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[2023] ACTCA 33
Court of Appeal (ACT)
2023-08-03
Baker, McWilliam and Abraham JJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Vuolo v Fall Citation: [2023] ACTCA 33 Hearing Date: 19 May 2023 Decision Date: 3 August 2023 Before: Baker, McWilliam and Abraham JJ Decision: The appeal is dismissed. Catchwords: APPEAL – CRIMINAL LAW – Appeal against sentence – offence of stalking – whether non-conviction order should have been made – whether error in finding non-conviction order was an “outlier” – whether error in implied finding that a non-conviction order accompanied by a good behaviour order was not punishment – whether sentence nevertheless appropriate – error established but sentence under appeal appropriate – appeal dismissed Legislation Cited: Crimes Act 1900 (ACT) s 35 Crimes Sentencing Act 2005 (ACT) ss 7, 17, 33 Crimes (Sentencing Procedure) Act 1999 (NSW) s 10 Magistrates Court Act 1930 (ACT) s 219F Cases Cited: Balthazaar v The Queen [2012] ACTCA 26 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 Fall v Vuolo [2022] ACTSC 249 Frahm v R [2014] NSWCCA 10 Hili v The Queen [2010] HCA 45; 242 CLR 520 Kinnane v Beattie [2022] ACTSC 265; 372 FLR 358 Proud v Sladic [2014] ACTCA 26; 67 MVR 485 R v AB [2022] NSWCCA 3 R v CV [2013] ACTCA 22; 223 A Crim R 67 R v Ingrassia (1997) 41 NSWLR 447 R v Mauger [2012] NSWCCA 51 Tracey v The Queen [2020] ACTCA 51 Wells v Mount [2020] ACTSC 333 Wong v The Queen [2001] HCA 64; 207 CLR 584 Parties: Teijo Tapani Vuolo (Appellant) Nicholas Fall (Respondent) Representation: Counsel F J Purnell SC (Appellant) K McCann (Respondent) Solicitors Aulich Criminal Law (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 60 of 2022 Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Kennett J Date of Decision: 15 September 2022 Case Title: Fall v Vuolo Citation: [2022] ACTSC 249 The Court:
The appellant in this appeal was found guilty of one charge of stalking contrary to s 35 of the Crimes Act 1900 (ACT) (Crimes Act). That finding followed a two-day hearing conducted in the ACT Magistrates Court. The offence was found proven in relation to the appellant stalking his ex-partner on six occasions, in just over a three-month period in the same year, namely on 4 February, 8 February, 31 March, 16 April, 10 May and 14 May 2020.
On 20 April 2022, the Magistrate sentenced the appellant pursuant to s 17(2)(b) of the Crimes Sentencing Act 2005 (ACT) (Sentencing Act), which permits a sentence to be imposed without entering a conviction. A good behaviour order was imposed on the appellant for a period 12 months.
The respondent appealed the sentence to a single judge of the Supreme Court (the primary judge). The respondent argued that the sentence was manifestly inadequate or otherwise in error, including complaints that a number of specific errors had been made. The respondent argued that a conviction should have been entered.
The appeal was upheld. On 15 September 2022, the primary judge set aside the sentence imposed in the Magistrates Court: Fall v Vuolo [2022] ACTSC 249 (primary judgment). The appellant was resentenced by a conviction being entered, and a good behaviour order again imposed for a period of 12 months, backdated to the original date of the sentence.
By appeal commenced on 13 October 2022, the appellant seeks to quash or set aside the orders made by the primary judge. The appellant seeks reinstatement of the original sentence of the Magistrate. As will be explained, we have found one of the grounds of appeal established. However, on reconsideration of the Crown appeal, we would arrive at the same conclusion as the primary judge and therefore would not interfere with the orders made.
In order to understand the grounds of the appeal, it is helpful to first know the conduct that was the subject of sentence and the critical part of the reasons of the primary judge.
