R v Holznagel - [1998] QCA 26

[1998] QCA 26

COURT OF APPEAL

DAVIES JA
PINCUS JA
BYRNE J

CA No 426 of 1997

THE QUEEN

HOLZNAGEL, Tracey Leigh Applicant

BRISBANE

DATE 06/02/98

JUDGMENT

DAVIES JA: The applicant pleaded guilty in the District Court on 24 October 1997 on two counts of stalking with a circumstance of aggravation. She was sentenced to 15 months imprisonment and she seeks leave to appeal against that sentence. She is 32 years of age having been born on 10 September 1965.

The two counts of stalking occurred from 18 February 1997 to 22 June 1997 and from 8 May 1997 to 22 June 1997 respectively. The applicant's victim, in the second count, was Mr Downie who some years before had had a relationship with the applicant during the course of which they had lived together for a couple of months.

His mother, Mrs Dryden, is the complainant in the other count. The two complainants lived in the same house when the offences were committed. The concerning acts were mostly phone calls in violation of domestic violence orders but, on one occasion, the applicant attended the complainants' residence screaming abuse at them and a house guest, a young woman who was, at the time, associating with Mr Downie, and the police had to be called to remove her.

The applicant had some previous offences also related to her obsession with the male complainant. On 17 November 1995 she was convicted of using a telecommunications service to harass another person. She was given a recognisance and probation for 12 months.

Then, on 8 July 1996, she was convicted of the same offence again and also a breach of a domestic violence order. On this occasion she was given probation for two years and ordered to do community service of 75 hours. She was later fined for breach of the recognisance.

Because of continuing breaches of domestic violence orders and her probation, the applicant was taken into custody on 24 July 1997. Nevertheless, she continued to make phone calls to the complainants until her phone privileges in custody were terminated. Even after termination of those privileges she wrote alternatively abusive and appealing letters to the male complainant and some of his friends.

As late as the day before sentence the complainant received a letter from the applicant. There were an enormous number of insulting and threatening phone calls, sometimes as many as 23 in one day. It is not surprising that the totality of the conduct caused the complainants considerable distress and anxiety. They have had to unplug their telephone, change telephone numbers and move house, and the male complainant has sold his business.

In the applicant's favour is her cooperation with the police, her early plea of guilty and the absence of any convictions other than those arising out of her obsession. However, the learned sentencing Judge thought, with some justification, for the reason which I have already given, that the continuation of her conduct, even after imprisonment, rendered it highly likely…

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 Holznagel

Details

AGLC: R v Holznagel [1998] QCA 26
Case: [1998] QCA 26
Decision Date: 06/02/98

CaseChat Overview and Summary

In the case of The Queen v Holznagel, the applicant, Tracey Leigh Holznagel, appealed against the sentence imposed by the District Court for two counts of stalking with an aggravating circumstance. Holznagel was sentenced to 15 months imprisonment. The acts of stalking involved phone calls in violation of domestic violence orders, and a physical confrontation at the victims' residence, which led to a police intervention. Holznagel had a history of similar offences related to her obsession with one of the victims, Mr Downie, and had previously been convicted of using a telecommunications service to harass another person and breaching domestic violence orders. Despite being taken into custody, Holznagel continued to harass the victims, leading to considerable distress and significant changes in their lives, including moving house and changing telephone numbers.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the District Court was manifestly excessive. The Court considered the nature and seriousness of the offences, Holznagel's cooperation with the police, her early guilty plea, and her history of similar offending behaviour. The Court also took into account the expert opinion of a psychologist, who was somewhat optimistic about Holznagel's prospects for rehabilitation. However, the Court was particularly concerned with Holznagel's continued offending conduct even after her imprisonment, which led to the conclusion that it was highly likely she would resume her behaviour upon release.

The Court of Appeal determined that the sentence was not manifestly excessive, given the seriousness of Holznagel's conduct and the risk of reoffending. The Court noted that Holznagel had already served a substantial period of imprisonment and had not contacted the victims while in custody. The Court concluded that the sentence imposed by the District Court was justified under the circumstances, and the appeal against the sentence was refused.

Orders