R v CDO[2025] QCA 56

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Wilson J.
2. [2]
   BROWN JA:  I agree with Wilson J.
3. [3]
   WILSON J:  On 27^th March 2024, the applicant pleaded guilty in the Ipswich District Court to one charge of unlawful stalking with a circumstance of aggravation.  The aggravating circumstance was that four of the acts constituting the unlawful stalking contravened an order made by the Ipswich Magistrates Court on 9 November 2020 (the stalking offence).  The applicant was sentenced to eight months’ probation with a conviction being recorded.^[1]

4. [4]
   On 29 March 2024, the applicant filed an application to appeal his sentence with one ground of appeal:

“That the learned sentencing Judge erred in ruling that the sentence would not doubly punish the Defendant contrary to s 16 of the Criminal Code Act 1899.”

5. [5]
   Prior to pleading guilty to the stalking offence in the District Court, the applicant pleaded guilty (and was sentenced) to three offences of contravening a domestic violence order and one offence of contravening a police protection notice in the Ipswich Magistrates Court (the “Magistrates Court offences”).
6. [6]
   The applicant submits that, as the Magistrates Court offences constituted the same factual basis for the District Court stalking offence, then, pursuant to s 16 of the Criminal Code (Qld) (the “Code”), he could not be punished for the stalking offence as well.
7. [7]
   Section 16 of the Code states:

“16  Person not to be twice punished for same offence

A person can not be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission.”

8. [8]
   Accordingly, the applicant submits that, for the stalking offence, he should have been convicted, not further punished or admonished, and discharged.  The applicant does not contest the order extending the restraining order.

The offences

9. [9]
   Section 177 of the Domestic and Family Violence Protection Act 2012 (Qld) sets out the offence of contravention of a domestic violence order:

“177Contravention of domestic violence order

1. This section applies if a respondent against whom a domestic violence order has been made—
   1. was present in court when the order was made; or
   2. has been served with a copy of the order; or
   3. has been told by a police officer about the existence of the order.

2. The respondent must not contravene the order.

Maximum penalty—

1. if, within 5 years before the commission of an offence against this subsection, the respondent has been previously convicted of a domestic violence offence—240 penalty units or 5 years imprisonment; or
2. otherwise – 120 penalty units or 3 years imprisonment.”

10. [10]
    As Bowskill CJ observed in CDL v Commissioner of Police (“CDL”),^[2] the offence is failing to comply with, or breaching conditions of, an order:

“The relevant offence is contravening a domestic violence order; that is, failing to comply with, or breaching, the conditions of an order, which has, by its very nature, been put in place to prevent particular behaviour which is dangerous and causing harm to the person entitled to the protection of it. The maximum penalty for doing so the first time is 120 penalty units or three years’ imprisonment. The maximum penalty for doing so a second time, within five years, is 240 penalty units or five years’ imprisonment”.^[3]

11. [11]
    In the same vein, s 178 of the Domestic and Family Violence Protection Act sets out the offence of contravention of police protection notice:

“178Contravention of police protection notice

1. This section applies to a respondent in relation to whom a police protection notice is in force.

Note—

See section 113(1) for when a police protection notice takes effect.

2. The respondent must not contravene the police protection notice.

Penalty—

Maximum penalty—120 penalty units or 3 years imprisonment.”

12. [12]
    Chapter 33A of the Code deals with the offence of unlawful stalking, intimidation, harassment or abuse.  Section 359E of the Code sets out the offence of unlawful stalking:

“359E.Punishment of unlawful stalking, intimidation, harassment or abuse

1. A person who unlawfully stalks, intimidates, harasses or abuses another person is guilty of a crime.”

13. [13]
    Section 359B^[4] of the Code sets out what constitutes unlawful stalking, intimidation, harassment or abuse:

“359B.“Unlawful stalking”” is conduct—

1. intentionally directed at a person (the “stalked person”); and
2. engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
3. consisting of 1 or more acts of the following, or a similar, type—
   1. following, loitering near, watching or approaching a person;
   2. contacting a person in any way, including, for example, by telephone, mail, fax, e-mail or through the use of any technology;
   3. loitering near, watching, approaching or entering a place where a person lives, works or visits;
   4. leaving offensive material where it will be found by, given to or brought to the attention of, a person;
   5. giving offensive material to a person, directly or indirectly;
   6. an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
   7. an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and
4. that—
   1. would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or
   2. causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.”

