R v Oliver

[2018] QCA 348

SUPREME COURT OF QUEENSLAND

CITATION:

R v Oliver [2018] QCA 348

PARTIES:

R
v
OLIVER, Dean Matthew
(applicant)

FILE NO/S:

CA No 300 of 2018
DC No 1893 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 14 November 2018 (Porter QC DCJ)

DELIVERED ON:

Date of Orders: 30 November 2018
Date of Publication of Reasons: 14 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2018

JUDGES:

Sofronoff P and Fraser and Philippides JJA

ORDERS:

Orders delivered 30 November 2018:

1.   Leave to appeal granted.

2.   Allow the appeal.

3.   Set aside sentence imposed on count 1.

4.   In lieu thereof the appellant is sentenced to a term of imprisonment for a period of 18 months, the term of imprisonment is suspended forthwith and the appellant must not commit another offence punishable by imprisonment within a period of three years if the appellant is to avoid being dealt with for the suspended term of imprisonment.

CATCHWORDS

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of unlawful stalking with a circumstance of aggravation, namely, that he intentionally threatened the use of violence against the complainant – where the applicant was sentenced to 18 months imprisonment, to be suspended after three months – where the learned sentencing judge applied s 9(3) of the Penalties and Sentences Act 1992 (Qld) and therefore did not apply s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) – where s 9(2A) of the Penalties and Sentences Act 1992 (Qld) excludes the operation of s 9(2)(a) where an offence “involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person” or “resulted in physical harm to another person” – whether an intentional threat of violence does not fall within the categories of case stipulated under s 9(2A) of the Penalties and Sentences Act 1992 (Qld), such that it was erroneous for the learned sentencing judge to apply s 9(3) of the Penalties and Sentences Act 1992 (Qld) in sentencing the applicant

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(2A), s 9(3)

R v Breeze (1999) 106 A Crim R 441; [1999] QCA 303, distinguished
R v Dullroy and Yates; Ex parte Attorney-General (Qld)[2005] QCA 219, distinguished
R v Tobin[2008] QCA 54, cited

COUNSEL:

S C Holt QC for the applicant
C N Marco for the respondent

SOLICITORS:

Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P: This application for leave to appeal against sentence raises a question about the meaning of s 9(2A) of the Penalties and Sentences Act 1992. In particular, it raises a question about the meaning of the expression “the use of … violence against another person”.

2. The applicant was charged with the following count:

   “that between…