R v Allie - [1998] QCA 75

IN THE COURT OF APPEAL	[1998] QCA 075
SUPREME COURT OF QUEENSLAND

C.A. No. 463 1997

Brisbane

[R v. Allie]

T H E Q U E E N

WILLIAM RUSSELL ALLIE

(Applicant) Appellant
Davies J.A.
McPherson J.A.
Fryberg J.

Judgment delivered 28 April 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF THE APPELLANT IS SENTENCED TO:

(A)

18 MONTHS IMPRISONMENT ON THE COUNTS RELATING TO MS BELL, MS EDWARDS AND MS NELSON, THE BALANCE OF EACH TERM TO BE SUSPENDED AFTER THE APPLICANT HAS SERVED 6 MONTHS, FOR AN OPERATIONAL PERIOD OF 4 YEARS; AND

(B) SUBJECT TO THE APPLICANT’S CONSENT, 6 MONTHS IMPRISONMENT AND THEN RELEASE UNDER THE SUPERVISION OF AN AUTHORISED COMMISSION OFFICER FOR 2 YEARS UPON THE REQUIREMENTS SET OUT IN S.93 PENALTIES AND SENTENCES ACT 1992 AND WITH THE FURTHER REQUIREMENT THAT HE COMPLY WITH A CONDITION NOT TO COMMUNICATE WITH ANY OFFICER OF THE DEPARTMENT OF FAMILY SERVICES EXCEPT BY HIS SOLICITOR OR WITH THE CONSENT OF THE OFFICER CONCERNED, ON THE COUNTS RELATING TO MR MALE AND MS MULKERIN.

CATCHWORDS: CRIMINAL LAW - offences against the person- unlawful stalking - appeal against sentence - where irrelevant matters taken into account - whether an aggravating circumstance not referred to in the indictment may be taken into account by the sentencing judge - whether the circumstance of aggravation in s.359A(6) connotes an express or an implied threat - whether a threat to use unlawful violence against another person is an element of the offence - threats against Department of Family Services officers.

Criminal Code ss.359A, 552B(1)
Penalties and Sentences Act 1992, s.93
R. v. De Simoni (1981) 147 C.L.R. 383
R. v. D [1996] 1 Qd.R. 363

Counsel:	Mr. M. P. Irwin for the applicant/appellant. Mr. T. Winn for the respondent.
Solicitors:	Legal Aid Queensland for the applicant/appellant.
Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	4 March 1998.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 28 April 1998

I agree with the orders proposed by Fryberg J. and I agree that they should be made because the learned sentencing Judge's sentencing discretion miscarried and because, in consequence, we must pass sentence ourselves. However I do not agree with his Honour's construction of s.359A of the Criminal Code and consequently for his reasons for reaching that conclusion.

As his Honour has pointed out, "threat" is used in the definition of "concerning act" in sub-s.(7)(g) and "threatens" is used in sub-s.(6)(a)(i). In the latter case the threat must be "to use unlawful violence". In both cases, in my view, the word is used in its ordinary meaning which involves, in accordance with the dictionary definition adopted by Fryberg J., the communication of an intention or determination to inflict punishment, pain or loss on someone either conditionally or unconditionally. That communication does not need…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Allie

Details

AGLC: R v Allie [1998] QCA 75
Case: [1998] QCA 75
Decision Date: 28/04/1998

CaseChat Overview and Summary

The Court of Appeal in Queensland heard an appeal by William Russell Allie against his sentence for stalking offences committed against several Department of Family Services officers. The appellant was convicted of five counts of stalking and was sentenced to two years imprisonment on each count, to run concurrently. The appellant argued that the sentences were manifestly excessive. The Court of Appeal allowed the appeal and set aside the original sentence, imposing a new sentence of 18 months imprisonment on three counts, with the balance of the sentence suspended after six months for an operational period of four years, and a six-month imprisonment sentence on the other two counts, followed by release under supervision for two years with conditions.

The court considered whether the sentencing judge had erred in taking into account threats made by the appellant, which were not alleged as circumstances of aggravation in the indictment. The court held that the sentencing judge miscarried in her discretion by considering the threats, as they were not alleged in the indictment and the appellant had not been convicted of making such threats. The court also considered the appropriate sentence, taking into account the appellant's lack of a significant criminal history, his distress due to family problems, and the need to protect Departmental officers from offensive conduct. The court imposed a sentence that reflected the seriousness of the offences and the need to protect the public while also taking into account the appellant's lack of a significant criminal history and his distress due to family problems.

Orders