14. [14]
    The natural meaning of s 359B(d) of the Code is that the characteristic of causing apprehension or fear or detriment applies to the conduct and not necessarily to each individual act relied upon to constitute the conduct.  As Lyons J in R v Conde (“Conde”),^[5] observed:

44. [44]
    In my view, this submission is supported by the manner in which stalking is defined in s 359B. It is there described as conduct having four characteristics. Paragraph (d) identifies a necessary characteristic. However, the natural reading of the section suggests that this characteristic must apply to the conduct, and not necessarily to each individual act relied upon to constitute the conduct. The natural reading is reflected in the way the section is set out. The singular verb “causes” in para (d) more naturally refers, as a matter of grammar, to “conduct”, than to “1 or more acts” in para (c), though this is not a particularly strong guide.
45. [45]
    In many cases, it is likely that the characteristic identified in para (d), whether it relates to an apprehension of fear of violence, or to detriment, will reflect the cumulative effect of a series of acts. It is by no means difficult to envisage a situation where a series of acts has either of the effects described in s 359B(d), but it is not possible to ascribe that effect to any particular act, taken in isolation. There is no logical reason to think that the legislature would intend to exclude such conduct constituted by a series of acts each of which has one of the effects identified in s 359B(d). Section 359B(c) confirms that the focus of the section is on conduct (either protracted, or occurring on more than one occasion), rather than on individual acts. Notwithstanding that s 359B identifies conduct which constitutes an offence, it seems to me that the considerations just mentioned make it sufficiently clear that the offence is intended to include a course of conduct consisting of more than one of the acts identified in s 359B(c), even where it is not established that each act, taken in isolation, would cause or caused the relevant fear, apprehension or detriment.^[6]

15. [15]
    The scope of the definition of unlawful stalking, and the offence, is limited by s 359D^[7] of the Code:

“359D.“Unlawful stalking” does not include the following acts—

1. acts done in the execution of a law or administration of an Act or for a purpose authorised by an Act;
2. acts done for the purposes of a genuine industrial dispute;
3. acts done for the purposes of a genuine political or other genuine public dispute or issue carried out in the public interest;
4. reasonable conduct engaged in by a person for the person’s lawful trade, business or occupation;
5. reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving.”

Chronology

16. [16]
    In this matter, the chronology of events assumes importance and can be summarised by the following table: 

The first s 590AA application

17. [17]
    On 12 April 2023, the applicant applied to the Ipswich District Court to narrow the prosecution’s particulars of the stalking offence, on the basis that the particulars for the unlawful stalking offence coincided with the particulars of the other offences he previously pleaded guilty to in the Ipswich Magistrates Court.
18. [18]
    The applicant relied on s 16 of the Code and submitted that the continued prosecution of the stalking offence, so far as it relied on offences for which he had already been convicted, ought not be permitted to proceed.
19. [19]
    In relation to the commonality between the offences dealt with in the Magistrates Court and the particulars of the stalking indictment in the District Court, the applicant highlighted that:

    1. at that time, there were 10 acts particularised by the prosecution as the basis for the stalking charge, and
    2. in respect of the first four of those acts, the applicant had already been dealt with in the Magistrates Court for offences of breaching the protection order and had also already been sentenced for those offences.
20. [20]
    The applicant submitted that, as he had already been punished for that conduct in the Magistrates Court, it was inappropriate that such conduct was then relied upon to prove the subsequent stalking offence in the District Court.
21. [21]
    The applicant submitted further that any conviction in relation to the stalking offence would offend s 16 of the Code as it would result in him being sentenced for that stalking offence and, therefore, doubly punished for the acts that had already been dealt with in the Ipswich Magistrates Court.
22. [22]
    The application was heard on 22 June 2023, where his Honour Lynch KC DCJ ultimately refused the application and, in doing so, stated in his reasons:

“In my view, the circumstances of the present case permit the Prosecution to charge the charge of stalking, which includes conduct for which the Applicant has already been convicted and sentenced, and, if convicted of the stalking offence, it simply remains a matter for the sentencing Court to adjust any sentence to be imposed for the stalking offence to take account of the earlier punishment.

