R v Oliver

In this appeal, the court considered the meaning of the expression ‘the use of … violence against another person’ in s 9(2A) of the Penalties and Sentences Act 1992.  It was not in dispute that the applicant had threatened to do violence to the complainant by way of abusive and threatening phone calls and text messages.  The court held that a ‘bare threat to use violence’ in ‘some unstated way and at some unstated time’ is not to be regarded as an offence involving the ‘use of violence against another person’.  

Sofronoff P and Fraser and Philippides JJ

14 December 2018

The applicant pleaded guilty to one count of unlawful stalking with the circumstance of aggravation that he intentionally threatened the use of violence against the complainant.  The conduct the subject of the charges consisted of abusive and threatening phone calls and text messages to the complainant, a former employee of the applicant who it appeared had been stealing from his business. [4]–[12].  The applicant was resentenced according to the usual principles under s 9(3) and received 18 months’ imprisonment, to be suspended after three months. 

On appeal against sentence, the issue for determination was whether the offence “involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person” within the meaning of s 9(2A)(a) of the Penalties and Sentences Act 1992, with the consequence of suspending the s 9(2)(a)(i) principle that prison is a last resort. [1].

President Sofronoff, with whom Fraser and Philippides JJA agreed, considered it important to be clear about the class of offenders to which the s 9(3) sentencing principles apply. [29]. The reasons review the rationale underlying ss 9(2A) and (3). [26]–[31]. His Honour observed:

“It might be thought a bare threat to use violence unaccompanied by any actions to suggest an imminent use of violence does not easily give rise to ‘the risk of physical harm’ or a ‘need to protect’ or a consideration of ‘the nature or extent of violence intended to be used’. That is because many threats are empty threats. Making a threat to use violence may not connote any intention at all actually to do violence. In some circumstances, a threat may be accompanied by actions so that the threat and the actions together may be regarded as violence although no touching has occurred.” [31].

His Honour was not prepared to construe s 9(2A) 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”.  The reasons note that the ordinary and natural meaning of the words does not, in any sense, bear such a connotation. Moreover, many empty threats are made with no intention to ever carry them out. [42].

The court found that the sentencing discretion miscarried and resentenced the applicant according to the principles in s 9(2). [43]. He received 18 months imprisonment wholly suspended, conditioned that the applicant be of good behaviour for three years. [52].

K Gover of Counsel