Facts of the offending
The facts found by the Magistrate in finding the respondent guilty were summarised at [4] of the primary judgment, as follows (emphasis added): (a) The respondent and the victim… were married between 2010 and 2017. (b) There are three children of their union who, at the time of the offending, were aged 10, seven and four. (c) Around June 2018, the respondent and [the victim] commenced an informal arrangement for shared custody of the children. This involved a handover every two days at around 5:45 PM at a car park in Gold Creek, ACT. The children would arrive in the car belonging to the parent with whom they had been spending time, walk to the other parent’s car, and leave in that vehicle. (d) On six occasions between 4 February and 14 May 2020, following handover of the children, the respondent either followed [the victim] in his car as she drove away or was ahead of her and backtracked to be behind her. On some of these occasions, the children were in [the victim’s] car; on others they were with the respondent in his car. Sometimes [the victim] was driving to her home and sometimes to her new partner’s home. On each occasion the respondent followed the victim through several turns on a route inconsistent with the shortest route to his own home. (e) On each occasion, [the victim] recognised the respondent’s car and observed him in it. She took various kinds of evasive action. She felt fearful and harassed on these occasions. (f) The Magistrate found that the respondent was at least reckless as to whether this behaviour would cause apprehension or fear of harm on the part of [the victim].
The description in (e) is emphasised because it is the subject of the third ground of complaint on this appeal. In the extract of the primary judge’s reasoning that follows, the above summary was incorporated as “the features of the offending”.
Reasons of the primary judge
The grounds of appeal with the most significance for its determination all derive from five paragraphs in the primary judge’s reasoning ([30]-[34]). That critical passage is most efficiently recorded once at the outset (emphasis added): 30. …I am persuaded that the sentence imposed in this case is manifestly inadequate. This is for the following reasons. 31. First, in the light of the features of the offending referred to at [4] above, I cannot agree that it was “very much towards the lowest level of objective seriousness”. It was, in my view, well removed from the least serious case of stalking that could be imagined. The present sentence, if treated as a guide for future decisions, would lead to a wide range of offending not attracting punishment. That would be inconsistent with the understanding that a non-conviction order is “a disposition which falls outside of the ordinary”: Bennet v Daley [2021] ACTSC 159, [49] (Burns J). 32. I say this because the making of a non-conviction order here cannot be explained on the basis that the respondent’s personal circumstances called for some special degree of leniency. Although I have concluded that it was not improper for the Magistrate to take into account the detriments that the respondent had suffered as a result of the charges against him, that cannot overwhelm considerations of deterrence and denunciation. Nor did the respondent’s circumstances here call for such a degree of leniency as to demand that no conviction be recorded. It is to be expected that many other perpetrators of stalking offences will suffer similar extra-curial consequences in terms of family law proceedings and compromised employment prospects. 33. Secondly, and relatedly, the sentence does not adequately denounce the offending. The legislature has chosen to criminalise this behaviour and provide for a maximum penalty that is not insignificant (two years’ imprisonment). Sentences imposed by the courts should reflect that assessment of the seriousness of the behaviour and the need to deter it. 34. Thirdly, it was submitted that the sentence is out of kilter with current sentencing practice and thus offends the value that the law places on consistency and predictability. In this connection I was referred to eight recent decisions of this Court and the Magistrates Court, which I will not summarise individually (they were Morrison v Maher (No 2) [2022] ACTSC 63; R v EN [2020] ACTSC 302; R v EP [2019] ACTSC 242; R v NO (No 2) [2018] ACTSC 39; R v Kulcycski [2018] ACTSC 9; R v DD [2017] ACTSC 109; Police v Paul Stanik [2022] ACTMC 2; Amberger v Stagg [2019] ACTMC 26). Needless to say, all depended on their own facts and none are closely comparable to the present case. All of these cases involved offending that was more serious than the offending in the present case; however, it is noteworthy that all resulted in a sentence including a term of imprisonment and none was wholly suspended. I am persuaded that the sentence in the present case, including as it does a non-conviction order, is an outlier; and this reinforces to some degree the reasons I have set out above. However, the contrast with other cases is not so clear as to amount in its own right to a sufficient basis for concluding that the sentence is inadequate.