That, to my mind, does not, in any way, infringe section 16 of the Code regarding double punishment and that approach would specifically avoid any double punishment by reducing any sentence to be imposed for the stalking offence to take account of the earlier punishment. That approach seems to me consistent with the decisions regarding offences of trafficking and with the decision in Kirapatea and does not offend against the principle or offend against section 16. In those circumstances, it seems to me that the application is, in that way, at least, misconceived and should be dismissed. Submissions were made by the parties concerning section 138 of the Domestic and Family Violence Protection Act and whether that permits expressly an exception to the rule provided by section 16 against double punishment.

There had been decisions of the District Court in two instances that I am aware of, which suggest that that is an express provision permitting double punishment for conduct charged under the Domestic and Family Violence Protection Act. I should say for myself, and with respect to the Judges who gave the decisions that I have been referred to, that I am not necessarily convinced that that reasoning is correct, having regard specifically to the terms of subsection (3) of section 138. However, in the circumstances, it is not necessary that I make any final decision as to that because it seems to me the primary submission of the Applicant should be rejected. For the reasons that I have explained, it follows that the application should be refused. A formal order is that the application is refused.”

23. [23]
    On 24 October 2023, the matter was listed for trial to commence in the sittings commencing 18 March 2024.

The second s 590AA application

24. [24]
    The applicant re-agitated the issue of whether s 16 of the Code applied to the stalking charge in a subsequent application heard on 26 March 2024 by Power KC DCJ (“the primary judge”) which raised the following matters:

    1. by agreement with the prosecution, the applicant was to plead guilty to a fresh indictment charging a single count of unlawful stalking (s 359B of the Code) between 18 November 2020 and 13 December 2020, in contravention of a court order, as particularised by four acts committed by the applicant;
    2. the applicant had previously been convicted and sentenced in the Magistrates Court for four offences of contravening a domestic violence order upon the same facts which form the basis of the particulars and the District Court indictment;
    3. because the applicant has already been punished for those acts before the Magistrates Court, s 16 of the Code prohibits any further punishment following his plea;
    4. accordingly, the appropriate order was for the District Court to either permanently stay the indictment, dismiss the charge without conviction, or alternatively, convict but not further punish, and
    5. the decision to dismiss the previous s 590AA application by Lynch KC DCJ on 22 June 2023 did not deal with the question which now arises (although the applicant acknowledged that relevant obiter dicta comments were made).
25. [25]
    In dealing with this application, the primary judge framed the following questions to be considered:

    1. Question 1 – whether the acts for which the applicant had already been punished in the Magistrates Court were the same acts for which he stood to be sentenced on the stalking indictment, such that s 16 of the Code applied;
    2. Question 2 – whether the acts for which the applicant had already been punished in the Magistrates Court are the same acts for which he stood to be sentenced for the circumstance of aggravation on the indictment, such that s 16 of the Code applied; and
    3. Question 3 – if the answer to either question 1 or question 2 was yes, then whether s 138 of the Domestic and Family Violence Protection Act displaced s 16 of the Code, such that the applicant could be punished twice for the same acts.
26. [26]
    Only question 1 and 2 are relevant to this application.^[8]
27. [27]
    In relation to question 1, the primary judge found that the punishable act for stalking was the totality of the applicant’s conduct, deliberately directed at the stalked person, not each individual action.
28. [28]
    Accordingly, s 16 of the Code did not apply because the same act or omission was not being punished by the indictable charge of stalking.  The primary judge set out his reasons in coming to this conclusion:

“In relation to question 1, that is, the application of section 16 to these circumstances with regard to the charge itself, I find that section 16 does not apply. Central to my decision in that regard is the nature of the offence of stalking. Amongst other requirements to establish the offence of stalking, the defendant’s actions must be

1. intentionally directed at the stalked person and 

2. carried out in a protracted way on one occasion or on more than two or more occasions.

With regard to requirement (a), I have had consideration to the discussion of what an act or omission means under section 2 of the Code and the High Court in R v Barlow [1997] 188 CLR 1. With regard to the offence of staking [sic], the offence requires that the conduct is intentionally directed at a person (the stalked person). This is more than a mere general state of mind by which acts are done, that is, with knowledge or intention, etcetera. It is a description of the type of action that is criminalised, provided other elements are established. I find that that is a critical feature of this offence which differs from the punishable offending – punishable acts with regard to breach of domestic violence order.

