PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW - Sentence - Three stalking offences - Photographs of victims from various social networking websites posted on pornographic sites - Whether sentencing judge made factual errors about the number of times the applicant linked particular victim to pornographic sites - Whether plea of guilty under duress - Whether sentencing judge misused victim impact statement which referred also to earlier stalking offence against same person - Whether sentencing judge failed to give proper weight to time the applicant spent in custody after his non-parole period for other offences had expired - Whether judge failed to give sufficient weight to principle of totality - Application for leave to appeal refused.

1 The applicant pleaded guilty in the County Court at Wangaratta to three charges of stalking, contrary to s 21A of the Crimes Act 1958. The maximum penalty for that offence is 10 years' imprisonment.

3 The sentencing judge ordered that two months of the sentence imposed on charge 2 and three months of the sentence imposed on charge 3 be served cumulatively upon each other and upon the sentence imposed on charge 1. The total effective sentence was 15 months' imprisonment. A non-parole period of six months was fixed. His Honour made a declaration to the effect that the applicant had been in custody for 66 days in respect of these offences.

4 The applicant sought leave to appeal against that sentence. On 26 October 2011, Neave JA refused that application. Her Honour concluded that none of the grounds upon which the applicant relied was reasonably arguable.

5 The applicant has elected, pursuant to s 315(2) of the Criminal Procedure Act 2009, to renew his application, and have this Court consider afresh the question whether leave to appeal should be granted.

6 The circumstances of the offending were set out in some detail in a statement of agreed facts that was tendered on the plea. However, before turning to what was contained in that statement, it should be noted that the applicant had, between July 2006 and September 2007, committed a number of offences, including stalking, producing and possessing child pornography, and using the postal service for the purpose of harassment. He was charged with those offences in late 2007, and released on bail.

7 On 19 June 2009, the applicant was dealt with for those earlier offences in the Magistrates' Court at Wangaratta. He was sentenced to a term of imprisonment, but immediately appealed against conviction and sentence. As is usual in such cases, he was released on bail pending the hearing of his appeal to the County Court.

8 That appeal was heard in June 2010. It failed, and on 3 June 2010 the applicant was sentenced to a total effective sentence of 15 months' imprisonment with a non-parole period of seven months. The County Court judge who heard that appeal was the same judge who, a little over a year later, sentenced the applicant for the three stalking offences that are the subject of this application.

9 It seems that the applicant would have been eligible for parole, in relation to those earlier offences, on 2 January 2011. However, due to the fact that he was at that stage facing the current stalking charges, he was not released. In effect, he served an additional six months or so in custody before he was dealt with for the current offences.

10 Each of the three stalking charges arose in the following circumstances. In February 2009, police commenced an investigation into an allegation that the applicant had been accessing international pornography sites with a view to stalking CF, a young lady whom he knew. As it happened, CF was also one of the four victims whom he had stalked in the period between July 2006 and September 2007.

11 In July 2009, a month or so after the applicant was convicted of the earlier offences in the Magistrates' Court, police executed a search warrant at his premises, and seized certain computer equipment.

12 In December 2009, the applicant succeeded in obtaining the return of his computer. This followed an application which he made to the County Court, claiming that he could not defend himself properly on the earlier charges (which were at that stage still the subject of an appeal to that Court). After he regained his computer, he once again posted offensive material concerning CF.

13 On 1 April 2010, the applicant was arrested and charged with stalking CF, and two other women, NK and HP. He was remanded in custody. In addition, his bail pending appeal, arising out of the earlier matters, was revoked.

14 There then followed a period of lengthy negotiations. Eventually, the applicant pleaded guilty to the charges of stalking that are presently before this Court.

15 The sentencing judge was acutely conscious of the fact that, about a year earlier, he had dismissed the applicant's appeal to the County Court against both conviction and sentence. His Honour reminded the applicant that he had made a series of findings adverse to the applicant's credibility in the course of his reasons for dismissing that appeal. He noted that this might provide a basis upon which the applicant could seek to have him disqualify himself on the ground of apprehended bias.

16 The transcript makes it perfectly clear that the applicant instructed his then legal representative not to seek to have the judge recuse himself. The plea then proceeded.

17 Although the applicant had been convicted and sentenced to a term of imprisonment in June 2010, the sentencing judge correctly noted that he was to be regarded as having no prior convictions. That was because he was not, effectively, convicted of any of the earlier offences until June 2010, some months after the three stalking offences were committed.