Again, the emphasised passages highlight the findings that are the subject of grounds of complaint (respectively Grounds 6, 3, 5 and 1 below) in this appeal. Grounds of the present appeal
Seven grounds are raised, with leave to amend the notice of appeal to include the seventh ground being granted at the hearing. They are paraphrased here as follows: (a) Ground 1: The primary judge erred in concluding (at [34]) that the original sentence, namely of a non-conviction order, is an outlier for offences pursuant to s 35(1)(b) of the Crimes Act. (b) Ground 2: The primary judge erred in finding (at [7], set out separately below) the use of a vehicle in the commission of the offence was a relevant and aggravating feature. (c) Ground 3: The primary judge erred by misrepresenting (at [4]) the facts of the offence found by the Magistrate, namely that the victim felt “fearful and harassed” by the appellant’s actions. (d) Ground 4: The primary judge erred in failing to have proper regard to the authority of Wells v Mount [2020] ACTSC 333 (Wells), where a non-conviction order was imposed for an offence of stalking. (e) Ground 5: The primary judge erred (at [31]) in finding the original sentence “would lead to a wide range of offending not attracting punishment.” (f) Ground 6: The primary judge erred (at [30]) in finding the original sentence was manifestly inadequate. (g) Ground 7: The primary judge erred in finding (at [36], set out separately below) there was no residual discretion to refuse to intervene with the original sentence even where error is established.
Grounds 1 and 4 – the finding that the non-conviction order was “an outlier”
The competing submissions
The appellant’s complaints are that the finding by the primary judge that the non-conviction order originally made was “an outlier” was based on flawed reasoning (Ground 1).
It was said to be wrong because the primary judge did not consider the case of Wells (Ground 4), where a non-conviction order was made for the offence of stalking. If Wells had been considered, his Honour would have appreciated that the sentence imposed by the Magistrate was not an outlier and that a non-conviction order was within the sentencing Magistrate’s discretion.
The reasoning leading to the finding was submitted to be flawed because the comparison was made against cases that the primary judge had already found were not comparable. Put another way, the primary judge did not compare apples with apples when finding that one was an outlier.
The respondent made a number of submissions in respect of these two grounds. Those of most significance included: (a) That the statement made by the primary judge should be viewed in the context of the overarching finding. It was put as indicative of inadequacy but was expressly considered not to be determinative of it. (b) The primary judge did not find that any of the cases were closely comparable on their facts. In those circumstances, it may have been incorrect for the primary judge to refer to the appellant’s sentence as an outlier. However, the ultimate conclusion that the sentence was manifestly inadequate was not dependent upon the reasoning that the appellant’s sentence was an outlier. (c) Wells was a case with very different facts and offending. It involved a 24-hour period where the offender had made 27 unanswered calls to the complainant and sent approximately 100 text messages containing various types of verbal abuse. That was the conduct that constituted the stalking offence. (d) Even if the primary judge had considered Wells as part of any sentencing pattern, the decision “could only have confirmed his Honour’s view that the appellant’s sentence was an “outlier” in the context of family violence stalking offences.”
The applicable principles
The starting point for resolving the competing arguments is s 33(1)(za) of the Sentencing Act, which provides that the Court must have regard to current sentencing practice and patterns when considering how an offender must be sentenced.
As to this obligation, the High Court has explained that: (a) While past sentences “can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence”, the range established by past sentences does not “fix the boundaries within which future judges must, or even ought, to sentence”: Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [53]-[54]. (b) The consistency in sentencing that is sought is consistency in the application of the relevant legal principles, rather than numerical equivalence: Hili at [48]-[49]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41].
Was there error in finding the original sentence was an “outlier”?
The impugned passage is his Honour’s reasons is the statement that he was “persuaded that the sentence in the present case was an outlier”, which reinforced “to some degree” the reasons that had been set out earlier in the primary judgment.
On a proper reading of his Honour’s reasons, no error is established, either as to his conclusion that the sentence was an outlier or in his failure to refer to Wells.
The primary judge correctly observed that all the previous sentences to which he referred each involved offending that was more serious than the appellant’s conduct. The primary judge went on to observe that “all resulted in a sentence including a term of imprisonment and none was wholly suspended.” Given the more serious offending, that is unsurprising. The primary judge was well aware of the differences between those cases and the present, making it clear that “none are closely comparable to the present case.” In that context, what his Honour was saying was that, even allowing for the fact that the selection of cases to which his Honour was taken involved more serious offending, the entering of a non-conviction, given the circumstances of this case, was an outlier. That statement is correct.
As the appellant submitted, the primary judge did not refer to Wells, even though that decision had been drawn to his Honour’s attention.