With regard to element (b) of the conduct, a single non-protracted act cannot be stalking even if all the other elements are established. In the present case, it does not appear that the defendant’s actions on any one occasion could be described as protracted, with the possible exception of the episode on the 19th of November 2020, but I note that it is not relied upon by the prosecution in that way. This means that the offence of stalking is made up of a series of acts, but that the tipping point at which time the offending becomes stalking may or may not be established until there has been an accumulation of such acts.”

29. [29]
    In relation to question 2, the primary judge considered the circumstance of aggravation for the stalking offence, which stated:

“... and for four of the acts constituting the unlawful stalking, [the applicant] contravened an order made by the Ipswich Magistrates Court on the 9th of November 2020.”

30. [30]
    The functional aspect of that circumstance of aggravation was that it increased the maximum penalty of the unlawful stalking offence from five to seven years, and to prove the circumstance of aggravation it would be necessary to prove that the conduct breached the orders of the Magistrates Court under a domestic violence order.
31. [31]
    The primary judge found that the applicant had been punished for his conduct that contravened the domestic violence order, and therefore there was a unity of the punishable conduct with the circumstance of aggravation.  Accordingly, he found that s 16 of the Code applied to the extent that the applicant could not be twice punished for this circumstance of aggravation.
32. [32]
    The primary judge made it clear that his decision did not preclude clthe prosecution from maintaining the circumstance of aggravation on the indictment.  However, if the applicant pleaded guilty to the circumstance of aggravation, then as he could not be further punished for the circumstances of aggravation, the applicant would only be liable to a maximum penalty of five years,^[9] rather than the seven years that attaches to an unlawful stalking with a circumstance of aggravation.^[10]
33. [33]
    The applicant was then arraigned on the substantive offence of stalking and the averment that it was a domestic violence offence to which he pleaded guilty.
34. [34]
    The sentence hearing was adjourned to the next day, where, on 27 March 2024, the applicant was again arraigned on the substantive stalking charge with the averment that it was a domestic violence offence and, with the circumstance of aggravation, that the four of the acts constituting the unlawful stalking contravened an order made by the Ipswich Magistrates Court on 9 November 2020.  The applicant pleaded guilty.

The applicant’s submissions

35. [35]
    The applicant relies upon R v Dibble; Ex parte Attorney-General (Qld) (“Dibble”),^[11] ­where the defendant threw haymaker style punches towards the face of another male who was on the ground attempting to cover his head from being further assaulted.  For this conduct, he was charged with a public nuisance offence to which he pleaded guilty in the Magistrates Court and was fined with no conviction recorded. Two months later, the police charged the defendant with causing grievous bodily harm, having received a medical opinion about the injuries sustained by the complainant.
36. [36]
    In Dibble, the defendant raised s 16 of the Code and stated that, for the grievous bodily harm offence, he would be punished twice for the same act or omission for which he had already been punished by way of a fine for the offence of public nuisance.  At the first instance, it was found that there was a unity of time and place between the acts relied upon for the two charges and whilst the charges may be distinct in their legal formulation, they rested on the same course of conduct. Accordingly, s 16 of the Code had been contravened.
37. [37]
    The Attorney-General appealed and, at the appeal, submitted that the two offences can be distinguished in this way:

“That the [defendant] landed a wounding punch or punches on the complainant was an act or a series of acts essential to the causing of grievous bodily harm to him by the [defendant]. By contrast, the appellant submitted, for the public nuisance offence, neither was it necessary that any punch thrown by the [defendant] have landed on the complainant nor was it put to the magistrate that any punch or punches thrown by the respondent had been observed to land on the complainant”.^[12]

38. [38]
    The Court of Appeal did not accept such a distinction.  Gotterson JA noted that a public nuisance offence depends upon the totality of the behaviour as constituting the offending behaviour:

[25] For a public nuisance offence such as this, identification of the punishable act or acts which sustained a particular conviction will depend upon the totality of the behaviour which is put before the court as constituting the offending behaviour. If that behaviour is violence which includes landing a punch on another person, then the landing of the punch is part of the punishable acts. It is not to point to propose that other aspects of the offending behaviour (to the exclusion of the landing of the punch) would be sufficient to characterise that other behaviour as disorderly, offensive, threatening or even violent, as might sustain a conviction for a public nuisance offence.^[13]

39. [39]
    Ultimately, Gotterson JA noted that the offending behaviour upon his plea of guilty in the Magistrates Court was not particularised in a way which excluded any punch thrown by the respondent that landed on the complainant.^[14]  The Attorney- General’s appeal was dismissed.
40. [40]
    In summary, the applicant submits that:

    1. the primary judge was in error when he distinguished the stalking offence from the Magistrate Court offences by focusing on the elements of stalking, as Dibble considered, and rejected, such an approach.
    2. the identification of the punishable acts depends on the totality of the behaviour put before the Court as offending behaviour, and it is not to the point to say that some portion of the conduct could constitute the elements of one offence but not the other.
    3. the totality of the behaviour put before the Magistrates Court constituting the punishable acts of contravening the protection orders is exactly the same as the punishable acts constituting the unlawful stalking. 
    4. but for the facts constituting the four Magistrates Court offences, for which he has already been punished, there would be no unlawful stalking charge. The four offences that he had already pleaded guilty to are the central, and only facts, that give rise to the offence of stalking.  
41. [41]
    The applicant highlights that it is important to consider s 16 of the Code by reference to the underlying acts of each offence and refers to R v Spies (“Spies”),^[15] where the defendant pleaded guilty in the District Court to three charges:

    1. Count 1: Grievous bodily harm – constituted by the punches to the face and the kick to the head (convicted and not further punished); 
    2. Count 2: Grievous bodily harm with intent to disfigure – constituted by pouring lighter fluid over the complainant’s genitals and setting him alight (10 years imprisonment);
    3. Count 3: Torture – constituted by the remaining acts over the course of five days (six years imprisonment – cumulative upon count 2).
42. [42]
    On appeal, it was submitted that the offences were committed as part of a single enterprise and, consequently, the sentences should not have been ordered to be served cumulatively, “because counts 1 and 2 should properly have been considered as particulars of the offence of torture”.  The Court of Appeal rejected such a submission, and, in doing so, Sofronoff P noted that:

“[34]  Because the offence of torture does not contain, as an element, the infliction of injury, the cases in which torture has also involved causing grievous bodily harm have resulted in multiple counts on an indictment. The present case is one of these. It is correct, as the applicant argues, that the offences charged in the three counts on the indictment were all committed as part of a single enterprise. However, it does not follow that counts 1 and 2 are mere particulars of the charge of torture. On the contrary, when an episode of torture has consequences beyond the mere infliction of pain and suffering, it is right that a distinction should be made in the drawing of charges so that a serious offence, such as count 2 in the present case, is not wrongly subsumed into the lesser offence as the applicant has invited the Court to do. The commission of the serious, but lesser, offence of torture cannot reduce an offender’s culpability for the more serious offence of causing grievous bodily harm with intent simply because the applicant committed the offences in the course of a single episode of offending.

[35]  Not only are the offences legally distinct, but in the circumstances of this case at least, they are factually distinct. The applicant had punched and kicked Mr Christie, breaking his jaw and permanently damaging his brain. That assault was the subject of count 1 and did not involve proof of any intention of any kind. Torture can be inflicted without committing that offence and the fact that the assault was committed in order to cause pain and suffering is beside the point. The act of burning Mr Christie with the intention to disfigure him was an act that was distinct from all other acts done by the applicant with the intention of causing pain and suffering. That act might have been done in order to cause pain and suffering but, as the applicant admitted by his guilty plea, it was also done with the intention of disfiguring Mr Christie and with the actual result that he suffered grievous bodily harm. That it was an act that was done with the concurrent intention of causing pain is beside the point and is certainly not a factor in mitigation.

[36]  In sentencing the applicant, Clare DCJ appreciated perfectly well the significance of both s 16 of the Criminal Code and the authority of Pearce v The Queen. Section 16 and Pearce require a sentencing judge to take care not to impose a double punishment upon a person being sentenced for multiple offences that, to any degree, overlap. There was no such risk in this case. Despite some overlap, the three counts were manifestly distinct and the acts and surrounding circumstances that constituted each offence were factually distinguishable by reason of the nature of the offences. These offences called for separate treatment in sentencing as her Honour well understood. It was for that reason that her Honour was at pains to ensure that the sentence which she imposed for torture was a sentence that took no account of what the applicant had done to commit the offence that was the subject of count 2.”^[16]

43. [43]
    The applicant submits that, in Spies, each offence relied on different facts. However, in this case, the offence of stalking relies on the same facts in relation to offences for which the applicant had already been sentenced for.
44. [44]
    Whilst the gravamen of stalking is the pattern of acts and the causing of the detriment or the fear, the applicant states that, in this case, the pattern does not exist without reliance on the four charges for which he has already been punished. Accordingly, the applicant submits that he has been punished twice.
45. [45]
    The applicant submits that, as he had already been punished for the acts that constituted the stalking, he should have been convicted and not further punished or, pursuant to s 19(2) of the Penalties and Sentences Act 1992 (Qld), to have been discharged absolutely without conviction.

