Paul Henderson v Andrew David Mckenzie

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Higgins CJ
• Judgment Date: 07 April 2009
• Docket Number: No. SCA 53 of 2008
• Date: 07 April 2009

[2009] ACTSC 39

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT

Judge:

Higgins CJ

No. SCA 53 of 2008

Between:

Paul Henderson

Appellant

and

Andrew David Mckenzie

Respondent

Counsel for the Appellant: Ms T Warwick

Counsel for the Respondent: Ms K Mackenzie

Firestone v ANU (2004) 184 FLR 53

Longfield v Glover (2005) 191 FLR 332

Crimes Act 1900 (ACT), s 35, s 253

Criminal Code 2002 (ACT), s 13

Domestic Violence Act 1986

World Book Dictionary

Concise Oxford Dictionary

CRIMINAL LAW — stalking — breach of a protection order — breach of a good behaviour order — intent — stalk with intent to harass — harassment — definition of harassment — election of stalking charge or protection order required

MAGISTRATES — appeal conviction

ORDER

THE COURT ORDERS THAT:

1. The appeals against convictions for breaches of a protection order be dismissed.

2. The convictions and sentences for those breaches be confirmed.

3. The appeal against the finding of contravention and extension of the term of the good behaviour order be dismissed.

4. The appeal against conviction for stalking be upheld.

5. The conviction and sentence for the charge of stalking be set aside and the matter remitted to the Magistrates Court for rehearing, if the Director of Public Prosecutions deems that course appropriate.

REASONS FOR DECISION:

1 On Friday, 28 November 2008, I dismissed appeals by the appellant which had sought to challenge his convictions for breaches of a protection order. The appellant had withdrawn those appeals. As a result, I confirmed the convictions and sentences. Those offences constituted breaches of an existing good behaviour order. I also dismissed the formal appeal against the finding that there had been such a contravention and in relation to extension of the term of the good behaviour order directed by the learned magistrate in response to that finding.

2 That left an appeal against a conviction for stalking which also, should it stand, breached the good behaviour order. Whether that breach is made out depends on the fate of the stalking charge.

3 I indicated I would set aside the conviction and sentence for stalking and remit the matter to the Magistrates Court for rehearing if the Director of Public Prosecutions (DPP) deems that course appropriate. I reserved my reasons. I now publish my reasons for that decision.

4 The charge alleged a contravention of s 35(1)(c) Crimes Act 1900 (ACT) ( Crimes Act), that is, that:

… he, in the Australian Capital Territory, between 02 May, 2005 and 18 February, 2008, did stalk Kim Herbert with intent to harass a person, namely Kim Herbert.

5 Section 35 provides (relevantly):

35 Stalking

• (1) A person must not stalk someone with intent—

  …

  (c) to harass the person stalked.

  …

• (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; (‘telephone’ includes any telecommunication device — s 253(1) — Crimes Act)

  • (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 ( Criminal Code, s 13).

  …

• (4) Without limiting subsection (1), a person is also taken to have the intent mentioned in the subsection if the person knows that, or is reckless about whether, stalking the other person would be likely—

  • (a) to cause apprehension or fear of harm in the person stalked or someone else; or

  • (b) to harass the person stalked.

• (5) In a prosecution for an offence against subsection (1), it is not necessary to prove that the person stalked or someone else apprehended or feared harm or that the person stalked was harassed.

  (subsection 6 defines ‘harm’).

6 Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) ( Criminal Code). However, it does seem in context to bear its usual meaning, ie ‘to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune’ (World Book Dictionary); ‘Vex by repeated attacks; trouble, worry’ (Concise Oxford Dictionary).

7 The present provision was introduced in the context of an associated amendment to the Domestic Violence Act 1986 (ACT)(as it then was). It came into effect on 10 July 1996. It was originally s 34A but was renumbered to s 35 in 2001.

8 It was clearly intended that conduct, whilst falling short of being a discrete criminal offence, should be punishable if engaged in repeatedly so as to cause, or be likely to cause, fear and alarm in a person, if the conduct is so engaged in by a person knowing or being recklessly indifferent to that consequence.

The facts

9 This matter was heard before Magistrate Madden on 3 and 11 June 2008. The appellant did not offer evidence. The learned magistrate, on 16 June 2008, found the offence of stalking (inter alia) proved.

10 His Honour was entitled to find, and did, that the appellant had engaged in conduct that the victim found extremely distressing. It was the basis for the protection order which was also breached. I summarise the facts his Honour found.

11 The events underlying all matters of complaint commenced about July 2002. From then up until May 2004, the complainant attended a fitness centre known as Bodyworks Fitness Club. The appellant was also a member. The complainant would, in that context, exchange greetings with the appellant. They did not otherwise communicate.

12 The complainant changed her fitness centre to Canberra International Sports and Aquatic Centre (CISAC) in May 2004. Thereafter, up until 2005, there were occasional meetings of a fleeting character between the appellant and the complainant. There was, objectively, nothing to indicate to the appellant that any contact with the appellant was being encouraged by the complainant.

13 In June 2005, the complainant began to receive text messages on her mobile phone, apparently from the appellant. The frequency increased. How the appellant obtained the complainant's number was not clear, though in one text message he said (6/9/05:1651) ‘I still don't understand why you gave me your number …’ There were 38 text messages between 21 June 2005 and 23 December 2005.

14 It was not until 23 December 2005 that the complainant referred the text messages to police complaining of harassment. As advised by police, she sent the appellant a request not to continue texting. He replied:

Sorry, I wont contact u again I promise. Im not stalking u I just saw your car by accident. I won't go to the gym anymore. Sorry I should have stopped before but I couldn't.

15 The messages were generally indicative of the fact that the appellant had a romantic obsession with the complainant. Disturbingly, they also indicated that he was from time to time keeping her under surveillance.

16 On 23 December 2005 the appellant had sent a message to the complainant, referring to a Christmas card, the complainant found a card under her windscreen wipers. She took it to police. It contained a message, ‘I wanted to get you something expensive and sexy for Christmas’ (on the outer cover), inside, ‘ME’ and ‘Love Paul’.

17 She was advised to send, and did, a text message, to wit, ‘please do not contact me again’. It was to that message that the appellant responded, as set out above, promising not to contact her again.

18 There was no contact after that until 8 March 2006. The appellant and complainant were then both, coincidentally it seems, at a musical event at ‘The Green Room’, a venue in Phillip, ACT. The appellant approached the complainant after staring in her direction for some time. He touched her arm but she moved away. Later, the appellant followed the complainant and her male companion down the stairs, the complainant heard the appellant say, ‘Are you going to leave with him? Fine leave with him, I don't care what you do’. She was concerned that the appellant might push her, though he did not, in fact, do so.

19 That incident led the complainant to consult police again.

20 Then, on 6 February 2007, a florist contacted the complainant concerning a large delivery of flowers from ‘Paul Henderson’. She declined to accept delivery and suggested they be delivered to Calvary Hospital. The value of the flowers was $1,000.00.

21 It was a month later that the complainant obtained a protection order.

22 She also took steps to be less easily contactable.

23 A further contact occurred on 11 February 2007. A text message was received by her saying, ‘Is that you Kimi, Paul.’. That appeared to have been prompted by a message to the appellant, though not from the complainant. Perhaps it was a “no number” missed call that he assumed came from her.

24 There was no further direct contact. However, police advised the complainant, on 20 March 2007, to contact Canberra FM. She did so and was informed that the appellant had sent, as she deposed:

… hundreds of text messages to the public text message...