Wells involved less serious offending and a number of differentiating factors. These included what the Court found to be extenuating circumstances impacting upon the offending and further evidence admitted on appeal as to the consequences for that particular offender following the entry of a conviction at first instance. In particular, the Court concluded that the offender’s mental condition was a “significant extenuating circumstance” relevant to the consideration of the imposition of a non-conviction order. Further, this case was not in the context of family violence but resulted from a dispute the between business associates who had fallen out. Wells is a case far removed from the present case.
As the respondent submitted, the failure to refer to a sentence imposed in another case is not of itself an error. Moreover, although a non-conviction order was made in Wells, it was equally not a measure of whether the sentence under consideration was “an outlier”, due to the different features of the offending. Indeed, as the respondent submitted, a consideration of Wells reflects that the appellant’s sentence is an outlier.
Selecting one case where a non-conviction order was made does not demonstrate error in the primary judge’s finding that the sentence imposed in the court below was an “outlier”. It says nothing about this case. In any event, it has been said that it “is always possible to find cases which favour a particular outcome”: Frahm v R [2014] NSWCCA 10 at [19]. As explained above, the search is not for numerical equivalence but for consistency in application of relevant legal principles. Without more, a sentencing judge does not fall into error merely by failing to refer to one other sentence imposed in a case for the same offence.
Pointing to Wells, one case where a non-conviction order was made for an offence of stalking where significant extenuating circumstances were established, does not call into question the primary judge’s finding of manifest inadequacy in relation to the sentence for the present offence. We also note that, on the primary judge’s reasoning, this matter did not of itself establish manifest inadequacy, but only reinforced “to some degree” the conclusion his Honour had already reached.
Neither Grounds 1 or 4 are established.
Ground 5 – the finding that a non-conviction order would lead to offending that does not attract punishment
The competing submissions
There were two limbs to the appellant’s argument. The first was that the sentence itself gave rise to no binding precedent for future decisions, relying on Wong v The Queen [2001] HCA 64; 207 CLR 584 at [57]-[58] (footnotes omitted): 57. The actual sentence which a court imposes on an offender reveals very little about the reasons which the court had for fixing that sentence. Contrary to submissions made on behalf of the Attorney-General of the Commonwealth (intervening in support of the respondent) the sentence itself gives rise to no binding precedent. What may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised, either generally or in particular kinds of case. It is, therefore, fundamentally wrong to speak of "quantitative aspects" of discretionary decisions. 58. So much is, or should be seen as, no more than a statement of elementary principle. …
The second was that the primary judge misunderstood that the non-conviction order was accompanied by a good behaviour order, which is a form of “punishment”.
The respondent accepted that there was some “infelicity” in the language used by the primary judge in the reasoning that is under challenge, and that the implication that a disposition pursuant to s 17(2)(b) of the Sentencing Act was “not punishment” was “unfortunate”.
The respondent argued that nevertheless, when the reasoning was properly construed, there was no basis to find error, because the primary judge had found that the objective seriousness of the appellant’s offence was “well-removed from the least serious case of stalking”. The primary judge was simply highlighting the inadequacy of the magistrate’s disposition, noting the orthodox position that the sentence will form part of current sentencing practice, and hence would stand as a “yardstick” against which future matters will be considered (relying on Hili at [53]-[54]).
The purpose of a conviction and the exception of a non-conviction order
A conviction is the ordinary consequence of a finding of guilt: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The purpose in recording a conviction has been described as being “a formal and solemn act” to mark the disapproval of the offender’s wrongdoing by the court and society: see R v AB [2022] NSWCCA 3 at [39] and the authority there-cited.
However, the Court has been given the discretionary power to make a non-conviction order, in this jurisdiction through s 17 of the Sentencing Act. Sections (17)(1) and 17(2) are as follows: 17 Non-conviction orders—general (1) This section applies if an offender is found guilty of an offence. (2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order): (a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender; (b) a good behaviour order under section 13. ...
The matters that must, and may, be taken into account are set out in ss 17(3) and 17(4) as follows: (3) In deciding whether to make a non-conviction order for the offender, the court must consider the following: (a) the offender's character, antecedents, age, health and mental condition; (b) the seriousness of the offence; (c) any extenuating circumstances in which the offence was committed. (4) The court may also consider anything else the court considers relevant.
The discretion conferred is thus very broad: Proud v Sladic [2014] ACTCA 26; 67 MVR 485 (Proud) at [28].
