA 200

24. Before dealing with these grounds, it is necessary to outline in somewhat greater length than is usual, a summary of the facts surrounding the commission of the offences.

27. In or about 1995 or 1996, the applicant became obsessed with MA, who had been featured in various advertising campaigns. It was not until early 1997, however, that MA first became aware of encountering the applicant. This encounter marked the commencement of behaviour which formed count 1 on the presentment. He and his sister were walking home from a railway station at about 5 p.m., when they were approached by the applicant who asked MA whether he was the boy from certain advertisements and attempted to question him about his advertising work. MA responded in the affirmative but indicated by continuing on his way home that he was not inclined to participate in any further conversation. When the children did not stop, the applicant followed until they turned into their own street. He then appeared to walk on in his own direction. Several weeks later the applicant made a similar approach and again, unsuccessfully, attempted to engage MA in conversation. On this occasion the children sought an alternative route home. The applicant did not appear to follow them. On both occasions the children were disturbed by the applicant's behaviour and reported it to their mother.

30. During the relevant period, the applicant habitually attended locations where he could view MA. In late 1997 MA saw, but did not communicate with, the applicant near his home. The applicant was riding a bicycle. On another occasion, the police stopped the applicant on a bicycle in MA's street. He was questioned by them in respect of an unrelated matter. They reported that he seemed agitated. On several occasions in late 1997, MA observed the applicant in attendance at Evensong where MA appeared regularly as a member of a choir. His attendance there seemed to escalate in early 1998 to once a week, but then dwindled and he was not observed there after the end of the daylight savings period. He always sat in a location which afforded a clear view of MA, but did not approach him. On 27 May 1998, whilst participating in after-school soccer training at a nearby oval, MA observed the applicant sitting on a park bench looking through a camera which was supported by a tripod. In the same month, whilst waiting with a school friend for a tram, MA noticed the applicant walk past and glance over at him. The applicant had with him a bag suitable for carrying a photographic tripod.

33. The applicant's conduct which formed counts 2 and 3 on the presentment (the conduct affecting the father and mother of MA respectively) commenced in December 1997. It involved the apparent hand delivery by him to their home of three collections of material. The first delivery included, in a clear plastic press-seal bag, a computer disk and a typed note. The note described how to locate on the Internet a site described as "Lovable Lads". Whilst the father thought the delivery strange and reported it to the police (on the basis that he could not access the data and was concerned about the spread of computer virus), he did not immediately make the connection between it and MA. The second delivery included a standard sized envelope containing pages of computer printed material. The apparently innocent text reproduced material titled "Student Bloopers", which was drawn from a site linked to the applicant's own website. The father did not feel that there was any reason to take this letter to the police, although he believed it was connected to the first delivery. The third delivery arrived on or about 16 June 1998. It took the form of a letter which advised, inter alia, that the recipients had been issued with a new e-mail account at a specified address. (A password was also specified). The mother was sufficiently concerned at the contents of the correspondence to telephone her husband at work. He accessed the e-mail account and discovered an electronic message from the applicant attaching three pictures of MA and an invitation to visit the applicant's website described as "Earthling's Lovable Lads". (Apparently, "Earthling" is the applicant's user name on the Internet.)

36. The father located the applicant's website and was shocked to find there material related to children and galleries of photographs of MA. One gallery (entitled "Earthling's Favourite Model and Choirboy") included scanned television and print advertisements and accompanying text describing the applicant's interest in MA and identifying him as a member of a church choir. A caption to a photograph taken by the applicant and showing MA looking sternly into the camera read "Shite - I reckon he might have spotted me this time". A second gallery (entitled "Earthling's Favourite Boy at Soccer Training") presented 19 images of MA and his school friends, taken with a telephoto lens at soccer training. A further page (entitled "Earthling's Opinions Page") included the applicant's personal manifesto, describing his paedophilia, his views on the appropriateness of legal restraints on such activities and his self-confessed dangerousness to those whom he perceived as a threat. The father printed copies of various of the photographs and documents and that evening attended at a police station. He also spoke with MA, who informed him that he believed he knew who was responsible and of the full circumstances of his encounters with the applicant.

39. On the following day, 17 June 1998, MA again observed the applicant crossing the road in the vicinity of the oval where he had earlier that afternoon been at soccer training, carrying a bag the size of a folded tripod.

42. Understandably, the parents were greatly concerned by the conduct of the applicant, particularly his placement of MA's photo images and personal information on the Internet and at his intrusion into their lives. MA was also greatly disturbed by the habitual and unexplained presence of the applicant in his life over a sustained period of time. His Honour commented in his sentencing remarks that the family's reaction to the applicant's intrusion into their lives was "one of absolute horror".

