Yakimova v Briggs [2000] NTSC 62

PARTIES:	YAKIMOVA, Nina

	v

	BRIGGS, Darren John

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	JA 91 of 1999

DELIVERED:	2 AUGUST 2000

HEARING DATES:	5 June 2000

JUDGMENT OF:	MARTIN CJ

CATCHWORDS:

Appeal – general principles – whether to interfere with findings of court below.

Crimes Act 1914 (Cwth), s 85ZE(1), s 85S(1)(a) & s 19B(1)(d)

REPRESENTATION:

Counsel:
	Appellant:	P Cantrill
	Respondent:	M Hassall

Solicitors:
	Appellant:	Withnall Maley & Co
	Respondent:	DPP (Commonwealth)

Judgment category classification:	B
Judgment ID Number:	mar20022
Number of pages:	8

mar20022

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Yakimova v Briggs [2000] NTSC 62
No. JA 91/99

	BETWEEN:

	NINA YAKIMOVA
	Appellant

	AND:

	DARREN JOHN BRIGGS
	Respondent

CORAM:	MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 2 August 2000)

[1]	These are the reasons for the decision to dismiss appeals against sentence made at the completion of argument.  The appellant was charged with a number of counts under the provisions of the Crimes Act (Cwth) for using the postal and telephone services to harass a number of people.  After the close of the prosecution case, the learned Magistrate constituting the Court of Summary Jurisdiction, sitting at Darwin, ruled that there was no case to answer in respect of some charges, and at the conclusion of the evidence, found the appellant not guilty in respect of charges relating to one, Ross Parkinson.  However, he found her guilty of charges relating to Kathleen Randle and Ngaere Hornsby.  
[2]	Fines were imposed upon the appellant for:
•	using the telephone to harass Randle between 1 September 1996 and 31 December 1996, $400;
•	using a carriage service to harass Hornsby between 21 July 1998 and 14 October 1998, $500;
•	using a postal service to harass Hornsby on 4 September 1999, $100.
On a further charge of using a carriage service to harass Hornsby on or about 23 April 1999 the appellant was released without passing sentence upon her entering a recognizance in the sum of $500 to be of good behaviour for two years.
[3]	The maximum penalty which could be imposed for each offence is imprisonment for 12 months or a fine of $6,600, or both.
[4]	The original Notice of Appeal detailed the ground as being “severe penalties” but amended grounds of appeal were filed as detailed hereunder.
[5]	All of the charges arose in the context of a somewhat volatile relationship between the appellant and Parkinson, a Corporal in the Australian Army, and its aftermath.  The two people met and entered into a sexual relationship in Melbourne in about 1994.  He lived at the army barracks, visited her home and stayed there on a regular basis.  She gave birth to their daughter on 28 January 1996.  In the meantime he had been transferred to Darwin and considered the relationship to be at an end, a view which was apparently shared by her.  However, there was the child to consider.  They maintained telephone contact, not always amicable, whilst she sought financial support for the child; arrangements were made, but he was not regular with payment and she rang him about that.  
[6]	Parkinson went to Melbourne about mid 1996 to undergo a course of training, and notwithstanding the difficulties which had arisen between them, they resumed their sexual relationship which continued during the time he was in Melbourne.
[7]	After his return to Darwin, the appellant and Parkinson maintained contact, but he was “sending mixed messages” to her.  As a consequence of his telephone calls to her she was left in a state of confusion as to his intentions.  There were other difficulties between them relating to the child.  It was in that context that the appellant made the communications of which complaint was made by Parkinson.  His Worship found her not guilty upon the basis that in all the circumstances her actions did not warrant criminal sanction.
[8]	Kathleen Randle was a Captain in the army and commander of the unit in which Parkinson worked.  There was some confusion or mistake about his office telephone number.  On an occasion, shortly after he returned from Melbourne, the appellant telephoned a number expecting to connect to Parkinson, but Randle answered.  That led to the appellant forming a completely wrong view as to the Captain’s involvement with the Corporal.  She accused Randle of hiding him, sleeping with him, called her a “slut” and a “rag”.  His Worship found the appellant made further telephone calls, seven or eight of which were recorded on voice mail, over a period of three or four months of a like nature.  They were clearly directed to Randle and he found they amounted to harassment.
[9]	Ngaere Hornsby was a Corporal and worked with Parkinson during 1998.  She answered his telephone on one occasion to take any message.  It was the appellant calling, and she was informed that Parkinson was not there.  The appellant was invited to leave a message, but firstly declined, insisting that she speak to Parkinson.  The conversation went on with Hornsby inviting the appellant to leave a message or telephone later, and the appellant continuing to insist on speaking to him.  Both women became agitated, but Hornsby denied being rude.  In any event, on the following day, the appellant telephoned Hornsby and over a period thereafter used similar language to that directed at Randle with some embellishments.  His Worship held that although the appellant may have partly intended to warn Hornsby against Parkinson, “A major part was to heap abuse of a personal nature upon Hornsby and to harass her”.  The calls to Hornsby were to her office and her residence, some at night and some were recorded.  The appellant also posted a communication to Hornsby containing like material in written form.
[10]	There was no reason to found a belief on the part of the appellant, let alone even suspect, that either of the two women was involved with Parkinson in any way, other than in their work association.
