Agostino v Cleaves [2010] ACTSC 19 (3 March 2010)

Last Updated: 31 March 2010

AUBREY AGOSTINO v REBECCA CLEAVES

[2010] ACTSC 19 (3 March 2010)

APPEAL – appeal from Magistrates Court – mental impairment – requirement for evidence as to effect of impairment on offence and sentencing options – appeal dismissed.

Criminal Code 2005 (Cth), s 474.17(1)

Crimes (Sentencing) Act 2005 (ACT), Pts 4.2, 3.2

Magistrates Court Act 1930 (ACT), ss 208(1)(e)(i), 214(3)(b), 214(3)(a)

Crimes Act 1914 (Cth) s 4J(3)(a)

ACT Magistrates Court Practice Direction No 1 of 2009

Sleiman v Murray [2010] ACTCA 2

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Lukatela v Birch (2008) 164 ACTR 24

Colter v Corvisy (2008) 1 ACTLR 299

R v Verdins (2005) 16 VR 269

R v Tsiaras [1996] 1 VR 398

Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1

Hawkins v Hawkins [2009] ACTSC 148

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

R v Geddes (1936) 36 SR(NSW) 554

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Ellis (1993) 68 A Crim R 449

Oliver (1980) 7 A Crim R 174

R v Morse (1979) 23 SASR 98

Hansford v His Honour Judge Neesham [1995] 2 VR 233

Smith v Elliott [2007] ACTSC 65

Weinert v Commonwealth Department of Public Prosecutions [1999] SASC 34 (Nyland J, 9 February 1999, unreported)

Maier v Police [2004] SASC 367 (White J, 19 November 2004, unreported)

Birnie v Police [2006] SASC 263

Nichols (1991) 57 A Crim R 391

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 3 of 2010

Judge: Refshauge J

Supreme Court of the ACT

Date: 3 March 2010

IN THE SUPREME COURT OF THE )

) No. SCA 3 of 2010

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: AUBREY AGOSTINO

Appellant

AND: REBECCA CLEAVES

Respondent

ORDER

Judge: Refshauge J

Date: 3 March 2010

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed to the extent that the period of imprisonment imposed on 3 February 2010 commence on 4 December 2009 and end on 3 May 2010.

2. Otherwise the appeal be dismissed.

1. Aubrey Agostino (also known as Aubrey Heath), the Appellant, pleaded guilty in the ACT Magistrates Court to a charge that he used the Internet in a way that reasonable persons would regard in all the circumstances as menacing.

2. This was an offence under s 474.17(1) of the Criminal Code 2005 (Cth) and rendered him liable to a maximum penalty of three years imprisonment.

3. On 8 January 2010, Magistrate Lalor convicted Mr Agostino and sentenced him to six months imprisonment to commence from 4 December 2009, the day on which he was arrested and since when he had been in custody.

4. Mr Agostino now appeals from that sentence on the ground that the sentence was too severe. Mr Agostino also sought to adduce further evidence, namely a report prepared by Dr Anthony Barker of the Alexander Maconochie Centre Health Service (though signed by Dr Daniel Bonner, Psychiatrist) reporting that Mr Agostino suffered from a bipolar disorder, in the context of which the sentence is said to be too severe.

The facts

5. The offence involves the use of Facebook, often called a “social networking” facility on the Internet. Facebook is a system on the Internet providing a platform which allows subscribers to create personal profiles on the Internet on a site on which they can publish a range of information, including visual images and videos.

6. Other persons can access the site and become “friends” by a request from one Facebook subscriber to another for that status and acceptance by that other. Upon acceptance, the subscriber gains access to all the data on that other subscriber’s personal profile site.

7. Another feature of Facebook is the “wall” which allows a subscriber or friend to post material in the central area of the profile site and this material is then visible to any other person accessing the site, depending upon the level of access they have been permitted to it.

8. The Facebook system also allows communication between friends through e-mail or through “instant chat sessions” which permit real time, interactive communication.

9. Mr Agostino became a “Facebook friend” of the Victim of the offence, who had opened a personal profile site on Facebook in September 2009. For reasons not disclosed, Mr Agostino used the name “Aubrey Heath”, though it appears that the Victim knew who he was as they had known each other for some years.

10. Mr Agostino had in the past had a relationship with a young woman but that relationship had ended some time before, apparently in circumstances that were distressing to Mr Agostino.