Although such an outcome does not require exceptional circumstances, the absence of a conviction has been described as an “exceptional outcome”: Proud at [42]. That the outcome is exceptional is, in part, a recognition of the nature of the power itself and the rationale behind it. In R v Ingrassia (1997) 41 NSWLR 447 at 449, in the context of discussing a similar power in existence in the NSW jurisdiction (now s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)), Gleeson CJ stated at 449 (McInerney and Ireland JJ agreeing): …The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 269, “a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice”.
The above passage has been cited in this jurisdiction in R v CV [2013] ACTCA 22; 223 A Crim R 67 (R v CV) at [46].
In this jurisdiction, the same idea has been incorporated in how s 17 has been considered and applied; that is, as requiring “cogent or compelling circumstances” to be demonstrated before a court is “persuaded to deviate from the ordinary consequence of criminal offending”: Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 at [49] per Burns J, cited in Kinnane v Beattie [2022] ACTSC 265; 372 FLR 358 at [39] per Mossop J. Was the reasoning of the primary judge in error here?
In relation to the first limb of the submission, the principle deriving from Hili (at [53]-[54]) is that while sentencing practice acts as a yardstick, any range does not fix the boundaries within which future judges must, or even ought, to sentence. That was, no doubt, a matter understood by his Honour. The impugned sentence, read in context, rather ineloquently appears to be directed to saying that if this sentence were allowed to stand, it would erode sentencing standards (see for example the sentencing reasons at [32]).
However, there is some merit in the second limb of the submission, namely that his Honour erred in suggesting that a non-conviction does not attract “punishment”. Where a court does exercise the s 17 discretion, but does not dismiss the charge under s 17(1), s 17(2) requires that court to either dismiss the charge or impose a good behaviour order pursuant to s 13 of the Sentencing Act.
In R v Mauger [2012] NSWCCA 51 (Mauger), the NSW Court of Criminal Appeal made some observations about the significance of a good behaviour bond in considering whether the primary judge was correct not to record a conviction. Harrison J (with whom Beazley JA and McCallum J agreed) stated at [37]: … it is important … not … to dilute or to downgrade the significance of the imposition of a bond. If the seriousness of the present offence and the need for denunciation and general deterrence are important considerations, they are to my mind more than adequately contemplated in this case by both the terms and the duration of the bond that has been imposed. The respondent has been made subject to a judicially sanctioned requirement that he be of good behaviour for a period of two years. There are onerous consequences that apply if he fails to observe that requirement. That fact alone would in my view impress the seriousness with which the Court was treating the respondent's conduct upon an objective and reasonable member of the community. It should not pass without comment that the significance of a bond, and the consequences of disregarding its conditions, is regularly considered by this Court to be important when deciding whether or not to grant bail to applicants who have allegedly disregarded the conditions and restrictions that a bond imposes. Much more than mere lip service is regularly paid in this context to the important and significant consequences for bail applications created by offences allegedly committed in breach of such conditions. It is wrong in my view to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate, or even a particularly lenient, sentence.
Those observations apply equally to the imposition of good behaviour orders, and the consequences for those who breach them, in the Territory (the above observations in Mauger were also applied in R v CV at [59]).
The primary judge’s statement that permitting a non-conviction order to stand would lead to a wide range of offending that “does not attract punishment” fails to acknowledge or recognise that an order under s 17(2) incorporates punishment through s 13 of the Sentencing Act.
All that said, the impugned sentence in [30] of his Honour’s reasons, read in context, is not directed to explaining why the sentence is manifestly inadequate, but rather at the consequences of failing to correct it. So much is apparent from his Honour’s consideration at [31] of the circumstances of this offence and the subjective circumstances of the appellant, and the importance of denunciation and deterrence in the sentence imposed.
Nonetheless, his Honour’s reference in the impugned statement to not attracting punishment is an error. Ground 5 therefore succeeds.
As a consequence, this Court is required to independently assess the Crown appeal. Before doing so it appropriate to briefly address the remaining grounds.