[11]	The grounds of appeal as amended are:
“1.	That in assessing the appropriate penalties in Counts 3, 7, and 10, the learned magistrate failed to take into account adequately or at all the strong subjective factors arising from the nature of the Appellant’s previous relationship with Ross Parkinson.
2.	That in finding that, having been found guilty of 4 of the 10 charges the Appellant faced, she was not entitled to any discount, the learned magistrate erred in all the circumstances since in doing so he overlooked that in her evidence she had not disputed making the calls and had offered only explanations, not excuses, for so doing.
3.	That the learned magistrate erred in finding that the offences of which the Appellant was found guilty had nothing to do with the pressures she was under as a result of the actions of Ross Parkinson.”
[12]	It may well be true that the harassment of Randle and Hornsby would not have arisen had it not been for the great difficulty which the appellant had with Parkinson.  His Worship expressly accepted that there were emotional pressures on the appellant, but correctly pointed out that neither of the women had anything to do with that pressure.  In his reasons for sentence, his Worship added:
“The calls were certainly upsetting.  Any of them, in my view, would have been upsetting to almost anybody.  They were abusive and it was totally unfair on the recipients that they should be the butt of them and receive them.  They occurred over an extended period”.
[13]	As to Hornsby, his Worship noted that the appellant had gone to the trouble of finding her home telephone number and “invading her privacy there”.  In my opinion, his Worship was quite entitled to come to those views.  The number of communications made, the period of time over which they were made and their content make these offences very serious examples of what the law attempts to prohibit.
[14]	Even making allowance for some initial emotional response to each of the victims because of problems which the appellant was having with Parkinson, and perhaps a jealous suspicion, irrational though it was, the appellant’s culpability for the course of conduct in which she engaged thereafter cannot be mitigated on the basis of some flow over from her problems with Parkinson.
[15]	I do not accept the arguments advanced in support of grounds 1 and 3.
[16]	At the commencement of his sentencing remarks, his Worship pointed to the discount usually available to offenders who plead guilty, and said that in this case he could not give any.  That is obvious, the plea was “not guilty”.  But the appellant claims that because she had not denied making the calls or their content (many were recorded) and had offered only an explanation and not an excuse (I take that to mean an excuse which would absolve her from criminal responsibility) allowance should have been made in her favour.  I do not accept that.  
[17]	It is apparent from the transcript of the proceedings before the Court of Summary Jurisdiction that the appellant did not simply wish to make her explanation, she put the prosecution to strict proof of its case, obliged the women to give evidence of what they had heard and the impact upon them, and only belatedly offered an apology, and that to Randle alone.  On two occasions during the course of the proceedings her counsel indicated that she was prepared to change her plea to one of guilty, but on each occasion she changed her mind.
[18]	It is not necessary for an offender who wishes to place an explanation before a court as to the offending to put the prosecution to proof of the offence.  Explanations are commonly given by the offender through counsel and occasionally by way of evidence.  Disputes as to facts on sentence can be resolved by the calling of evidence on both sides if necessary.  It is not uncommon for an accused to enter pleas of not guilty to some charges and guilty to others, especially before a Magistrate when questions of possible influence upon a jury do not arise.  Ground 2 is not sustained.
[19]	In argument, it was suggested that his Worship erred in saying that the appellant had convictions from 1976 to 1997, but it is clear that he said that it was a slip of the tongue.  Immediately before he had correctly said that the appellant had not had any offending since 1987.  None of the convictions were for offences similar to these.
[20]	Before his Worship and to this Court, counsel for the appellant urged that she be dealt with under s 19B(1)(d) of the Crimes Act – discharge without proceeding to conviction.  A table of sentences prepared by the prosecutor for similar offences shows that sentences imposed range from a release without conviction to imprisonment.  There are many cases in which the offender has been convicted and sentenced to a term of imprisonment, but released upon entering into a recognizance to be of good behaviour for a period.  There are instances of fines having been imposed.  Clearly, this is the type of case where circumstances can vary so differently as to produce a significant variation in the type and severity of penalties imposed.  Counsel for the appellant sought to draw a comparison with a Queensland case in which the defendant had unsuccessfully defended charges involving the making of abusive and offensive telephone calls to a women who was having an affair with her husband.  That is not this case.  
[21]	His Worship referred to relevant considerations for the purpose, but clearly considered it was not an appropriate disposition to utilise s 19B(1)(d).  I am not at all satisfied that his Worship erred in the exercise of that discretion nor in his decision to impose financial penalties, nor as to the amounts of the fines.  He allowed six months within which the fines were to be paid, taking into account the appellant’s means.
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