45. On 18 June 1998, the applicant was arrested by police officers attached to the Child Exploitation Squad Office and subsequently charged with the offences of stalking and remanded into custody. He was interviewed but exercised his right to decline to answer police questions. Later that evening, police members executed a search warrant pursuant to s.465 of the Crimes Act, at the applicant's premises and seized a large quantity of property, including electronic listening devices and instructions, micro-cassette equipment (audio), handwritten notes (recording various of the applicant's conduct in respect of MA and his family), other documents, photographic equipment, photographs, a roll of undeveloped film, a computer (containing further images of MA) and computer equipment, documents bearing the surname of the family, other personal information pertaining to them (telephone and credit card numbers), various articles of subterfuge and/or disguise, and Melways maps indicating MA's school.

48. Three of the four audio tapes retrieved contained conversations between various members of the family household in about February and March 1997. The conversations appear to have been taped covertly in the front garden of the family home.

51. The majority of the photographs seized were of MA and other unidentified boys, apparently taken without the subjects' consent or knowledge. The first of the series concerning MA was dated 6 February 1998; the last 27 May 1998. The undeveloped film matched the content of the developed photographs.

54. Of the vast documentation retrieved from the applicant's premises, many items were identified by the mother as having come from the family home. It was likely that such items, some intensely private, were discarded as household refuse and later retrieved by the applicant from the outside bin prior to rubbish collection. Other items, including correspondence relating to school fees and bank documents bearing the dates October and November 1996, however, were identified as family property that had not been disposed of and therefore must have been removed from the family home.

57. On 22 June 1998, an electronic listening device bearing a marked similarity to other devices retrieved from the applicant's premises, was located under the grate of an open fireplace in the lounge room of the family home. Instructions for its construction were found in a book entitled "Fourteen FM Bugs to Build" seized from the applicant's premises. The inference is that the applicant entered the family home to remove the October-November 1996 documentation and to plant the listening device found in the lounge room. His Honour found that the device was made by and belonged to the applicant.

60. On 9 April 1999, his Honour proceeded to hear a plea in mitigation on behalf of the applicant, during the course of which he received as exhibits various documents, including two reports dated 11 September 1998 and 8 April 1999 from consulting clinical and forensic psychologist, Mr Jeffrey Cummins (who also gave evidence) and a report dated 10 April 1996, from consultant psychiatrist Dr Lester Walton. His Honour also received a victim impact statement declared by the parents on their own and their son's behalf. Following an adjournment of the hearing, his Honour was provided with two pre-sentence reports, one dated 30 April 1999 from Mr Ian Joblin, the other dated 4 May 1999 from consultant psychiatrist,

Dr Don Senadipathy. Upon the recommencement of the hearing on 18 May 1999, his Honour heard further argument from counsel before proceeding to sentence the applicant, as indicated earlier.

63. In his sentencing remarks his Honour noted that on his website page, the applicant had written this:

"I'm unapologetically dangerous to virtually anyone who threatens me. No one should ever threaten anyone they don't know very well, and since no one knows me very well no one should ever threaten me. Revenge is righteous. I first fell in love with the boy when I was also a boy at the age of 13 years, and he was about 7 years. I believe that romantic and or sexual activity between any two people should be acceptable to the community. It is not appropriate for the Government or society to tell me who I can or cannot love, or the most fitting way in which I can love. I don't understand why people think that children are unable to give consent to romantic and or sexual behaviour. The kid either enjoys the sexual behaviour or they don't. Special laws to protect children are not necessary. It is not far wrong to say, I am green eyed monster, whenever I observe very public displays of romantic behaviour amongst heterosexual people, even on television. I have wanted to do exactly the same sort of thing with little boys for half my life. It pisses me off that I can't do it. The day I get caught having sex with a child, I go to war with the world around me, starting with governments and the police and anyone else stupid enough to get in my way".

67. The transcript of the hearing of the plea in mitigation and his Honour's sentencing remarks make it clear that he was most concerned to understand as fully as possible the mental make-up of the applicant; hence the amount of psychological and psychiatric evidence that was placed before him which his Honour obviously analysed in great care. In summary, he concluded, inter alia, that, on the material before him -

(a) The applicant had some understanding of the likely consequence of his stalking but, because of his mental state, he had less understanding than an objective person would have.

(b) The applicant had little or no insight into his own problems.

73. His Honour was satisfied on the basis of the undisputed evidence before him that the applicant was "a real danger to the community", having regard to his paedophilia, his prior convictions and his dangerously obsessive personality. His Honour later said that on the evidence before him, the applicant was "on the balance of probabilities, a very real potential danger to the community" and that would only change if he were to undergo treatment and supervision while he was free in the community. His Honour concluded that that was unlikely to occur.

76. I now turn to examine the grounds in the order in which they were argued.

79. The first grounds argued by Mr Holdenson who appeared for the applicant, were grounds 3 and 4. Under cover of these grounds it was submitted that in sentencing the applicant, his Honour misapplied the relevant sentencing principles and consequently the exercise of his sentencing discretion miscarried. Thus, it was argued, this Court should re-exercise that discretion.