Ground 2 – the finding that the use of the vehicle was relevant and aggravating
In light of the above findings, the remaining grounds may be dealt with briefly, for completeness. The appellant complained about statements made at [7] of the primary judgment. Paragraphs [5] and [6] are included below for context to the finding under challenge (emphasis added): 5. The Magistrate found that the offending “must fall very much towards the lowest level of objective seriousness”. The appellant submits that this characterisation of the objective seriousness of the offending involved error, and that this contributed to the miscarriage of justice involved in the sentencing decision. 6. The Magistrate referred to what he described as “key features” of the offending in connection with his conclusion as to objective seriousness. First, he noted that he had not been able to make a finding that the respondent intended to cause apprehension or fear of harm. He then noted that there was no suggestion of any direct threat or violence and very little evidence that the respondent had looked directly into the eyes of the victim. He observed that there was no suggestion of intentional intimidation. 7. Despite these features, his Honour’s description of the offending as “very much towards the lowest level of objective seriousness” is surprising. The offending took place on six discrete occasions over a period of three months. It involved sustained conduct, sufficiently concerning to prompt evasive action by the victim. Although there is no suggestion of dangerous driving, the offending involved use of a motor vehicle for an improper purpose, with the risks to safety that that involves. It can rightly be described as occurring in a family violence context, not only because the respondent and the victim were former partners, but also because their three children were present either with her or with him. These matters clearly do not point to the offending being of the most serious kind; but they at least arguably place it well above “the lowest level”.
The appellant submitted that it was not open to the primary judge to find that the use of the motor vehicle was an aggravating feature of the offending. It suffices to observe that there was no formal finding that the use of the vehicle was aggravating. What was pointed out was that the conduct involved the use of a vehicle. It must be borne in mind that the offence of stalking contrary to s 35 of the Crimes Act can take many forms, as seen from the definition in the section: (2) For this section, a person stalks someone else (the stalked person ) if, on at least 2 occasions, the person does 1 or more of the following: (a) follows or approaches the stalked person; (b) loiters near, watches, approaches or enters a place where the stalked person resides, works or visits; (c) keeps the stalked person under surveillance; (d) interferes with property in the possession of the stalked person; (e) gives or sends offensive material to the stalked person or leaves offensive material where it is likely to be found by, given to or brought to the attention of, the stalked person; (f) telephones, sends electronic messages to or otherwise contacts the stalked person; (g) sends electronic messages about the stalked person to anybody else; (h) makes electronic messages about the stalked person available to anybody else; (i) acts covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person; (j) engages in conduct amounting to intimidation, harassment or molestation of the stalked person.
Using a motor vehicle to follow a person is objectively more serious than other conduct which may also fall within the definition of stalking.
There was also no error in the primary judge describing the conduct as carrying a “safety risk”. The safety risk is not just to the person who is conducting themselves with intent (including recklessness) to cause apprehension or fear of harm, being the language used in s 35(1) of the Crimes Act. The risk to safety may be to the driver being followed. The nature of the risk is that they may become distracted by being followed and drive in an unsafe manner in taking evasive action. The primary judge did not err in observing that the use of a car in stalking another driver, while not in this case dangerous or unsafe driving of itself, created a safety risk.
Ground 3 – the summary of the Magistrate’s findings
In Ground 3, the appellant contended that the primary judge erred in adopting the Magistrate’s summary of the facts, which stated that the victim “felt fearful and harassed” by the appellant’s actions. The appellant submitted that this was an error that then fed into the primary judge’s reasoning for a finding of manifest inadequacy.
It may be accepted that the primary judge took into account a summary of what had been found. That is because the words “in the light of the features of the offending referred to at [4] above” appear at the beginning of [31] of the primary judgment, and [4] of the primary judgment summarised the facts of the offending (see [7] above in these reasons).
It may also be accepted that in doing so, the primary judge relied on the part of the summary that the appellant complained was wrong, namely that “the victim felt fearful and harassed”.
As to whether the primary judge’s summary was wrong, the Magistrate’s exact words during the hearing were (emphasis added): I then turn to the complainant’s evidence. I note that she was emotional at times, in particular in relation to saying that she felt fear, and I think she said harassed; I’m not certain about that. I note there’s no element necessary for her to have actually felt fear or felt harassment about the defendant’s intention or recklessness in relation to that.
The appellant argued that the Magistrate did not find that the victim had suffered significant harm by reason of the offence and that the primary judge elevated what was said into a finding to that effect.
However, the complaint that the Magistrate did not actually find the complainant felt fearful and harassed is a misreading of the magistrate’s comments during the trial. The magistrate accepted the victim was emotional. His Honour clarified what he meant by that, in describing the emotion as fear. His Honour then added that he thought the victim also said ‘harassed’.
