Appeal dismissed for man found guilty of stalking student

SITTING at a Queensland hotel with friends, the girl in the floral dress was at ease.

That was until she received an unnerving text message from a man she met online but had never met face to face: "Is that you in the floral dress?"

The moment was the tipping point for the Whitsunday's region high school student, who had received dozens of lewd texts from Paul Malcolm Henderson.

She asked friends to escort her to her car and drove straight home.

Following her request to cease contact, Henderson continued and ended up with police on his doorstep.

The man was sentenced to 18 months jail in February after a jury found him guilty of unlawful stalking between February 7 and April 19, 2011.

Henderson launched an appeal against his sentence, on grounds there had been a miscarriage of sentencing discretion.

Henderson submitted to the Court of Appeal the judge in his trial did not assess the different levels of culpability throughout the texting period.

In a written judgement delivered on Friday, Justice Debra Mullins outlined while the victim did respond to texts initially, Henderson's culpability increased after the victim called him and asked him to stop.

When Henderson sent a video of a penis to the victim, she responded via texts teasing him about the size of his penis.

Henderson continued to text the victim on February 11, 2011, despite the victim responding negatively after a suggestion for oral sex.

The victim also sent Henderson a similar video clip that night but said during her evidence in the trial her anxiety lifted throughout the night.

The victim sent Henderson a text the next day calling him a "dirty f***ing stalker freak" and Henderson responded with about 14 texts over the next 11 days.

Justice Mullins stated the victim was at a hotel wearing a floral dress when she got the message suggesting Henderson was watching her.

The texts continued - with the victim asking Henderson to stop - before the victim called him on February 27, 2011 and said she would go to the police.

The police went to Henderson's home but that did not deter him.

"The last text message the complainant received from the appellant was on 19 April 2011 "I found out where you live, I'll come around sometime - wink."," Justice Mullins stated.

Henderson submitted the trial judge did not direct the jury to differentiate between the texts before and after the telephone calling asking Henderson to stop.

But Justice Mullins found the trial judge was entitled to consider the overall seriousness of the conduct, even though it became more serious as it progressed.

The Court of Appeal dismissed the appeal.

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