R v Holznagel[1998] QCA 26

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 that the applicant would resume her offensive behaviour as soon as she was released from custody.

Mr Grantham, a psychologist, who interviewed her on 25 August 1997, was rather more optimistic but does not appear to avert to the continuation of her harassment of the male complainant after she entered prison.  Perhaps he was not informed of this.

Notwithstanding the disturbing effects which the applicant's conduct has had on each of the complainants, the conduct here is not in the most serious category of offences of this kind and when one has regard to her cooperation with the police, her plea of guilty and importantly the absence of any criminal conduct other than caused by her obsession for the male complainant, this sentence appears to be a very high one. Indeed, were it not for the conclusion to which I have referred that is it is highly likely that the applicant, at the time of sentence, would resume her offensive behaviour, I might have concluded that it was too high.

But, in my view, that factor justified the imposition that the sentence which the learned sentencing Judge imposed.  As was pointed out during the course of argument, she had already served a substantial period of imprisonment and was still continuing her offending conduct at the time of sentence.

The applicant has now been in gaol for a period of nearly seven months, including the period of 92 days served before she was sentenced.  We have been informed that since she has been in custody she has been on antidepressant drugs which have improved her condition, that she is no longer on those drugs and that she has also been receiving some psychiatric help.

She is now due for parole on 11 March of this year.  Inquiries at the gaol have shown that, to the best of the information available there, she has not since sentence contacted either of the complainants either by telephone or by letter.  If that is so then she would have a reasonable expectation, in my view, that on the due date of eligibility of parole, 11 March this year, she would be paroled on that date.

In those circumstances, and for the reasons which I have already given on the information which was available to His Honour at the time of sentencing that there was a very serious risk that she would resume her offending conduct when released from prison, I cannot be satisfied the sentence which was imposed here was manifestly excessive and I would therefore refuse the application.

PINCUS JA:  I agree.

BYRNE J:  I agree.

DAVIES JA:  The application is refused.