11. In November 2009, the Victim started a relationship with that young woman and a short-time later he began to receive threatening messages on his Facebook personal profile site from Mr Agostino.

12. A message on 11 November 2009 read “You’re a dead dog, you’re a fucken bitch cunt don’t worry ill (sic) be taking you for a drive really soon don’t forget I know where you live”.

13. Unsurprisingly, the Victim was frightened by this message and concerned for his safety and that of his five-year old daughter and other members of his household. As a result, he ended the relationship with the young woman.

14. Nevertheless, he continued to receive threatening messages and these conveyed the impression that Mr Agostino intended to harm him. He told his brother and his brother’s girlfriend, both of whom also have Facebook personal profile site and who are “Facebook friends” of Mr Agostino. The threatening messages continued to be posted on the Victim’s personal profile site and also that of his brother’s girlfriend.

15. On 29 November 2009, Mr Agostino posted three digital images of his personal profile site showing himself with a naked torso holding a silver pistol with a black handle and a digital image showing a silver firearm on a table with five bullets beside it.

16. Later that day, Mr Agostino had an “instant chat session” with the Victim’s brother’s girlfriend. This included the following exchanges:

She wrote: ‘Yu must really love [the young woman] if you are willing to put BULLETS in two people for her’.

Mr Agostino wrote: ‘yer I do lover her but im neaver going back to her yous wanna talk shit that’s what happens.’

Later she wrote: ‘I mean honest true you are really only doing it cox of [the young woman]. We have not even said anything bad enough to serve a BULLET in us?’

He wrote: ‘yes I am who cears but me no cunt ok I don’t cear if I go to jail’.

She wrote: ‘You know you don’t want to be in jail?’

He wrote: ‘I don’t cear its ok in there’

She wrote: ‘ok so just think YOU SHOOT me that’s about 10 years. YOU SHOOT ben that about 10 years. All for a girl that wont even wait on the otherside for you.

He wrote: ‘like I said Idon’ cear about time and I neaver said she would wait’

She wrote: ‘She was meant to wait for you last time and hooked up with someone else. OH and [the Victim]? You know its not worth SHOOTING both of us. (none of us)’

He wrote: ‘trust me yes it is’

17. These interchanges were reported to the Victim. Together with the pictures, they caused him to fear for his life. It affected his sleep. He subsequently contacted police and investigations led to Mr Agostino’s arrest.

18. Inquiries also revealed that Mr Agostino did not have a firearms licence. Police Forensic Services Ballistics experts formed the opinion that the pistol in the images of Mr Agostino was a replica only.

19. On his arrest, Mr Agostino participated in an interview with police which was recorded. In it, he admitted that the image of the male with a firearm was of himself but that he did not know whether the gun was a real one.

20. He denied threatening to kill the Victim or any of his friends nor to harassing, menacing or causing offence to any of them.

Court proceedings

21. He appeared in court on 5 December 2009 when bail was refused. On 14 December 2009, he entered a plea of not guilty and was remanded in custody for a Case Management Hearing (ACT Magistrates Court Practice Direction No 1 of 2009) on 4 February 2010.

22. He sought a review of bail in this court on 18 December 2009 and his application was refused.

23. The matter was later relisted on 8 January 2010 when he entered the plea of guilty and was dealt with as noted above.

24. At the hearing he was represented. No pre-sentence report under Pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT) had, of course, been prepared, for these take a minimum of four weeks to prepare for persons in custody. No other evidence was offered.

25. Mr Agostino’s criminal history was tendered. I refer to it below.

26. A more serious charge of using the Internet to make a threat to the Victim to kill him was withdrawn by the prosecution and noted by the learned Magistrate as “[c]harge withdrawn”.

27. Mr Agostino’s legal representative announced “I’m in a position to proceed today” and the facts were read by the prosecutor.

28. Mr Agostino’s legal representative then submitted that the period of custody that Mr Agostino had already served on remand was sufficient penalty. He then offered an explanation of the conduct by reference to Mr Agostino’s mental condition.

29. The following exchange occurred between the learned Magistrate and Mr Agostino’s legal representative:

MR BOLAND: ... Although, by way of explanation a bipolar young man who is on 250 milligrams of ...

HIS HONOUR: I have no evidence of that.

