R v CDO

This sentence application raised an interesting issue for the Court of Appeal’s consideration: whether the sentencing judge had erred in concluding that the sentence imposed upon the applicant would not punish him twice for the same offence. In refusing leave to appeal against sentence the Court held that in this case, s 16 Criminal Code 1899 had no application and the sentencing judge had correctly identified that the punishable conduct for the offences for which the applicant had previously been sentenced and the act which underpinned the subsequent offence were distinct.

Mullins P, Brown JA and Wilson J

17 April 2025

The applicant had been convicted on his own plea of guilty of unlawful stalking with a circumstance of aggravation (which was that a number of the acts constituting the offence breached a temporary protection order which had previously been made in the Magistrates Court). He was sentenced to eight months’ probation and a conviction was recorded. [3]. Citing R v Dibble; Ex parte Attorney-General (Qld) (2014) 238 A Crim R 511, he sought to argue that s 16 Criminal Code 1899 (“the Code”) precluded him from being punished for the offence since the Magistrates Court offences constituted the same factual basis for the current District Court stalking offence. [6]. He had previously been sentenced for contravening both the temporary protection order and a police protection notice. [5].

The issues for the Court’s determination were twofold:

(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)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 for the circumstance of aggravation on the indictment, such that s 16 of the Code applied. [25].

The applicant’s submissions

The applicant contended that:

(1)the primary judge had incorrectly distinguished the stalking offence from the Magistrate Court offences by focussing on the elements of stalking;

(2)the identification of the punishable acts depends on the totality of the behaviour before the Court as offending behaviour, and it is not correct 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 was identical to the punishable acts constituting the unlawful stalking;

(4)without the facts constituting the Magistrates Court offences, for which he had already been punished, there would be no unlawful stalking charge. [40].

Consideration

In refusing leave to appeal against sentence the court held as follows:

(1)It was not the case that the Magistrates Court offences and the stalking offences contained common elements. In any event, s 16 of the Code has wider application. It indicates that a person cannot be twice punished for the “same act or omission” (and not just offences that contain the same elements). [47].

(2)The test of “same punishable acts or omissions” for the application of s 16 has been consistently endorsed by the courts since it was formulated. [49]–[50].

(3)Correctly applying s 16 is a difficult task which relies upon precisely identifying the punishable act underpinning each separate offence: see R v Tricklebank [1994] 1 Qd R 330, 331. [51].

(4)In the current matter, the basis of the acts which led to the applicant’s conviction and punishment in the Magistrates Court was his carrying out discrete acts which were prohibited by an order. [60]. As for 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”. [62]. The underlying basis of the Magistrates Court offences was in stark contrast to the stalking offence. [67]. The punishable conduct for the stalking offence was readily distinguishable from the earlier Magistrates Court offences. [69].

(5)The sentencing judge had correctly determined that whilst s 16 did not apply to the stalking offence, it applied to the circumstance of aggravation. In order to prove the latter it was necessary to show that the applicant’s conduct breached Magistrates Court orders, for which he had already been punished. The circumstance of aggravation was that, for four of the acts constituting the unlawful stalking, the applicant contravened an order made by the Magistrates Court. Given he had already been punished for doing so, pursuant to s 16 he could not be punished again. [70]–[72]. The punishment for contravening both the temporary protection order and a police protection notice “was limited to their isolated, rather than connected and accumulated, circumstances”. [73].

Disposition

The application for the appeal against sentence was dismissed.

A Jarro