Consideration

46. [46]
    Pearce v The Queen^[17] made it clear that that it is wrong to punish an offender twice for the commission of offences which contain common elements:

“[40]     To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt the general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts”.^[18]

47. [47]
    In this case, the Magistrates Court offences and the stalking offences do not contain the same elements. However, s 16 of the Code has broader application and states that a person cannot be twice punished for the “same act or omission” and not just offences that contain common elements.
48. [48]
    The applicant states that the Magistrates Court offences and the stalking offence have a commonality of facts and the stalking offence relies on the same punishable acts that the applicant had been fined for in the Magistrates Court.  Accordingly, the applicant submits that s 16 of the Code is engaged.
49. [49]
    In Dibble, Gotterson JA endorsed the “same punishable acts or omissions” test as articulated by Hanger CJ in R v Gordon; Ex parte Attorney-General (“Gordon”).^[19]
50. [50]
    Gotterson JA in Dibble summarised the history of s 16 of the Code and how it has been applied since the Code was enacted in 1899:

“[15]    Sir Samuel Griffith, the author of the Code enacted in 1899, when sitting as Chief Justice of Australia in 1906 observed in Connolly v Meagher:

It is provided by sec 16 of the Criminal Code that no person shall be twice punished for the same act or omission.  That is not quite the same as the law which allows the defence of “autrefois convict,” which is dealt with in secs17 and 598 of the Code.  The rule in sec 16 may or may not be identical with the common law, but it is the law of Queensland.

[16] In the course of argument of that application for special leave, his Honour had described s 16 as laying down a “new test”.  It was a test, the meaning and scope of which fell to be defined by the course of judicial decision making.  Indeed, in 1902, sitting as Chief Justice of Queensland, his Honour had taken some of the first steps in that process. In R v Hull (No 2), he said:

I think it is only necessary to look at the words “the same act or omission”, to say, that when it is alleged that acts referred to in two indictments are the same, there is implied a unity, at least, of time and place.

[17] Whilst s 16 was applied in several reported cases which followed Hull (No 2), it was not until 1975 that detailed consideration was given to the meaning of s 16.  In R v Gordon; Ex parte Attorney-General the driver of a motor vehicle which collided with the rider of a motor cycle pleaded guilty in the Magistrates Court of being in charge of a motor vehicle whilst under the influence of liquor or a drug.  He was fined and disqualified from holding a driver’s licence. Later, in the District Court, the driver pleaded guilty to a charge of dangerous driving causing grievous bodily harm and the same facts as had been put before the magistrate were put before the judge. The judge ordered that the driver be convicted but held that because of s 16, he could not be punished for the offence.  The Attorney-General appealed.

[18] Hanger CJ considered the Queensland decisions to which I have referred and to decisions on the common law from elsewhere.  He then expressed the following conclusion:

Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the acts or omission would constitute two different offences.  It is to these cases that the section is directed.

(Emphasis supplied.)

[19]  His Honour then applied s 16 with that meaning to the case before him, holding that it did not apply to it.  He said:

If this construction of s 16 is right, then the section would have no application to the circumstances of the present case.  The punishable act or omission which had already been dealt with by the magistrate being in charge of a motor vehicle while under the influence of liquor or a drug – was not the punishable act or omission before his Honour – dangerous driving causing grievous bodily harm.  His Honour therefore proceeded on a wrong footing in taking the course which he did …

[20] ES Williams J, the other member of the full court who delivered a judgment (Hart J having died before judgment was delivered) agreed in the result, having stated that he thought that the proper test for s 16 was whether the same wrongful act or omission which had previously resulted in punishment “is the central theme, the focal point or … the basic act or omission in the later offence charged”.

[21] The test of same punishable acts or omissions articulated by Hanger CJ was subsequently applied by McPherson JA and Demack J in R v Tricklebank.  Their Honours did not regard the addition of an aggravating circumstance of being adversely affected by alcohol to a dangerous driving charge as having transformed the act of dangerous driving into the same act of drink-driving of which the offender had been punished in the Magistrates Court.

