Bolitho v McGregor [2006] ACTSC 70 (20 July 2006)

Last Updated: 12 February 2007

CRAIG BOLITHO v LOUISE MAREE McGREGOR

[2006] ACTSC 70 (20 JULY 2006)

APPEAL - sentence - from Magistrates Court - order for periodic detention not manifestly excessive penalty.

Crimes Act 1900 (ACT), s 35

R v Hallocoglu (1992) 29 NSWLR 67

R v Tait and Bartley (1979) 46 FLR 386

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 96 of 2005

Judge: Gray J

Supreme Court of the ACT

Date: 20 July 2006

IN THE SUPREME COURT OF THE )

) No. SCA 96 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: CRAIG BOLITHO

Appellant

AND: LOUISE MAREE McGREGOR

Respondent

ORDER

Judge: Gray J

Date: 20 July 2006

Place: Canberra

THE COURT ORDERED THAT:

1. The appeal be dismissed on 17 July 2006.

1. Craig Bolitho, the appellant, appeals against an order made by a Magistrate sentencing him to complete 26 detention periods. The order was made on 21 November 2005 consequential upon the appellant's plea of guilty in the Magistrates Court to a charge that, between 1 February 2005 and 1 June 2005, he stalked Nigel Lamb with intent to harass him contrary to s 35 of the Crimes Act 1900 (ACT). The applicable maximum penalty for the offence is two years imprisonment.

Background

2. Over the period charged, the appellant made a number of telephone calls to Mr Lamb who was involved in a relationship with Ms Fairbairn. The appellant believed that Ms Fairbairn had left him for Mr Lamb although Ms Fairbairn does not consider that she ever had a relationship with the appellant. The stalking charge relates to a number of nuisance phone calls made over the period charged. On 3 April 2005, the appellant made calls to Ms Fairbairn when Mr Lamb was present, as a consequence of which Mr Lamb, at Ms Fairbairn's instigation, contacted the police. In the early morning of the next day, the police found the appellant who had attempted to take his own life. That attempt resulted in the appellant being hospitalised and placed in intensive care where he remained in a coma for four days. Nevertheless, after that episode he still continued, on a regular basis, to make telephone calls to Mr Lamb's mobile phone. In the period after his suicide attempt, over 100 telephone calls were made.

3. Mr Perkins, who appeared for the appellant, expressed some uncertainty over the number of calls made and made the point that, at least in the latter stages, only 23 seconds or so was spent in answering the calls. Nevertheless, the large number of calls, and the fact that they persisted after the suicide attempt, are circumstances which the Magistrate, in considering the appropriate sentence was entitled to view very seriously. I do not understand Mr Perkins as challenging the Magistrate's conclusion in this regard.

The grounds of appeal

4. The grounds set out in the notice of appeal are:

1. The sentence was manifestly excessive in all respects;

2. The learned Magistrate did not properly consider alternative sentences to the one he chose;

3. The learned Magistrate failed to properly consider matters raised in the pre-sentence report, references, and the oral submissions made by the appellant's counsel on sentence.

5. On the hearing of this appeal, Mr Perkins did not seek to persuade me that the offence should not be viewed seriously or that, in all the circumstances, the nature of the offence did not merit a sentence of imprisonment. Nor could it be said that a sentence of six months imprisonment, which the Magistrate thought appropriate, was not available to the Magistrate in the circumstances of this case. The appeal was argued solely on the basis that the appropriate sentencing option was to fully suspend such a sentence.

The appellant's antecedents

6. The appellant, who is 47 years of age, has a lengthy criminal history extending back to when he was 16 years of age. A number of property and dishonesty offences, together with offences concerning the possession of heroin, indicate the influence of drug taking on his past criminal activity. He has been sentenced to imprisonment in the past, most significantly to what appears to be a total of four years imprisonment for a charge concerning maliciously setting fire to a dwelling and charges of setting fire to motor vehicles. On the other hand, he was dealt with for those offences in 1980, now some twenty-five years ago. I also note that he appears to have remained drug free for some years and, to his credit, his last offence was dealt with in 1999.

Mental health issues

7. Reference was also made to the appellant's mental health issues, particularly his depressive illness and its involvement in what the appellant's general practitioner described as "interpersonal withdrawal, attempted suicide, low moods, low self-esteem, psycho-motor agitation, anhedonia, memory loss, fatigue and low libido". These are matters to take into account but the significant period of time over which the present offence extended lessens the effect that the appellant's mental condition may have in determining the appropriate sentence.

The determination of the appropriate sentence

8. The Magistrate considered that the fact that the most recent conviction recorded was in 1999 justified him in not imposing an immediate term of imprisonment. That appears to me to be an appropriate approach for him to take. It was Mr Perkins' contention that the Magistrate should have then fully suspended the sentence of imprisonment that he was considering. I do not agree. Suspension of a sentence of imprisonment was but one of the options open to the Magistrate. The others were a community service order or an order sentencing the appellant to periodic detention.

9. The determination as to which of these sentencing options is the most appropriate in any particular case is a matter very much for the Magistrate at first instance to assess. Mr Perkins stressed that the mental health issues faced by the appellant pointed to the suspension of the sentence. However, the Magistrate was less impressed by this circumstance and considered that this aspect could be dealt with by the appropriate counselling that he noted that the appellant had commenced to undertake. It was open to the Magistrate to take this view.

10. The circumstance which influenced the choice of periodic detention as an appropriate option was expressed by the Magistrate in these terms:

I consider that nothing less than a periodic detention order will be sufficient to mark the community's disapproval of your behaviour and to adequately punish you.

Having said that, the Magistrate was no doubt aware of the strong degree of leniency built into orders that imprisonment be served by way of periodic detention and that such orders could be considered as being outwardly less severe in denunciation of the crime than a sentence of full-time custody (see R v Hallocoglu (1992) 29 NSWLR 67 at 73). It is clear that the Magistrate did not consider that the other sentencing options available to him would achieve even this degree of denunciation. This was a view open to him.

11. The appellant has failed to demonstrate that the Magistrate erred in the sentence that he imposed or that he acted on a wrong principle or misunderstood or wrongly assessed the material before him (cf R v Tait and Bartley (1979) 46 FLR 386 at 388).

12. For these reasons, I dismissed the appeal. I understand that the appellant has completed one period of the periodic detention ordered by the Magistrate. Because the appeal has operated as a stay, it is now necessary for me to adjust the order made by the Magistrate to reflect this circumstance and I will hear the parties as to the appropriate order to be made.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 20 July 2006

Counsel for the appellant: Mr D Perkins

Solicitor for the plaintiff: Darryl Perkins Solicitor

Counsel for the defendant: Mr J Lawton

Solicitor for the defendant: ACT Director of Public Prosecutions

Date of hearing: 17 July 2006

Date of judgment: 20 July 2006