Evans v The Commissioner of Police

[2009] QDC 174

[2009] QDC 174

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE DICK SC

No 212 of 2009

PETER JOHN EVANS	Appellant
and
THE COMMISSIONER OF POLICE	Respondent
BRISBANE ..DATE 15/06/2009
ORDER

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HER HONOUR: On the 10th of December 2008 the appellant was

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convicted of one count of unlawful stalking, one count of
possession of dangerous drugs and one breach of probation. He
was fined in relation to the possession of drugs and the

breach of probation.

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In relation to the count of unlawful stalking there was an order for three months' imprisonment cumulative on a sentence already imposed in the District Court at Maroochydore on the 6th of May 2008 and there was a non-contact order.

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In relation to the stalking offence on the 10th of December
2008, that offence was committed shortly after his release on

parole and his Court-ordered parole was cancelled.

It is not in dispute that when the learned Magistrate	30
sentenced the accused he indicated there should be a parole
eligibility date rather than a parole release date because of
section 160B(2) of the Penalties and Sentences Act, as it was
a custodial sentence subsequent to a breach of parole.
There's no argument that the sentence should not have been	40
cumulative or that the sentence of three months was manifestly excessive. It is true that all parties of the sentence proceeded on the basis that sentence had to be made cumulative. It did not and that is agreed.
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However, as I say, there's no real argument that that being the case, the sentence was manifestly excessive or that the Magistrate exceeded his discretion in making it cumulative. The real argument has been whether there should have been set 1-2 ORDER 60

a parole release date. Section 160B(2) means that that could

not happen and therefore I dismiss the appeal.

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