The uncertainty was not directed to accepting whether the victim was emotional or felt fear, the uncertainty was about his Honour’s own memory and whether he had recalled precisely what words were said.
As the respondent submitted, what is critical is what the Magistrate held in his judgment at the end of summarising the complainant’s evidence. The magistrate accepted the complainant’s evidence as compelling and made findings in accordance with her evidence.
That is sufficient to dispose of the argument for present purposes, because the entire complaint has been overtaken by the reasoning above in relation to Ground 5.
Ground 6 – the finding that the sentence was manifestly inadequate
The appellant’s sixth ground contended that the primary judge erred in finding that the original sentence was manifestly inadequate. As specific error has been established, it will be necessary for this Court to reconsider the Crown appeal. This issue will be addressed below. Ground 7 – the finding that there was no residual discretion
After concluding that the sentence imposed was manifestly inadequate, the primary judge made the following findings concerning the residual discretion (emphasis added): Residual discretion 35. The issues that remain are whether, despite having concluded that the sentence is manifestly inadequate, the Court has a discretion not to intervene and whether it should exercise that discretion. 36. In Kirby v Ali [2021] ACTSC 95 at [60] Robinson AJ held that, in a review appeal under Division 3.10.3 of the Magistrates Court Act, there is no discretion not to set aside the decision below if an appealable error is found. His Honour came to that view as a matter of construction of s 219F, having particular regard to s 219F(5) which provides that an appeal may be dismissed if the court considers that “no substantial miscarriage of justice has happened”. Although I was urged to hold that Robinson AJ was wrong on this point, the submission was not developed; and I would not depart from his Honour’s reasoning unless persuaded that it was plainly wrong. Having regard to the terms of s 219F(5), I am inclined to conclude that his Honour was correct. I am certainly not convinced that he was plainly wrong. 37. It is therefore strictly unnecessary to consider whether, if there were a discretion not to intervene, that discretion should be exercised. However, I note that I am not aware of any reason why the conclusions I have reached should not result in the sentence being set aside and the respondent resentenced under s 219F(2)(c).
This ground alleged that the primary judge erred in failing to find that the Court on a review appeal retained a residual discretion under s 219F of the Magistrates Court Act 1930 (ACT) (MC Act) to decline to interfere with the sentence even where error has been established.
The respondent accepted that the Supreme Court has a residual discretion to dismiss a Crown appeal against a sentence imposed by a magistrate. For the purposes of resolving the present appeal, it is sufficient to accept the respondent’s concession that the residual discretion is preserved by s 219F of the MC Act.
The respondent nonetheless submitted that this ground should be dismissed. The respondent submitted that properly construed, the primary judge did not in fact find that there was no residual discretion to decline to intervene. Rather, his Honour found that it was “unnecessary to decide” whether the residual discretion was preserved. It was unnecessary to decide this issue because the sentence imposed by the Magistrate was manifestly inadequate and there were no features of the case upon which the residual discretion should be invoked.
In circumstances where we have concluded that the primary judge erred in the reasons for finding the sentence imposed was manifestly inadequate, it is necessary for this Court to determine the appeal from the Magistrate’s Court afresh, a process which, in view of the respondent’s concession, will include consideration of the residual discretion.
That said, we note that his Honour did express the view (at [37]) that he was not aware of any reasons for the exercise of the discretion that would prevent the appellant being resentenced.
Reconsideration of the Crown appeal
For the reasons given above, the sentencing discretion has miscarried. Accordingly, the Court must reconsider whether the Magistrate’s sentence was manifestly inadequate.
It is appropriate to recall that in relation to an appeal on the ground a sentence is manifestly inadequate (or excessive), in Tracey v The Queen [2020] ACTCA 51, this Court observed at [37]-[38]: 37. The principles in relation to assessing whether a sentence is manifestly excessive [or manifestly inadequate] are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Wong); Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] (Hili)). Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [58]-[59], [75]-[76]. 38. To determine whether a sentence is manifestly excessive [or manifestly inadequate], it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.
We note that the only issue in dispute is as to whether a conviction should have been recorded. The 12-month good behaviour bond imposed on the appellant was not challenged.
That requires the Court to take into consideration the sentencing objectives set out in s 7 of the Sentencing Act, and the considerations in s 33 of the Sentencing Act along with the specific considerations set out in s 17(3) of the Sentencing Act.
