Obiter

R v Morris [2010] QCA 315

In R v Morris,¹ the Court of Appeal considered whether the applicant’s sentence for unlawful stalking, for posting defamatory notices and implicating the complainant as a murderer, was excessive.

COURT: Queensland Court of Appeal (Holmes and Fraser JJA, McMeekin J).

PROCEDURAL HISTORY: Appeal from the District Court. Applicant pleaded guilty to unlawful stalking pursuant to s 359B of the Criminal Code Act 1899 (Qld), sentenced to 18 months’ imprisonment, suspended after three months for an operational period of two years.² Bail granted after serving four days.³

FACTS:

1. Over two months, the applicant posted defamatory notices in Samford, replicating a Crime Stoppers flyer of a missing boy’s photo, Daniel Morcombe.⁴ The applicant added the words: “You will be brought to justice” next to the complainant’s name.⁵
2. The flyers implied the complainant’s involvement in the disappearance and possible murder and were placed in areas frequented by the complainant and family.⁶
3. The applicant was filmed putting up a poster and later pleaded guilty on cross-examination. He had no criminal history and cooperated with police.⁷

GROUNDS FOR APPEAL:

The applicant seeks leave to appeal against the severity of his sentence on the ground that the sentence imposed was manifestly excessive.⁸

ISSUES:

1. Whether the sentencing judge had sufficient regard to s 9(2)(a) of the Penalties and Sentences Act 1992?
2. Was the sentence manifestly excessive given there was no circumstances of aggravation, threats or acts of violence?

RELEVANT LAW:

Criminal Code Act 1899 (Qld) — Unlawful Stalking

Unlawful stalking is an offence under s 359E of the Criminal Code Act 1899 (‘Criminal Code’).⁹ The stalking provisions ss 359A-359F were added to the Criminal Code in 1993.¹⁰ Section 359B relevantly provided:

“Unlawful stalking, intimidation, harassment or abuse” is conduct—
(a) intentionally directed at a person (the “stalked person”); and …
(c) consisting of 1 or more acts of the following, or a similar, type— …
(iv) leaving offensive material where it will be found by, given to or brought to the attention of, a person, …
(vii) giving offensive material to a person, directly or indirectly …¹¹

The act(s) under s 359B(c)(i)-(viii) causes apprehension or fear; or causes a detriment to the victim, s 359B(d). The mental element for unlawful stalking under s 359B(a) is intention.¹²

Penalties and Sentences Act 1992 (Qld)

Section 9 of the Penalties and Sentences Act 1992 relevantly provided:

(2) In sentencing an offender, a court must have regard to—
(a) principles that—
(i) a sentence of imprisonment should only be imposed as a last resort; and
(ii) a sentence that allows the offender to stay in the community is preferable; …¹³

COURT’S REASONING:

Imprisonment as a last resort?

The applicant’s counsel argued that the sentencing judge had overlooked s 9(2)(a) of the Penalties and Sentences Act 1992, which imposes imprisonment as a last resort.¹⁴ This claim was based on the judge’s failure to cite the Act and statement that his Honour had “no alternative” but to impose imprisonment.¹⁵

However, McMeekin J noted at [18], that the absence of an explicit reference does not suggest oversight, as the sentencing judge’s given experience, clearly deemed imprisonment warranted due to the seriousness of the offending conduct.¹⁶ As the sentencing judge remarked ‘the offending conduct was extremely offensive to the complainant’, given that the Morcombe case is notorious with the resultant inevitability of the inferences likely to be drawn, and given notices were posted throughout the complainant’s community.¹⁷

Sentence manifestly excessive?

