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District Court 17 September 2008

R v GIBBON

[2008] NSWDC 227

Domestic & family violencePublic order & justice offences
APPEAL AGAINST CONVICTION

Citation: R v Gibbon [2008] NSWDC 227
Court: District Court of New South Wales
Date: 17 September 2008
Judge(s): Murrell SC DCJ

Background

The appellant was in a long-term de facto relationship with the protected person, F, for approximately eighteen years. Three children came from that relationship. At the time of the offending, F and the children were living in a home owned by the appellant, which was subject to ongoing Family Court property proceedings.

An Apprehended Domestic Violence Order (ADVO) had been in force since May 2006. It prohibited the appellant from engaging in conduct that intimidated or harassed F. On Boxing Day 2007, the appellant telephoned F five times between 12.15pm and 12.22pm seeking access to the children over the Christmas period. F repeatedly hung up. The calls were emotional, and the Magistrate at first instance found that the appellant swore at F, calling her "a stupid fucking bitch."

The Local Court convicted the appellant of knowingly contravening the ADVO. He appealed to the District Court, arguing that, because his intention was only to obtain access to his children and not to harass or intimidate F, the necessary mental element for the offence was absent.

  • What is the required mental element (mens rea) for the offence of knowingly contravening an ADVO prohibition against harassment or intimidation?
  • Does the prosecution need to prove that the defendant intended to cause the complainant to feel harassed or intimidated, or only that the defendant intentionally engaged in the conduct that in fact caused those feelings?
  • Was the conduct on Boxing Day 2007 sufficient to constitute harassment in the circumstances?

Decision

The District Court addressed the central question of mens rea directly. The court noted that the legislation did not resolve the issue expressly, but reasoned that its structure is directed at prohibiting conduct that may produce harassment or intimidation, rather than requiring proof that a defendant specifically intended that outcome. The court held that the necessary mental element is an intention to engage in the relevant conduct, combined with knowledge that an ADVO is in force. A specific intention to harass or intimidate the protected person is not required.

Applying that standard, the court found the offence was made out. The appellant had deliberately made repeated calls to F. She had hung up four times and made it unambiguously clear she did not wish to continue. Despite this, the calls continued. The court had no difficulty finding that persistent, emotionally charged calls in those circumstances constituted harassment, even if the appellant's underlying motive was access to his children rather than a desire to upset F.

The court accepted the Magistrate's finding that the appellant had raised his voice and sworn at F, noting those findings were consistent with the highly charged context. The court also accepted that F's resulting distress was real, observing she was crying and visibly upset when police spoke to her more than an hour later.

On sentence, however, the court found that the offending fell at the lower end of seriousness. The Crown itself conceded as much. The court took into account the appellant's good character, his age, the absence of any other harassing conduct before or after the incident, and the extenuating circumstances of an emotionally fraught Christmas period during active Family Court proceedings.

Orders Made

  • The appeal against conviction was dismissed; the offence was found proved.
  • Pursuant to section 10 of the Crimes (Sentencing Procedure) Act, the court did not proceed to record a conviction, and instead directed that the charge be dismissed.

Key Takeaways

  • The District Court held that the mens rea for knowingly contravening an ADVO harassment or intimidation prohibition requires only that the defendant intentionally engaged in the relevant conduct while knowing the order existed. A specific intention to cause the protected person to feel harassed or intimidated is not required.
  • Repeated phone calls made after the recipient has clearly and repeatedly indicated she does not wish to continue the conversation can constitute harassment under an ADVO, even where the caller's motive is obtaining access to children rather than causing distress.
  • A defendant's subjective purpose in engaging in conduct does not determine whether that conduct amounts to a breach; the focus is on the nature of the conduct itself and whether it in fact harassed or intimidated the protected person.
  • Under section 10 of the Crimes (Sentencing Procedure) Act, a court may find an offence proved without recording a conviction where the defendant's good character, prior record, and the circumstances of the offending make that course appropriate.
  • In assessing seriousness for sentencing purposes, the temporary nature of the complainant's distress and the absence of any history of similar conduct were treated as mitigating factors alongside the appellant's character.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 562ZG(1) (offence of knowingly contravening an ADVO, as it stood in 2007)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 (finding of guilt without proceeding to conviction)

Cases cited: No cases were cited in the judgment.