In the present case, the offence is one that is punishable by two years’ imprisonment. The offence itself is one of some seriousness, although that is a relative concept and there are obviously offences that carry greater maximum terms of imprisonment.
As to the conduct itself, stalking can be constituted by conduct falling within the definition on at least two occasions: s 35(2) of the Sentencing Act. Here the conduct involved six discrete occasions, over a period of three months. We therefore agree with the primary judge’s description that this was sustained conduct which was sufficiently concerning to prompt evasive action by the victim.
The conduct involved the use of a motor vehicle to follow the appellant’s ex-partner and at times the appellant’s children were in the car or were in the victim’s car. As explained above at [48]-[51], we agree with his Honour’s view as to significance of this aspect of the offending.
There was also a family violence context to the offending, although it is important to record that the exercise of the discretion must be made without reference to s 34B of the Sentencing Act. That section was introduced after the conduct that is the subject of the offending occurred.
It was found that the appellant was reckless as to whether his behaviour would cause an apprehension of a fear of harm in the victim, not that he specifically intended her to feel that way. There was no direct threat of harm.
Overall, the above features take the matter out of the category of cases that would be described as at the lowest end of the spectrum of objective seriousness.
The appellant pleaded not guilty which means that no leniency can be given on account of any plea of guilty.
In terms of subjective features, the appellant is 51 years of age, he was unemployed at the time of the original sentence and no updating evidence was led in that regard.
As a result of the offending, there may have been consequences for the appellant having access to his young children. Without traversing the detail of that evidence before the magistrate, it has been assumed in the appellant’s favour as a degree of extra-curial punishment, albeit not an unexpected consequence of the particular offending here.
The appellant does have a criminal history. It was many years ago, with the last entry in 1994. The magistrate referred to the history in order to distinguish it from the present offending. Essentially, it was held to be so long ago and in relation to such different conduct that it was not relevant in terms of being indicative of any continuing attitude of disobedience to the law.
The magistrate could not find any circumstances that might be described as extenuating. That circumstance remains.
What those considerations amount to, in terms of offending and the circumstances of the offending, are: (a) the appellant was not young; (b) the appellant did not have the benefit of a plea of guilty nor an unblemished criminal history; (c) his conduct was not de minimus or at the lowest end of the spectrum of offending; (d) on the basis of the psychological assessment before the sentencing Magistrate, he has no specific mental or other health conditions to be taken into account; (e) the appellant has suffered the additional consequences of the offence for his access to his children; and (f) there are otherwise no identified extenuating circumstances.
Those circumstances, in light of the offending conduct in this case, do not justify any deviation from the ordinary consequence of criminal offending, being the entering of a conviction.
We note that for offending of this nature, considerations of deterrence are prominent.
The sentence imposed, which did not record a conviction, was manifestly inadequate. The exercise of the sentencing discretion was plainly unjustly lenient in light of the lack of any compelling basis for a sentence that, according to accepted principle, is an exceptional outcome.
As there was not a challenge to the 12 months’ good behaviour order, we accept that is appropriate regardless of whether a conviction was entered or not.
There is no basis advanced on which the residual discretion could be exercised. In particular, the Magistrate’s failure to record a conviction was not caused or contributed to by the prosecutor at first instance, there was no delay on behalf of the prosecution in commencing the appeal, and the resentencing of the appellant would not interfere with progress towards the appellant’s rehabilitation. Most importantly, the failure to record a conviction by the Magistrate resulted in a sentence which was manifestly inadequate and did not meet the need for general deterrence. Accordingly, the prosecution has demonstrated that the residual discretion should not be exercised.
The appropriate sentence is one which records a conviction, and imposes a good behaviour bond of 12 months, on the conditions set by the Magistrate.
On that basis, despite the finding of error, we would dismiss the appeal. Conclusion
The order of the Court is as follows: (1) The appeal is dismissed.
I certify that the preceding ninety-one [91] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 3 August 2023
************** Amendments
25 August 2023 Replace the victim’s name with “the victim” in paragraph [7], Paragraphs: sub-paragraph (d), and paragraph [48], sup-paragraphs (6) [7], [48] and (7).
Vuolo
Fall [2023] ACTCA 33
(1997) 41 NSWLR 447
(1969) 119 CLR 257