McMeekin J disagreed with the sentence and imprisonment imposed, stating at [22] that ‘[t]he absence of any act or threat of violence is a significant matter’.¹⁸ At [23]:¹⁹

Generally speaking sentences of 18 months imprisonment or longer have been imposed where the conduct complained of involved a circumstance of aggravation, usually threats of violence. Examples include R v Keong,²⁰ R v Allie,²¹ R v Layfield,²² and R v AN.²³ In the former two cases, this Court reduced the sentences imposed to 18 months imprisonment.²⁴

The Court turned to R v Ali,²⁵ where the stalking was quite outrageous.²⁶ A three-year sentence for stalking simpliciter was upheld, due to the applicant’s persistent and threatening conduct over 15 months, causing the complainant financial and emotional harm.²⁷

Unlike R v Ali,²⁸ the Court considered the present applicant demonstrated good behaviour after police intervention, had no prior criminal history, and albeit late, plea of guilty, the utilitarian value of which cannot be overlooked,²⁹ are all mitigating factors warranting a more lenient sentence.³⁰

DECISION:

The Court of Appeal allowed the appeal (Holmes and Fraser JJA agreed with the reasons and order of McMeekin J). The sentence imposed was manifestly excessive — as there was an absence of aggravation in the circumstances, such as threats or acts of violence in the stalking conduct.

ORDER:

Application for leave to appeal against sentence granted.³¹ Sentence reduced to a three months term of imprisonment wholly suspended for an operational period of 12 months.³²

LEGAL SIGNIFICANCE:

In R v Morris [2010] QCA 315, unlawful stalking did not take the form of following the person or loitering near the person’s home.³³ In this case, defamatory notices were posted in areas frequented by the complainant, which inferred the complainant to the disappearance and possible murder of Daniel Morcombe, a high-profile Queensland case.³⁴

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FOOTNOTES:

1. R v Morris [2010] QCA 315 (Court of Appeal) (‘Morris‘). ↩︎
2. Ibid [5]. ↩︎
3. Ibid. ↩︎
4. Ibid. ↩︎
5. Ibid. ↩︎
6. Ibid. ↩︎
7. Ibid. ↩︎
8. Ibid 2 [4], [15]. The applicant’s counsel set out nine grounds that the sentence was manifestly excessive. ↩︎
9. Criminal Code Act 1899 (Qld) s 359E (‘Criminal Code‘). ↩︎
10. Criminal Law Amendment Act 1993 (Qld) No 65 of 1993; Andreas Schloenhardt, Josheph Lelliot, Criminal Law in Queensland (Thomson Reuters, 2020) 303. ↩︎
11. Criminal Code (n 9) s 359B. ↩︎
12. Ibid s 359D. ↩︎
13. Penalties and Sentences Act 1992 (Qld) s 9(2)(a). ↩︎
14. Morris (n 1) [18]. ↩︎
15. Ibid. ↩︎
16. Ibid. ↩︎
17. Ibid [19]. ↩︎
18. Ibid [22]. ↩︎
19. Ibid [23]. ↩︎
20. R v Keong [2007] QCA 163. A sentence of two years imprisonment for aggravated unlawful stalking was substituted for a sentence of 18 months imprisonment. Aggravation being a threat to use violence; and contravention of a protection order. ↩︎
21. R v Allie [1999] 1 Qd R 618. Note that the legislature later increased the maximum penalty from three to five years. The aggravating circumstances were threats to use violence. ↩︎
22. R v Layfield [2003] QCA 3. ↩︎
23. R v AN [2003] QCA 349. ↩︎
24. Morris (n 1) 4-5 [23]. ↩︎
25. R v Ali [2002] QCA 64 (‘Ali‘). ↩︎
26. Morris (n 1) 5 [24]. ↩︎
27. Ibid. ↩︎
28. Ali (n 25). ↩︎
29. R v Clark [2009] QCA 361, [25]. ↩︎
30. Morris (n 1) 5 [25]. ↩︎
31. See Morris (n 1). ↩︎
32. Ibid. ↩︎
33. Andrew Hemming, Criminal Law Guidebook: Queensland and Western Australia (Oxford University Press, 2021) 96. ↩︎
34. Ibid. ↩︎