[22] Some years later, in the R v Harris, Pincus JA regarded the same punishable acts or omissions test as that to be applied for s 16.  The other members of the court, de Jersey CJ and Thomas JA, agreed generally with his Honour’s reasons.

[23] The same punishable acts or omissions test has been consistently adopted and applied in Queensland since its formulation.  The test was not the subject of challenge in this appeal.  To the contrary, both sides made submissions on the footing that it is the prevailing test.  In my view, it ought to be adopted and applied for this appeal.  I would add that it is in no sense inconsistent with the observations of Griffith CJ in Hull (No 2).  The test bespeaks a unity of time and of place, at least, in the punishable acts or omissions. Thus those observations are consistent with it”.^[20]

51. [51]
    As Macrossan CJ stated in R v Tricklebank (“Tricklebank”),^[21] “[t]here is no doubt that the application of section 16 of the Code presents difficulties”.^[22]  Care must be taken to identify the punishable act underpinning each offence when considering whether s 16 of the Code applies.
52. [52]
    Tricklebank involved consideration of an offender being convicted and sentenced for driving a vehicle with a blood alcohol concentration of 0.1% and then later being convicted and sentenced for an offence of dangerous driving causing death, with a circumstance of aggravation that the offender was adversely affected by alcohol.  McPherson JA characterised the punishable acts for each of these offences in this way:

“In the present case, driving the Toyota vehicle was an act that the applicant was doing at the time both offences were committed. However, driving a motor car is not a punishable act, and it was not that act “for” which the applicant was punished on either occasion. As regards the present matter, what the applicant was punished for was dangerous driving; as regards the other offence, what he was punished for may loosely be described as a form of drink driving, which more accurately is an offence created by s. 16(2) of the Traffic Act 1949 of driving a motor vehicle whilst the concentration of alcohol in the blood exceeds a specified ratio”.^[23]

53. [53]
    In Tricklebank, an issue on appeal was whether s 16 of the Code precluded the sentencing judge from taking into account the circumstance of aggravation (that the applicant was adversely affected by alcohol) when sentencing the offender for the dangerous driving offence. McPherson JA and Demack J (Macrossan CJ dissenting) held that s 16 of the Code did not apply to these circumstances.
54. [54]
    In this case, the Magistrates Court offences involved the applicant contravening domestic violence orders, and a police protection notice, by doing a number of acts, including:

    1. attending the complainant’s residence;
    2. sending messages to the complainant; and
    3. calling the complainant.
55. [55]
    None of these acts are a punishable act, per se, unless of course, such acts are done in contravention of an order prohibiting such an act, which is what occurred here.
56. [56]
    The criminality of the Magistrates Court offences concerned a breach of order prohibiting the applicant from doing certain things.
57. [57]
    The applicant was then charged with stalking, which is an ambit offence requiring the establishment of the following:

    1. that the conduct was intentionally directed at the complainant;
    2. that (relevantly here) the conduct was engaged in on more than one occasion; and
    3. that the conduct would cause fear, or did cause a detriment, reasonably arising in the circumstances.
58. [58]
    In Gordon, Williams J referred to whether the same wrongful act or omission which previously resulted in conviction and punishment is the central theme or focal point of the latter offending:

“In the final result it seems to me that the proper test is whether the same wrongful act or omission which previously resulted in conviction and punishment, is the central theme, the focal point or for want of a more apt choice of words and perhaps more appropriately, the basic act or omission in the later offence charged. If it is, then except in the case of resulting death in terms of the exception in s. 16, a person may not be twice punished for that same act or omission. In my view it would be dangerous to attempt to state the position more specifically in the hope of propounding a general rule. Each set of situations should be considered on their own particular ‘acts or omission’”.^[24]

59. [59]
    The applicant made the following submission in relation to the focal point of the offending:

“If we don’t speak about it in terms of the name of the offence but think about the underlying acts which clearly is what section 16 is directed to, we get an appreciation that the focal point is the basic act, and here, it’s more than the basic act or omission in the later offence charge. It’s more than a basic act, it is the very acts. Yes, they have an extra consequence. Whether that is, in fact, an act, or that is a consequence, the acts being the actual four acts for which he has already been punished.”