MR BOLAND: Your Honour, there is a doctor’s report from the AMC.

HIS HONOUR: I have no evidence of that, Mr Boland.

MR BOLAND: Yes. Your Honour, the letter was ready for the submission today and it’s been left at the correctional centre by Mr Agostino.

HIS HONOUR: You indicated to me you were ready to proceed, yes.

MR BOLAND: Your Honour, in terms of the context I’d submit from the Bar Table that the bipolarity exists, that it’s been referred to in a previous pre-sentence report. And that, at the time of this offence, he wasn’t taking his medication and this sort of irrational behaviour was occasioned by that omission.

30. There was no objection by the prosecutor to the last statement and it is unclear whether the learned Magistrate did or was required to take that matter into account.

31. There was little by way of personal information about Mr Agostino before the court, though his criminal record was, as noted above, tendered.

Subjective features before the Magistrates Court

32. Apart from the statement that he suffers from a bipolar disorder and the fact that he had been in custody since 4 December 2009, including over Christmas, the only real information as to the subjective circumstances of Mr Agostino came from the police record which had been tendered by the prosecutor.

33. It might also be accepted, however, that he was of Aboriginal descent since he was represented by the Aboriginal Legal Service.

34. The police record gave his date of birth from which the learned Magistrate knew he was 19 years old. It also showed numerous prior offences dated back to 2003 when he was first dealt with in the Children’s Court. This was for an assault (and some offences of damaging property). Since then he had committed eight other offences of assault.

35. He had, in addition, been convicted of robbery – using force on a person – and of resisting arrest, possessing an offensive weapon, carrying a knife and dangerous driving. In addition, there were numerous traffic and dishonesty offences, including burglary. There were also five breaches of recognizances or good behaviour orders, though no action was taken on a number of them.

The decision

36. The sentencing remarks of the learned Magistrate were brief. This is to be expected in a Magistrates Court (Sleiman v Murray [2010] ACTCA 2 (at [32]). It is also appropriate to have regard to exchanges during the sentencing submissions where they elucidate his Honour’s reasons for sentence.

37. Thus, his Honour noted during argument that Mr Agostino’s record showed a number of breaches of good behaviour orders and asked, rhetorically, “How can I have any ... faith that he will comply by (sic) any court order?”

38. The learned Magistrate noted the plea of guilty and Mr Agostino’s youth. He noted his prior history, especially of assaults, and that at the time of committing the offence he was subject to a good behaviour order made by the Supreme Court in response to his breach of an earlier good behaviour order imposed by the Supreme Court.

39. His Honour did not mention the bipolar disorder and it is to be assumed that his Honour did not take it into account.

40. His Honour held that specific deterrence was the principal sentencing “characteristic” and imposed the six months imprisonment back-dated to when Mr Agostino first was taken into custody.

The appeal

41. There was only one ground of appeal, namely that the sentence was too severe, a ground commonly called, not inappropriately, manifestly excessive. This, however, was in the context of the further evidence admitted.

42. Mr McLauchlin who appeared for Mr Agostino, tendered the report of Dr Barker referred to above. That report was brief; Dr Barker wrote:

Mr Heath has a diagnosis of Bipolar II Disorder and is receiving treatment with Lithium Carbonate 250mg bd. His illness is managed primarily by his general practitioner, Dr Sharp, with occasional input from the Forensic Mental Health Service during periods of incarceration.

43. Mr McLauchlin suggested that the offences occurred while Mr Agostino was not taking his medication. There was no evidence of this. In any event, that by itself would not have explained how this disorder would explain the commission of the offence, or Mr Agostino’s responsibility for it. There was no explanation as to why, if it was so, he had stopped taking his medication and his culpability for that.

The jurisdiction on appeal

44. The appeal to this Court is brought under s 208(1)(e)(i) of the Magistrates Court Act 1930 (ACT), which gives this Court jurisdiction to hear and determine appeals against sentences of imprisonment imposed under Pt 3.2 of the Crimes (Sentencing) Act 2005 (ACT), which is the sentence imposed on Mr Agostino.

45. Once the appeal has been instituted, the orders of the Magistrates Court are stayed, hence the availability of bail. It also raises the need for the Appeal Court to bear in mind that Mr Agostino’s present custody will not, absent an appropriate order of this court, count as part of the sentence to be served.