82. Mr Holdenson began by conceding, rightly I think, that this was clearly a case where the protection of the community was a matter that was to be given some weight in the sentencing consideration. It was also agreed that a sentencing judge could take into account specific deterrence when considering sentence. He contended, however, that in the circumstances, it was not open to his Honour to give those matters the excessive weight which he did, for a number of reasons.

85. First, Mr Holdenson argued, as I understood him, that his Honour was not entitled to give such weight to the sentencing purpose to which I have referred earlier because he found that the applicant was relevantly dangerous on the balance of probabilities and not beyond reasonable doubt. There was, however, no dispute between the parties during the hearing of the plea in mitigation that the applicant was a potential danger to the community. The unchallenged evidence was to that effect and it is plain that his Honour accepted that evidence. The mere fact that he said that he was satisfied on that matter on the balance of probabilities is not determinative of the standard to which this issue was established. On the evidence which was accepted by his Honour there could only be one finding, namely, that in the circumstances, the applicant was a potential danger to the community. In any event, it is artificial to speak of the need to have that fact established beyond reasonable doubt given the above circumstances and the fact that it was conceded on the applicant's behalf that the need to protect the community from the applicant was a purpose relevant to sentencing considerations in this case.

88. Mr Holdenson next submitted that it was not open to his Honour to give the weight he did to the sentencing purpose specified in s.5(1)(e) of the Sentencing Act because in so doing his Honour thereby failed to have sufficient regard to the sentencing purpose specified in s.5(1)(a) of the Sentencing Act and of the personal circumstances of the applicant at the time of the commission of the offences. It was further argued that in circumstances where it was clear that specific deterrence would be difficult to achieve, as was the case here, only limited weight ought to be given to that matter. In support of these contentions, Mr Holdenson relied on R. v. Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398. In that context he referred to the "condition of the applicant", which I took to be his mental state, which his Honour found consisted principally of his paedophilia, his obsessive personality, his relatively limited understanding of the consequences of his offending behaviour and his limited insight into his own problem.

91. In Tsiaras, this Court was concerned with an applicant who had been diagnosed as having "an ongoing psychiatric illness", including possible schizophrenia and auditory hallucinations. In that case, evidence was adduced at the trial that the offender was suffering from a serious psychiatric illness, and on the plea it was submitted that the judge should have regard to the offender's schizophrenic illness, which by then was well established in terms of the law laid down in R v. Anderson [1981] VicRp 17; [1981] V.R. 155.

94. In my view, R v. Lewis (unreported, Court of Appeal, 20 April 1998) and R v. Yaldiz [1998] 2 V.R. 376, show, inter alia, that whatever the proper characterisation of the offender's mental state, whether in a particular case that state should reduce or eliminate such matters as general deterrence, will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the applicant.

97. In the present case, in my view, the nature of the applicant's mental state was not such as to reduce, or reduce to any material extent, his moral culpability for the offences. His mental disorder consisted essentially of a personality and not a psychiatric, disorder. In any event, as the learned sentencing judge found, the offences involved a high degree of planning and thought on the applicant's part and they were performed deliberately and over a lengthy period. The applicant had some understanding of the probable consequences of his offending conduct, but pursued his desires without regard to the feelings of the victims or to the law.

100. In my view, his Honour was well justified on the material before him, in taking into account to the extent that he did, the need to protect the community from the applicant. In my opinion, he did not give undue weight to that factor. There was little, if any, evidence before his Honour suggestive of any real likelihood of the applicant's rehabilitation. Further, consistent with the fact that the applicant had limited insight into his problem, there was the prospect of him re-offending.

103. His Honour did recognise, however, that the approach which has regard to the protection of the community as the "primary" reason for imposing the sentence, was not available in this case and that he was bound by, inter alia, s.5 of the Sentencing Act, which entitled him to take that factor into account in fixing the appropriate sentence. He said that he would take that principle into consideration to the fullest extent that the law permitted. Further, his Honour also made it plain that he did not approach the sentencing task on the basis that the applicant was a paedophile, that he had committed sexual offences against children or on the basis of what he might do in the future.

106. The mere fact that his Honour considered that he should give as full effect as possible to the sentencing purpose specified in s.5(1)(e) of the Sentencing Act does not mean that he thereby failed to have sufficient regard to the sentencing purpose contained in s.5(1)(a). There is no reason why both sentencing requirements cannot be satisfied even if the sentencing judge regards the particular circumstances of the case as requiring that one of those purposes should be satisfied to the fullest extent. His Honour clearly had just punishment in mind when he came to sentence the applicant. He said:

"It is the task of a sentencing judge to sentence an offender for such that he or she has done, for that which constitutes the offence or crime for which he or she has been convicted and do that in a way which accords with the law that applies to the case".

