Smith v Elliot [2007] ACTSC 65

2. Section 474.17(1) of the Criminal Code Act 1995 (Cth) provides:

Using a carriage service to menace, harass or cause offence

(1) A person is guilty of an offence if:

(a) the person uses a carriage service; and

(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 3 years.

3. The charges relate to one offence under that subsection which is alleged to have occurred on 5 February 2007, six offences which are alleged to have occurred on 6 February, three offences on 7 February and two offences on 9 February. Each offence involved a different complainant. The magistrate described the circumstances concerning each offence:

The facts in relation to each charge are similar. On each occasion the defendant used his home telephone to telephone the complainant referred to in the charge, in each case a woman, and engaged the complainant in conversation under the pretext of conducting a survey on behalf of the firm of Johnson & Johnson. Usually the topic of the bogus survey was hair care or hair removal and the defendant would gradually become more personal in his questioning, turning his questions to seek increasingly intimate, personal and/or sexual details from the complainant.

4. The sentencing of persons convicted and dealt with in the courts of the Australian Capital Territory for Federal offences depends upon the complementary interaction of the sentencing provisions in the Crimes Act of the Commonwealth, with the Crimes (Sentencing) Act 2005 (ACT) and the Crimes (Sentence Administration) Act 2005 (ACT) which are the relevant Territory laws that are applied by s 68 of the Judiciary Act 1903 (Cth) (Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174).

(a) The sentence is, in all the circumstances, manifestly excessive;

(b) His Honour, Magistrate Burns, failed to give sufficient consideration to, and properly investigate, the Appellant's mental health issues;

(c) His Honour gave insufficient weight to the Appellant's personal circumstances and to his prospects of rehabilitation; and

(d) His Honour made findings of fact that were not open to him regarding the circumstances of the offences.

6. On the hearing of this appeal, Dr Boss, who appeared for the appellant, was given leave to add a further ground, which became ground (e) of the grounds of appeal:

(e) The magistrate acted on a wrong principle in sentencing.

7. It is convenient to deal with that ground at the outset. In the remarks on sentence the magistrate said:

To my mind the primary sentencing consideration for the present offences is one of deterrence.

8. Dr Boss submitted that s 7(2) of the Crimes (Sentencing) Act 2005 provides that no purpose in sentencing must be given any greater weight than any other. Accordingly, it was said that equal weight should have been given to issues concerning the appellant's mental health and his rehabilitation. In expressing the matter in the way that he did, it was said that the magistrate was in error in not giving equal weight to those issues. The submission relied upon what was said to be the effect of s 7 of the Crimes (Sentencing) Act 2005. That section provides:

(1) A court may impose a sentence on an offender for 1 or more of the following purposes:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;

(c) to protect the community from the offender;

(d) to promote the rehabilitation of the offender;

(e) to make the offender accountable for his or her actions;

(f) to denounce the conduct of the offender;

(g) to recognise the harm done to the victim of the crime and the community.

(2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

9. A plain reading of that section shows that the section does not have the effect for which Dr Boss contends. The purpose of subs 7(2) is not to provide for equal weight to be given to the purposes set out in subs 7(1), but to deny any possible implication from the order in which the purposes are set out in that subsection. The question of weight to be given to any or each of the provisions is to be determined by the circumstances of the case. In the present case, it was open to the magistrate to place at the forefront of his consideration the purpose of deterrence, both general and personal. As will appear, the particular matters to which the magistrate could have regard, amply justified the magistrate's conclusion as to the place of deterrence in determining the appropriate sentence.

10. In respect of the ground of appeal concerning what was said to be the mental health issues, Dr Boss submitted that the magistrate did not give proper consideration to s 16A(2)(m) of the Crimes Act. That subsection provides:

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

...

(m) the character, antecedents, age, means and physical or mental condition of the person;

11. This provision in its terms requires an overall personal assessment of the offender as part of the sentencing process. It does not place any special attention on the mental condition of an offender in contradistinction to any of the other characteristics referred to in the subparagraph. I think that what was really being put is that the magistrate should not have rejected an application that was made on behalf of the appellant for a psychiatric report and that s 16A(2)(m) justified the call for such an assessment and required that it be made. In that regard I point out that all that the magistrate had before him on that aspect was a report by a clinician from the Court Alcohol and Drug Assessment Service (CADAS) and a comment in the pre-sentence report. The CADAS report refers to the appellant having a history of suicide attempts between 2002 and 2004, one of which resulted in a psychiatric unit admission for a short period. There are also references in that report to a history of depression as well as alcohol problems, but there is little elaboration of those matters. The pre-sentence report only commented that the appellant had a belief in a "low" mental health due to the impact of his offending behaviour on his affairs. In submissions before the magistrate it was generally put that the appellant had not addressed issues which might impact upon his psychiatric condition. The application that was thus made to the magistrate was an application for a "forensic mental health assessment" to be ordered. However, it seems to me that such an application is quite misconceived. The magistrate's power to order a report concerning mental health issues can only be found in the provisions under Part 13 of the Crimes Act 1900 (ACT). Those provisions apply in respect of issues concerning unfitness to plead and mental impairment. These matters were not issues before the magistrate. It is clear that the matters that counsel sought to address by such an assessment were those of risk assessment and treatment of the appellant were he to remain in the community having regard to any mental health issues that might be identified. It follows that this was very much an issue for the appellant to provide material of this nature rather than for the court to order it.