46. The hearing of the appeal is a rehearing as described by the High Court in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, which was explained in Lukatela v Birch (2008) 164 ACTR 24 (at 28 - 29) as follows:

Generally (in the absence of a wider statutory power) in an appeal by way of rehearing, the appellate court can only exercise its powers where, having regard to all the evidence before it, the appellant demonstrates that the order appealed from is the result of some legal, factual or discretionary error.

...

In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (at [25]) (Fox) Gleeson CJ, Gummow and Kirby JJ held that:

... the appellate court is obliged to conduct a real review of the trial and ... of [the trial] judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’ (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 27).

And, although the appeal is by way of rehearing, the appellate does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox at [27] per Gleeson CJ, Gummow and Kirby JJ.

Ordinarily, if there has been no further evidence admitted and no relevant change in the law, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on part of the court below: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [14] per Gleeson CJ, Gaudron and Hayne JJ.

...

I am of opinion that the nature of an appeal under Div 3.10.2 is of an appeal by way of re-hearing on the evidence below, together with such further evidence as may be admitted under s 214 of the Magistrates Court Act. Such a ‘re-hearing’ does not involve a completely fresh hearing by the Supreme Court on appeal. The Court would ordinarily proceed on the basis of the record in the court below, together with any additional evidence that is admitted under s 214.

Where no oral evidence was given below, or the trial judge’s findings based on oral evidence are not challenged, the Supreme Court on appeal is in as good a position as the Magistrate to decide the proper inference to be drawn from the undisputed facts which were in evidence. In deciding the proper inference to be drawn, the Supreme Court must give respect and weight to the conclusion of the Magistrate, but, once having reached its own conclusion, must give effect to it: Fox at [25] per Gleeson CJ, Gummow and Kirby JJ, applying Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; [1979] HCA 9; 23 ALR 405 at 422-3; see too CGU Insurance Ltd v Porthouse (2008) 248 ALR 240; 82 ALJR 1135; [2008] HCA 30 at [69] per Gummow, Kirby, Heydon, Crennan and Kiefel JJ.

The further evidence

47. The report of Dr Barker was further evidence which Mr Agostino sought to adduce. There are two ways in which additional evidence can be adduced on appeal: by consent under s 214(3)(b) of the Magistrates Court Act 1930 (ACT) or, if it considers it necessary or expedient to do so in the interests of justice, under s 214(3)(a): Lukatela v Birch (at 27).

48. The respondent, represented by Ms N Buick, consented to the tender of the report of Dr Barker. In the written submissions, the respondent merely indicated that he “did not oppose” the tender of the report but it appears that the consent to its tender at the hearing was sufficient for me to receive it under s 214(3)(b) and I did so.

49. I have noted above (at [42]) the limited nature of the report and the information it provided. It was, it appears, the letter that had been “left at the correctional centre” at the hearing.

Effect of mental impairment on sentences

50. There is no doubt that Mr Agostino suffers a mental impairment, though the degree of impairment is not a matter I am able to determine. A medical practitioner may be able to tell from his medication, “Lithium Carbonate 250 mg bd”, the degree of severity; I am not able to do so. Nor can I tell what effect that has on his behaviour, intellectual appreciation of his actions or ability to control them.

51. It is to be noted that the events that give rise to the charge to which he has pleaded guilty occurred over 18 days, more than a fortnight of continuing threatening messages.

52. I explained the approach that a court should take to mental impairment in sentencing in Cotter v Corvisy (2008) 1 ACTLR 299 (at 312-4). My attention on this appeal has been drawn to a decision of the Court of Appeal of Victoria in R v Verdins (2005) 16 VR 269. There, a unanimous court considered the whole basis of the effect that mental impairment has on sentencing, reviewing the principles enunciated in one of the leading cases in this area, R v Tsiaras [1996] 1 VR 398, a decision which I had considered in Cotter v Corvisy. The Court of Appeal discussed the issues at some length and then reformulated the relevant principles. The reformulation has been approved by Basten JA in the NSW Court of Criminal Appeal in Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1 (at 5-6, 13).

53. Those principles are, as formulated in R v Verdins (at 276):

Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

54. It does not seem to me that they conflict with what I said in Cotter v Corvisy though they are more comprehensive.

55. The difficulty for Mr Agostino is that, even with the further evidence adduced on appeal, it is extremely difficult for me to apply any of the principles that have been set out in R v Verdins.