18 Returning to the stalking charges themselves, the offending may be described as follows. Essentially, the applicant accessed photographs of CF and HP online from various social networking websites. He posted those photographs on pornographic sites, some of which were based overseas. The photographs appeared in close proximity to those of women who bore a resemblance to both CF and HP, making it seem as though CF and HP were featured in the sites themselves. The women depicted on the pornographic sites were shown either nude, or participating in sexual activity of some kind.

19 The applicant further linked the photographs of both CF and HP to the pornographic sites by means of a series of anonymous comments referring to them by name, and/or description. The overall effect was to create the impression to anyone accessing that site that CF and HP were involved in pornography.

20 In relation to NK, the applicant did not attach any photographs to any pornographic site, but nonetheless did link her to those sites through various comments that he made.

21 If anyone sought to Google any of these three names, they would be directed at once to the sites in question. They would naturally assume that each of the victims had participated voluntarily in whatever was to be seen on that site.

22 As might be expected, the victim impact statements in this case tell a particularly harrowing story. CF, for example, said that she was so affected by what the applicant had done to her that she had moved away from her home town, in order to get away from him. Indeed, she said that she had taken the extreme, but necessary, step of legally changing her name. She said, credibly, that she had been profoundly, and permanently affected by the applicant's conduct.

23 The applicant, who was self-represented before Neave JA, and also before this Court, contended that leave to appeal should be granted because:

• the sentencing judge allegedly made factual errors as to the number of times the applicant had caused CF to be linked to various pornographic sites;

• his plea of guilty had only been entered under duress;

• the sentencing judge had misused CF's victim impact statement which concerned not merely the stalking offence committed between February 2009 and March 2010, but also the earlier stalking offence committed against her, and

• the sentencing judge had failed to give proper weight to the time that the applicant had spent in custody after his non-parole period for the other offences had expired.

24 Neave JA noted that the applicant had also sought, in his written case, to raise a claim of actual, rather than apprehended, bias in relation to the sentencing judge.

25 This application for renewal was originally listed for hearing on 24 February 2012. On the afternoon before the hearing, the applicant wrote to the Court foreshadowing that he would seek an adjournment of the hearing in order to enable him to test the validity of a search warrant executed upon his premises in relation to the earlier offending. It seems that he wished to investigate the possibility that the affidavit in support of that search warrant had not been properly sworn.

26 As it happened, the application that was scheduled for hearing on that day had to be adjourned because the applicant did not attend. He claimed that he had assumed that his request for an adjournment would automatically be granted. There was, of course, no basis for that assumption.

27 When this matter finally came on for hearing on 1 March 2012, the applicant abandoned his foreshadowed application for an adjournment. He did so after it was explained to him that any attack upon the validity of the search warrant used in relation to the earlier offending, even if successful, could hardly have any relevance so far as the present application for leave to appeal against sentence is concerned. It follows that nothing more need be said about that matter.

28 The applicant next sought to argue a point that was not raised before Neave JA on the original application for leave to appeal against sentence. He contended that the sentencing judge had failed to carry out a proper investigation into why his case had been dealt with in the County Court, rather than disposed of summarily as it might have been. He drew attention to the fact that, in an internal Magistrates' Court document headed 'Case Direction Notice', Form 32, someone had recorded that the reason that the matter was sought to be adjourned was because the prosecution had offered him the opportunity to plead guilty to four counts of sexual penetration.

29 The applicant submitted, correctly, that he had never been charged with any counts of sexual penetration. He had, rather, been charged with the three counts of stalking, together with some child pornography offences, the latter having been withdrawn as part of negotiated settlement.

30 The applicant was told that he required leave to argue this new point. After hearing what he had to say in support of this proposed new ground, it may be disposed of summarily. It is perfectly plain, from a reading of the transcript dated 19 May 2011, that the judge was concerned to ascertain just why this case had been uplifted into the County Court, rather than being dealt with summarily. The prosecutor said that he was uncertain, but suspected that it may have something to do with the fact that these three stalking offences had been committed while the applicant was on bail for the earlier offences.

31 Counsel who then appeared for the applicant then added that it may have been because there were 'initial charges which have since been dropped'. That, of course, was true, but had nothing to do with any matters involving sexual penetration.