**12. Several matters were put forward where it was said that the magistrate had made findings of fact regarding the circumstances of the offending that were not open to him on the evidence.

13. The magistrate having described the nature of the offences, went on to say:**

Not surprisingly the complainants expressed fear and discomfort as a consequence of the defendant's actions. The complainants must have felt violated and afraid that the caller was not simply telephoning them at random but may be stalking or observing them. The defendant's offences must have made his victims fearful, even in what should have been the safety of their own homes.

**14. It was submitted that this conclusion of the magistrate cannot be justified from the statement of facts that he had before him and that as a result he had taken a more serious view of the offence than was justified.

15. The statement of facts included expressions that were taken verbatim from the complainants. Each expression that I now list was made by a separate complainant and was to the effect that she:

• "[felt] scared and uncomfortable and that the questions were of an offensive nature";

• "had been taken advantage of and was very upset after the phone call. She was concerned for her safety as the defendant may have her address";

• "[felt] uncomfortable and she felt the conversation was inappropriate and offensive";

• "[felt] violated and scared and felt the male on the phone was very offensive";

• "[felt] the phone call was intrusive and that the questions were offensive and made her feel sick";

• "was shaking as she felt anxious and offended about the questions the defendant had asked";

• "started to feel scared", "extremely fearful", "began to cry as she was upset by the phone calls";

• "[felt] uncomfortable, scared and violated"; and

• "[felt] violated and thought the questions were very inappropriate and offensive".

16. On the basis of these expressions on the part of the complainants, I consider that the magistrate's conclusion that, on the part of at least some of the complainants, they would have felt that the caller was not simply telephoning them at random but may have been stalking or observing them. That is an inference which was well open to him to draw and to weigh in his consideration of the seriousness of the offending.

17. It was then said that the magistrate should not have found, as he did, that the appellant's "acts were clearly well planned and well thought out". The magistrate seems to be referring to a view expressed by the author of the pre-sentence report who reported:**

Mr Smith is not taking full responsibility for what would seem to be well thought out and detailed planning in preparation for making the phone calls to his victims.

**18. It may be noted that this comment was not challenged and the author of the pre-sentence report was not required for cross-examination. Further, the prosecutor addressed on this point and described the offending as an "elaborate scheme". From the statement of facts there was clearly a planned and methodical series of questions initially designed to get the trust of the complainants before moving into more and more offensive questioning. I would add that the view expressed in the pre-sentence report concerning the appellant's failure to take full responsibility for his actions is also a matter that cannot count in his favour. It follows from a consideration of these matters that I think that the view that the magistrate took as to the nature and seriousness of the offending behaviour was not only open to him but was well justified.

19. It was also said that the magistrate's finding that the appellant was not significantly intoxicated at the time of the offences was said to be inconsistent with the CADAS report. However, that report was not directed to the specifics of the offences but rather remarked upon the appellant's consumption of alcohol in general terms and, more specifically on the days that his daughter was not in his care. Without evidence related to the appellant's condition at the time of the commission of each of the offences, in my view, the appellant cannot make good a submission that he was significantly intoxicated at the time of the commission of the offences.**

**20. The final point made was that the sentence was manifestly excessive in all the circumstances particularly having regard to the two cases to which I was referred.

21. Weinert v Commonwealth Department of Public Prosecutions [1999] SASC 34, unreported, 9 February 1999, was an appeal before Nyland J, which concerned six telephone calls involving heavy breathing that were found to be of an overtly sexual nature. All the calls were to the same number and the same recipient who was, a 15 year old girl and on each occasion was at home alone. In that case the magistrate had imposed a sentence of six months imprisonment which was wholly suspended. The offender appealed. The offence, which was under consideration in that case, whilst in substantially the same terms as the offence under consideration in this case, was an offence under s 85ZE(1) of the Crimes Act which carried a sentence of imprisonment for one year. The sentence imposed (whilst taking into account the fact that six offences were charged) amounted to one half of the maximum provided for the offence at that time. An important consideration, which no doubt influenced the suspension of the sentence of imprisonment was that the offender in that case had no previous convictions. The appeal by the offender was dismissed.