56. I can accept, as I do, that Mr Agostino suffers from a mental impairment and that it may have clouded his judgment at some time during the commission of the offence, but the degree of effect so as to moderate punishment is something about which I can make no rational finding. One can feel, and express, sympathy for Mr Agostino and his mental challenge but the offence is a serious one and it is not enough merely to refer to the mental condition without an evidentiary basis for the effect that it should have on sentencing under the principles enunciated in R v Verdins.

57. I further note that the learned Sentencing Magistrate did not emphasise general deterrence, on which mental impairment has the greatest effect, but on specific deterrence.

Manifestly excessive sentence

58. Although phrased in the Notice of Appeal merely as “severity of sentence”, I am satisfied that Mr Agostino sought to challenge the sentence on the basis that it was manifestly excessive.

59. In Hawkins v Hawkins [2009] ACTSC 148 (at [39] to [54]), I addressed this ground. It requires that:

1. the nature of the offence and the circumstances of the case “must afford convincing evidence that in some way the exercise of the [sentencing] discretion has been unsound”: Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 (at 520);

2. the appeal court give due allowance for any advantage that the sentencing judge has as to having seen the witnesses and possibly the accused: R v Geddes (1936) 36 SR(NSW) 554 (at 556);

3. the manifest excess must be explained and the reasoning must support the conclusion: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at 325-6);

4. where possible, a reference to the general pattern of sentencing is used to show the “collective wisdom of other sentencing judges”: Ellis (1993) 68 A Crim R 449 (at 460); Oliver (1980) 7 A Crim R 174 (at 177); and

5. the court must consider all the relevant factors, including the maximum penalty provided for the offence, the sentencing pattern for the offence, the place the conduct occupies in the scale of seriousness of crimes of that time and the subjective characteristics of the offender: R v Morse (1979) 23 SASR 98 (at 99).

The statutory regime

60. The offence is one under the Criminal Code 2005 (Cth) which provides for a maximum penalty of three years imprisonment. Thus, it is neither a trivial or minor offence nor one which the legislature regards with great severity. It is, however, a serious offence.

61. Where the offence is dealt with summarily, the Magistrate is limited to imposing a maximum penalty of twelve months imprisonment or a $5,000 fine or both: s 4J(3)(a) Crimes Act 1914 (Cth). This does not, of course, mean that, when the offence is dealt with summarily, the worst case attracts the summary jurisdictional limit; that remains at three years and the Magistrate should not deal with it if the appropriate penalty exceeds his or her jurisdictional limit: Hansford v His Honour Judge Neesham [1995] 2 VR 233 (at 236-7).

Comparable sentences

62. Neither appellant nor respondent referred me to any comparable sentences. Ms Buick did say that the database of the Commonwealth Director of Public Prosecutions had shown that a wide range of sentences were imposed for this offence. That is, of course, so for many offences. One has to evaluate the circumstances of the commission of the offence and the circumstances of the offender. This lack of assistance makes it difficult to assess the challenge to the sentence and both counsel should ordinarily provide such assistance as they can.

63. I have had access to a number of decisions. In Smith v Elliott [2007] ACTSC 65, Gray J dismissed a sentence appeal from the Magistrates Court. There, the appellant had committed twelve offences where he telephoned a woman under the pre-text of conducting a survey but then the call developed into personal and sexually intimate questioning.

64. Mental health issues were there also raised by the appellant, but Gray J noted (at [11]):

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.

65. Gray J described the feelings of the victims of the offences. While some were “scared”, the majority used words like “uncomfortable”, “extremely upset” and “violated”.

66. The appellant had previously been convicted of similar offences to which he had been sentenced to six months imprisonment to be served by way of periodic detention.

67. For this change, he was sentenced to ten months imprisonment with a non-parole period of five months. His appeal against sentence was dismissed.

68. His Honour’s attention was drawn to two other cases. In Weinert v Commonwealth Department (sic) of Public Prosecutions [1999] SASC 34 (Nyland J, 9 February 1999, unreported) an appeal against a sentence of six months imprisonment fully suspended but with ongoing supervision was dismissed.

69. There, the appellant had made six random telephone calls to a number he had chosen at random. He either breathed heavily or hung up without saying anything. On one occasion he made an offensive remark. The recipient of the calls was a 15 year old girl, home from school because she was ill. She was frightened as a result of the calls. The appellant appeared to have no prior convictions.