60. [60]
    However, in this case, the focal point of the acts which resulted in the conviction and punishment of the applicant in the Magistrates Court was carrying out isolated acts that were prohibited by an order.
61. [61]
    Accordingly, the criminality of the Magistrates Court offences concerned a breach of court order prohibiting the applicant from doing certain things.  As Bowskill CJ observed, (albeit not in the context of an appeal concerning s 16 of the Code) in CDL:

“[22]  It must be remembered that the offence under s 177(2 is constituted by contravening the domestic violence order. In the present case, the conditions of the order are quite modest: be of good behaviour towards the complainant and do not commit domestic violence; do not contact that person; and do not follow or approach them. That is the offence for which the maximum penalty, under s 177(2)(a), is five years’ imprisonment. If the conduct involved in contravening the order also constitutes another offence (such as assault, or assault occasioning bodily harm), the offender should be charged with that additional offence, and expect a penalty to be imposed which reflects that crime. The fact that an additional offence(s) was not committed, in the present circumstances, does not diminish the objective seriousness of the aptly described “flagrant breaches”, by this particular applicant, who repeatedly reoffended over the course of two years. In the context of a maximum penalty of five years’ imprisonment, a penalty of two years, imposed to reflect the combined criminality of the five offences, by a repeat offender such as the applicant, is not unjust or unreasonable”.^[25]

62. [62]
    In relation to the stalking offence, the punishable acts constituted the connected acts, rather than the individual acts themselves.  The stalking offence did not depend on the individual conduct alone, constituting each of the Magistrate Court offences, but on the connection and accumulation of acts along with a specific outcome.

63. [63]
    As the Court of Appeal in Conde outlined, stalking is an ambit offence which requires a fibrous connection between isolated acts with the additional feature of causing fear, or a detriment, to the complainant. The criminality arises from the continued intentional conduct which causes fear or a detriment to the complainant.  Stalking is directed at the pattern of offending, which is made up on continued intentional conduct.
64. [64]
    In this case, there is no unity of time between the stalking offence and the Magistrates Court offences.  The Magistrates Court offences are each concerned with a distinct act that occurred at a distinct time which, in turn, breached a court order. The punishable acts for the stalking offence encompasses the continued conduct of the applicant over an extended time.
65. [65]
    Importantly, in this case, the primary judge identified the earlier conduct represented isolated instances of offending.  It was only when there existed the fibrous connection between those isolated acts that two of the essential elements of stalking were made out. That connection, by accumulation, established the purposeful aspect of the offending and the repetition necessary.
66. [66]
    Neither aspect was essential to the establishment of the Magistrates Court offences, the natural consequence of this being that s 16 of the Code was not infringed.
67. [67]
    The focal point or theme of the Magistrates Court offences is starkly different to the stalking offence.
68. [68]
    The primary judge correctly identified that the punishable act which underpinned the stalking offence and the acts which underpinned the Magistrates Court offences (to which the applicant had pleaded guilty and was sentenced) were distinct.
69. [69]
    Each case rises and falls on its own facts and circumstances. In this case, the punishable conduct for the stalking offence is distinct from the earlier Magistrates offences.
70. [70]
    Accordingly, the primary judge was correct to conclude s 16 of the Code did not apply to the stalking offence but did apply to the circumstance of aggravation.
71. [71]
    To prove that circumstance of aggravation, it is necessary to prove that the applicant’s conduct breached Magistrates Court orders.  The applicant has already been punished for breaching these orders.
72. [72]
    Accordingly, s 16 of the Code precludes any further punishment in relation to breaching these court orders.  The circumstance of aggravation is that, for four of the acts constituting the unlawful stalking, the applicant contravened an order made by the Ipswich Magistrates Court on 9 November 2020.  The applicant has already been punished for contravening this order and, pursuant to s 16 of the Code, he cannot be punished again.
73. [73]
    The primary judge correctly concluded that the earlier offending, that is, the relevant punishable act, was the contravention of a court order alone.  Therefore, the punishment for those acts was limited to their isolated, rather than connected and accumulated, circumstances.

Disposition

74. [74]
    The applicant accepts that, if he is wrong about the operation of s 16 of the Code, then there is no challenge to the sentence which was imposed.
75. [75]
    Section 16 of the Code does not apply to the offence of unlawful stalking and there is no bar for the applicant to be punished for this offence.
76. [76]
    In all of the circumstances, the application for the appeal against sentence should be dismissed.