110. Further, for the reasons I have already given, in my view, the applicant's mental state was not such as to make specific deterrence so difficult to achieve so as to not warrant pursuing it. Absent any suggestion that the applicant was suffering from a relevant psychiatric illness, there is no doubt that in the circumstances of this case, the principle of specific deterrence was relevant to his Honour's sentencing considerations. In the circumstances of this case, the applicant's lack of insight into his own problems did not, in my view, render that sentencing principle irrelevant. Moreover, there is nothing in his Honour's sentencing remarks which shows that he gave undue weight to specific deterrence.

113. I am of like view in relation to the contention made by the applicant that his Honour failed to impose a sentence which was, in all the circumstances, just. In that regard, I refer in particular to what I will say later in relation to the contention that the sentence was manifestly excessive. The real difficulty faced by the applicant in relation to the two grounds which I have been analysing was that he sought to attack the weight which his Honour gave to the matters just discussed. Such an attack is usually difficult to make out because the relevant discretion is vested in the sentencing judge (see R v. Bernath [1995] 1 V.R.271, per Callaway, J.A. at 277).

116. For these reasons, it is my view that the applicant has not made out the above two grounds.

119. I now turn to consider the submissions in relation to grounds 1 and 2 which were argued together. I note at the outset that Mr Holdenson did not press the contention that his Honour gave undue weight to the applicant's prior convictions, and I say no more about it other than this: had the point been argued, it is my view that these matters were properly taken into account by his Honour in his sentencing considerations as exhibiting bizarre and dangerous behaviour on the part of the applicant and as showing that he had a dangerously obsessive personality. Nothing that his Honour said in his sentencing remarks indicates that he gave undue weight to them.

122. Mr Holdenson's principal argument was that, given the significant mitigating factors in this case, namely, the applicant's plea of guilty, the time at which and the circumstances in which the applicant's plea of guilty was entered, and the substantial difficulties which had been and will be experienced by the applicant in custody, the sentence of four years in relation to count 1 was manifestly excessive.

125. Before dealing directly with this submission, I mention that for reasons I have given earlier, in my view, the applicant's mental or psychiatric state was not such as to make him an inappropriate vehicle for general deterrence or reduce to any material extent his moral culpability.

128. I agree with his Honour that the applicant's conduct in stalking the family in this case was very serious and, in my view, was severely exacerbated by the young age of MA, the publication of personal material directly relating to and identifying him on the applicant's website which is accessible to other paedophiles, the connection between the conduct and paedophile activity generally, and the detrimental effect that his behaviour had and will continue to have on the family, particularly the young victim.

131. The victim impact statements that were before his Honour graphically described the horror in which the family had lived because of the applicant's offending behaviour and the long-term effect it will have on the them, particularly on MA. It is only their courage, presence of mind and consideration for one another that has enabled them to survive as well as they have done, the applicant's conduct and unlawful intrusion into their lives. The fact that the applicant did not commit a sexual offence or otherwise violate physically MA is irrelevant, in my view, to the crime of stalking or to assessing the gravity of the offences to which he pleaded guilty. The offences were, as I have said earlier, carefully planned by the applicant over a lengthy period and he knew or must have known even in general terms that his attention to the victims was not wanted and that it caused distress. The crimes committed by the applicant were serious. Parliament has viewed stalking as a serious crime, prescribing a maximum penalty of 10 years' imprisonment. In my view, given the circumstances of this case, the sentence of four years on count 1 falls within the range of sentences available to his Honour. Consequently, it is not, in my view, manifestly excessive.

134. For these reasons, I would dismiss the application.

138. I agree with the conclusion of Chernov, J.A., and I would subscribe to the reasons His Honour has given for each of them.

142. I agree that this application should be dismissed for the reasons given by Chernov, J.A.

145. I add two minor additional comments. First, with regard to the sentencing purpose of just punishment to be found in paragraph (a) of s.5(1) of the Sentencing Act 1991, on which Mr Holdenson placed considerable reliance, it is to be remembered that the paragraph speaks of "punishment to an extent and in a manner which is just in all the circumstances". The circumstances may, of course, include ones adverse to the offender.

148. Secondly, as to the judge's finding - not altogether easy to understand - that the applicant was, "on the balance of probabilities", a very real potential danger to the community, besides what Chernov, J.A. has said, I am of the opinion that the succeeding paragraphs of the sentencing judge's reasons show that the finding in question related to a topic to which his Honour was at pains to say he could not give free rein. Further, I doubt that reliance on the finding can be attacked on the ground that it was not made beyond reasonable doubt, without that being added by leave as a substantive ground. No such leave was sought.

152. The order of the Court is that the application for leave to appeal against sentence stands dismissed.