R v Van Den Heuvel

[2006] QCA 177

SUPREME COURT OF QUEENSLAND

CITATION:

R v Van Den Heuvel [2006] QCA 177

PARTIES:

R
v
VAN DEN HEUVEL, Jason
(applicant)

FILE NO/S:

CA No 344 of 2005
DC No 632 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

26 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2006

JUDGES:

McMurdo P, Jerrard JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal allowed only to the extent of setting aside the concurrent 12 month term for contravention of a restraining order imposed under s 359F of the Criminal Code 1899 (Qld)
2. Application for leave to appeal otherwise dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant pleaded guilty to one count of stalking, breach of a suspended sentence and breach of a stalking restraining order imposed by the District Court – where sentencing judge sentenced applicant to 12 months imprisonment, declared 333 days spent in pre-sentence custody was declared to be time already served; activated the whole remainder of a suspended sentence (659 days) and ordered the activated sentence to be served cumulatively upon the 12 month stalking sentence – whether the trial judge erred in activating all of the previously suspended sentence to be served cumulatively upon the 12 month sentence imposed – whether the sentences imposed, in their totality, were manifestly excessive

Criminal Code 1899 (Qld), s 359F

R v Chard; ex parte A-G (Qld) [2004] QCA 372; CA No 277 of 2004, 8 October 2004, considered
R v Foodey [2003] QCA 310; CA No 30 of 2003, 25 July 2003, considered
R v Gander [2005] QCA 45; CA No 408 of 2004, 4 March 2005, considered

COUNSEL:

The applicant appeared on his own behalf
D R Mackenzie for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. :MCMURDO P I agree with Jerrard JA's reasons.

1. The applicant was sentenced on 12 March 2004 and 22 November 2005 to a total period of three and a half years imprisonment for offences of stalking the unfortunate complainant.  The maximum penalty for the stalking conviction of 12 March 2004 was five years imprisonment and, for the conviction of aggravated stalking of 22 November 2005, seven years imprisonment.  The applicant is now 32 years old.  His only criminal history relates to his unhealthy and unlawful obsession with the complainant.  His offending has not involved direct threats to her or others.  He has pleaded guilty to his past offences and, at least in respect of the most recent conviction, has co-operated with the authorities.  Setbacks in his own life appear to have made him emotionally vulnerable prior…