32 In any event, neither the prosecutor nor counsel for the applicant sought to take the matter any further. No request was ever made to remit the matter to the Magistrates' Court. Even when his Honour asked specifically whether he had any statutory power to do so, both the prosecutor and defence counsel replied at once that he had no such power. When his Honour queried that response, neither party sought to take the matter any further.

33 In these circumstances, we consider that leave to rely upon this new ground should be refused.

34 That takes us to our reconsideration of the applicant's written case, as argued before Neave JA.

35 The applicant contends that the sentencing judge wrongly sentenced him on the basis that he posted some 20 or so comments on the internet linking CF to various pornographic sites. Included amongst those 20 or so computer postings were said to be a number of transpositions of CF's photograph, taken from various social network sites. The applicant contends that in fact he was involved in only seven such postings, and that no others could be linked to his computer. He further contends that he had nothing to do with posting any photographs of either CF or HP in close proximity to any pornographic sites. If, of course, that assertion is true, it was sheer coincidence, and misfortune, that someone else had posted those photographs while the applicant added comments to them.

36 The short answer to the applicant's contention that this ground is reasonably arguable is that it makes not the slightest different whether there were seven, 20, or some greater number of such postings. The applicant's moral culpability, in relation to CF is much the same. So too is the harm that such postings have done to her.

37 However, there is a second, and perhaps more powerful, answer to this contention. The figure of 20 was an agreed figure, arrived at in discussions between the Crown and the applicant legal representatives. So too was the assertion in the Crown's opening that 'the accused posted approximately 20 written comments on international pornographic websites, sometimes with accompanying photos of [CF]'. It should also be noted that the Crown opened, by agreement, that the applicant had posted photos of HP.

38 The applicant had every opportunity, on the plea, to instruct his counsel (who was not counsel who first appeared for him on 19 May 2011) to challenge the agreed statement regarding the '20 written comments' and the posting of photos. Indeed, the informant gave evidence on the plea regarding these matters, and was once again not challenged.

39 The applicant now seeks to contend that he was overborne by the barrister who first appeared for him, and effectively coerced into accepting the prosecution version of the first count of stalking. In fact, the Crown alleged that there were something of the order of 140 separate postings regarding CF, but that figure was negotiated down to 20. The claim of duress is unsupported by any evidence. Insofar as it is possible to form a view regarding matters of this kind from the transcript, there seems to be no substance whatever to that claim. Moreover, the contention that the applicant had nothing to do with posting photographs on the websites is, for the reasons previously outlined, inherently improbable. It follows that we regard this ground as not being reasonably arguable.

40 The applicant's submission that the sentencing judge misused CF's victim impact statement is also not reasonably arguable. All that his Honour did was to point out that the effects of the applicant's earlier stalking of CF had been exacerbated by his continued harassment of her, a matter which his Honour was not only entitled, but bound, to take into account.

41 The applicant's contention that the sentencing judge failed to give sufficient weight to the principle of totality is also untenable The sentencing judge was fully aware of the applicant's history, and the amount of time he had spent in custody for the earlier offences. In sentencing the applicant for the three counts of stalking, his Honour declared 66 days of pre-sentence detention, and specifically noted that, had it not been for the later offending, the applicant would have been eligible for release on parole on 2 January 2011. His Honour referred specifically to the principle of totality, and expressly noted that the applicant had already served some 15 months for the earlier offending.

42 His Honour made it clear, in his sentencing remarks, that he intended to give effect to the principle of totality by fixing a shorter non-parole period than would normally be expected. He said:

I order that you serve a minimum of six months before being eligible for parole. I have set, again, a lower than normal minimum because you have served time in custody well beyond your last minimum term, and I have taken that into account.[1]

43 The sentence of 15 months with a six month minimum adequately gave effect to the principle of totality.

44 It is unnecessary to say anything further about the applicant's claim of actual bias. There is no basis for any such contention. His Honour acted throughout with conspicuous fairness.

45 The individual sentences imposed in relation to each of the three charges before this Court seem to us to have been moderate. So too were the orders as to cumulation. The applicant's total criminality warranted a sentence (of at least) the order of that imposed. We would refuse leave to appeal.

[1] DPP v Wilson (Unreported, County Court of Victoria, Judge Leckie, 7 July 2011) [41].