22. Maier v Police [2004] SASC 367, unreported, 19 November 2004, was an appeal before White J. In that case 26 telephone calls were made to nine separate people charged as being of a harassing nature but were in terms similarly offensive as those in the present case. There was in that case a previous history of the appellant making offensive calls. At first instance the magistrate had imposed a single sentence of imprisonment of 18 months to be released after serving eight months. White J considered the sentence to be manifestly excessive. He referred to the offender's mental condition which he regarded as falling into the category of offenders referred to by King CJ in Mason-Stuart v R [1993] SASC 4322; (1993) 61 SASR 204. In that case, King CJ said of a defendant of low average intelligence with a substantial degree of diminished responsibility that:**

... the degree of the appellant's subjective responsibility is so diminished by the damage to the brain which he has suffered, that a court must try to find some way of protecting the public which does not impose the heavy burden of a long period of imprisonment upon a person whose subjective responsibility has been so diminished.

It is a problem of reconciling the mercy which ought to be shown to a person whose subjective moral responsibility is low with a need to protect the public from this sort of act of which the appellant was guilty. The importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a deterrent to other members of the public, is considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be.

**23. I do not consider that the appellant in the present case falls into such a category. In addition, White J had regard to an opinion given by the offender's medical practitioner that a custodial sentence would be severely disruptive to the offender's rehabilitation and would be highly likely to precipitate a significant deterioration in his condition. These are matters that would clearly justify a significant reduction in the appropriate sentence to be imposed. Neither of these matters apply to the appellant in this case.

24. In the result in Maier (supra), the sentence was reduced, in effect, to one of six months imprisonment, credit being allowed for the six weeks that had been spent in custody. In addition a recognizance was required with supervision conditions and the requirement to perform 120 hours of community service. An important consideration is that the offence was also one under s 85ZE(1) of the Crimes Act, which at that time carried a maximum penalty of imprisonment for one year. In my view an analysis of Maier does not assist the appellant to establish that the sentence imposed on him was manifestly excessive.

25. The appellant's submissions on this appeal do not refer to what I regard as a significant matter pertinent to his sentencing. On 13 September 2004, the appellant was convicted on seven charges of harassing or menacing via the telecom service. I take these to be charges under s 85ZE of the Crimes Act. In respect of those offences, he was convicted and sentenced to an effective sentence of six months imprisonment to be served by way of periodic detention as well as a sentence of six months imprisonment which was suspended upon him entering into a recognisance to be of good behaviour in the sum of $2,000.00 and to accept supervision in respect of programs including the Adult Sex Offenders Program. Accordingly, the appellant is not in a position to ask the court to extend leniency to him in relation to his offending for substantially similar offences in respect of which he has already been given a significant rehabilitative opportunity. On that basis alone, I would have thought it inevitable that a significant period of imprisonment served by way of full-time custody was the appropriate starting point in any consideration of the appellant's offending.

26. It seems to me that the sentence imposed by the magistrate was well within his sentencing discretion.

27. In arriving at the sentence, the magistrate was of the view that an appropriate sentence would have been 18 months imprisonment but taking into account the early plea of guilty, the history of depression and the medical conditions that are likely to make serving a term of imprisonment more onerous, the sentence should be reduced to one of 10 months imprisonment. That was to be the single sentence to be imposed on all the charges. The magistrate then proceeded to set a non-parole period of five months.

28. In setting a non-parole period I consider that the magistrate erred. Section 19AC(1) of the Crimes Act provides that where a Federal sentence does not exceed three years, the court must make a recognizance release order in respect of the sentence and must not fix a non-parole period. I consider it appropriate that I quash the order fixing a non-parole period and in lieu thereof make a recognizance release order. I confirm the sentence of ten months imprisonment to take effect from 18 June 2007 and to end on 18 April 2008 and order that the appellant be released on 18 November 2007 on a recognizance release order for a period of five months from that date on condition that he accept the supervision of the Chief Executive of ACT Corrective Services or the Chief Executive's nominee for the period which he is subject to that order.

29. It is for these reasons that on 9 August 2007 I upheld the appeal for the limited purpose of quashing the setting of a non-parole period. In lieu thereof I made a recognizance release order releasing the appellant after he has served five months imprisonment of the term of 10 months imprisonment that the magistrate had imposed. The period of that order is to be five months.**

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the appellant: Legal Aid Office (ACT)

Solicitor for the respondent: ACT Director of Public Prosecutions