70. In Maier v Police [2004] SASC 367 (White J, 19 November 2004, unreported) the appellant had made 26 calls to nine separate people, all of whom were women. He sometimes said nothing; he sometimes asked the colour of their underwear; he sometimes told them he had their underwear or wanted it. He had a history of making offensive calls and had earlier convictions when fines or bonds were imposed.

71. Detailed reports from his general practitioner and two psychiatrists were provided showing a diagnosis of bipolar disorder and he was to receive treatment. It was said the appellant’s “mood swings contribute significantly to his impulsive behaviour”.

72. He was sentenced to eighteen months imprisonment (reduced from twenty months on account of his plea of guilty). The Supreme Court upheld the appeal and re-sentenced him to imprisonment for eighteen weeks followed by a two year good behaviour recognizance with supervision and 120 hours of community service.

73. I have also noted Birnie v Police [2006] SASC 263 where the appellant made 42 calls to each of two women. The calls were lengthy and caused considerable mental distress to the victims. They prevented one of the women from sleeping and the other suffered severe stress and deteriorating health.

74. A report on the appellant showed he had a disrupted family life. He had been in prison before. The report also showed that the appellant had a severe personality disorder for which he was undergoing therapy. Imprisonment was said to have the potential to interfere with ongoing therapy.

75. The appeal from a sentence of twelve months imprisonment was dismissed.

76. In my view, this is a more serious case than the first three cases mentioned above, even though it involves only one charge though of messages over a period of time. The charge encompassed a number of items of behaviour which were seriously threatening to the Victim’s life. It is perhaps similar to the last case, though that case has some more serious aspects.

Personal circumstances of the Appellant

77. Mr Agostino is, as has been noted, a young man, but with an unenviable criminal history. He has been given opportunities before by courts and has not shown that he can always take them and use them to his benefit. This does not entitle the court to be more severe in sentencing, but does mean that less leniency can be afforded to him.

78. While his youth does entitle him to a careful consideration of the sentencing options available, youth does not prevent imposition of a deterrent sentence if otherwise appropriate. See Nichols (1991) 57 A Crim R 391 (at 396).

79. There is little else of Mr Agostino’s personal circumstances that were before the learned Sentencing Magistrate and no more before me.

80. He pleaded guilty and this is to his credit, though the case against him was a strong one. The Magistrate noted that.

81. Mr McLauchlin also referred to the lack of a Pre-Sentence Report. That is to be regretted but it is not an error for the court to proceed, where the offender seeks to proceed without such a Report. Much of the material in such reports can be provided by a properly instructed counsel on plea. A Pre-Sentence Report will have, perhaps, more weight, but the background can be helpfully addressed by proper submissions.

82. It would have been open for the Court to order such a Report and it would probably have been desirable, especially as a sentence of imprisonment was in the contemplation of the learned Magistrate. Nevertheless, I do not consider in the circumstances it was an essential requirement that the learned Magistrate order one.

Conclusion

83. While the sentencing proceedings were in some ways unsatisfactory, this was largely due to the instructions of Mr Agostino and not the fault of the learned Magistrate or such that Mr Agostino did not get a fair hearing.

84. While the sentence was a severe one and at the upper end of an acceptable range, it was not beyond it. Further information given to the learned Magistrate may have shown to be too severe; that is entirely speculative. I cannot say that the sentence was manifestly excessive for a serious offence which caused serious fear in the Victim causing him to terminate his relationship with the young woman and sleep disturbance.

85. The appeal must be dismissed. I note, however, that if I merely dismiss the appeal, then the period between 8 January 2010 and today will not count as time served under the sentence imposed by the learned Magistrate. That would certainly make the sentence unfair.

86. Accordingly, orders should be made to ensure that the time served by Mr Agostino between 8 January 2010 and today be considered as time served under the sentence imposed by his Honour on that date.

I certify that the preceding eighty - six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 2010

Counsel for the Appellant: Mr McLauchlin

Solicitor for the Appellant: Aboriginal Legal Service

Counsel for the Respondent: Ms N Buick

Solicitor for the Respondent: Commonwealth Director of Public Prosecutions

Date of hearing: 25 February 2010

Date of judgment: 3 March 2010