Proctor : March 2019
39 PROCTOR | March 2019 seven years’ imprisonment if the offender “uses or intentionally threatens to use violence against anyone” – where that circumstance of aggravation was alleged against the applicant – where the provision expressly ensures that not only will the use of violence as an incident of stalking aggravate the offence, but that a mere threat will do so as well – where s9(2A) cannot be construed so that an offender who commits an offence while making threats to use violence, in some unstated way and at some unstated time, is to be regarded as committing an offence that “involved the use of violence against another person” – where the ordinary and natural meaning of the words does not, in any sense, bear such a connotation – where s359E ensures that, as a circumstance of aggravation of the offence of stalking, that does not matter – where however, in s9(2A) the express expansion of the operation of the section beyond those offences in which violence is “used” to those offences in which violence may not have been used but in which the offender has been shown to be demonstrably committed to its use because he or she had actually attempted to use it, has actively sought by counselling or procuring another to use it or has conspired with others to use it, shows that a bare threat to use violence such as occurred in this case, is not included in the category of offences to which the more severe regime applies – where for that reason, the applicant fell to be sentenced in accordance with the principles stated in s9(2) – where unfortunately at the sentence hearing it was common ground between the parties, and the sentencing judge naturally accepted, the contrary position – where as a result, his Honour sentenced the applicant according to the principles of sentencing stated in s9(3) rather than s9(2) – where the sentence must be set aside and this court must sentence the applicant afresh – where it was common ground between the parties below that a head sentence in the order of 18 months’ imprisonment was appropriate – where no purpose whatsoever can be seen in requiring a person like this to serve any period of imprisonment – where indeed, that is why the prosecutor below correctly submitted that a suspended sentence was within the appropriate sentencing range – where personal deterrence is simply not a factor in this case. Leave to appeal granted. Allow the appeal. Set aside the sentence imposed on count 1. 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. R v Renata; Ex parte Attorney-General (Qld)  QCA 356, 18 December 2018 Sentence Appeal by Attorney-General (Qld) – where the respondent pleaded guilty to one count of unlawful striking causing death – where the respondent delivered an unprovoked and very forceful blow to the deceased’s jaw with a clenched first – where the deceased had his arms by his side – where the blow was delivered from out of the deceased’s sight – where the respondent was sentenced to seven years’ imprisonment – where it was ordered, pursuant to s314A(5) of the Criminal Code (Qld), that the respondent must not be released until he has served 80% of that term – whether the respondent’s sentence is manifestly inadequate – where the enactment of s314A reflects a legislative acknowledgement of the now notorious fact that a single strike to the head or neck can be fatal and that appropriate criminal responsibility should attach to it – where on the face of it, it might have been thought that the provision in s314A(5) requiring that the lesser of 80% of the sentence imposed and 15 years be served, indicates that a different sentencing regime, independent of that for manslaughter, is to be established by courts for a s314A offence – where this is not so for several reasons – where in the first place, the provisions of s314A(6), particularly those relating to an intensive correction order and suspension of a term of imprisonment, suggests that a wide sentencing regime similar to that for manslaughter is to prevail – where secondly, the same maximum penalty applies for a s314A offence as for manslaughter – where thirdly, no minimum penalty has been enacted for a s314A offence – where lastly, the requirement in s314A(5), by its own operation, imposes an indispensable measure of severity that does not apply to sentences for manslaughter – where it is unlikely, in the absence of an express indication to that effect, that a new and different penalties regime was envisaged for an offence against s314A that would compound the severity – where it follows that sentences for manslaughter have, and are intended to have, a relevance for sentencing under On appeal Different, better. email@example.com schultzlaw.com.au Sunshine Coast 07 5406 7405 Brisbane 07 3121 3240 Gold Coast 07 5512 6149 Michael Callow Travis Schultz What can your client expect when you refer them to us? 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