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Nixon v Commissioner of Police [2018] QDC 188

appeal against sentence — two counts of using carriage service to make threat to cause serious harm offences contrary to s 474.15 of Commonwealth Criminal Code — original sentence imposed recording of conviction and fine of $1000 — antecedents — s 16A(2)(m) — sentencing judge did not err in focusing on nature of charges rather than appellant’s circumstances — sentencing judge merely compared case to one where victim had prompted threats — no relevant (mitigating) relation between circumstances of appellant and actions which amounted to offence — professional status of offender within broad approach to antecedents — difficulty with submission that court should not proceed to conviction because result would affect offender’s prospect of practicing in profession is that it engages consideration of whether profession’s governing body or offender’s future clients could have so little interest in learning of conduct constituting offence that matter should end without record — court may expect more than bare assertion that conviction would destroy offender’s prospects — manifest excess — offender argued sentence manifestly excessive “by the recording of a conviction” — to establish manifest excess error must be shown in exercising discretion — if upon facts sentence is unreasonable or plainly unjust, the court may infer failure to exercise discretion — assessing whether federal sentence excessive requires court to consider maximum penalty and all matters in s 16A as “are relevant and known to the court” — contrition — s 16A(2)(f) — s 19B — offender argued s 19B engaged because of character, antecedents, age, health or mental condition (s 19B(1)(b)(ii)) and because offences committed under extenuating circumstances (s 19B(1)(iii)) — but for lawyer’s assertion that defendant accepted behaviour was inappropriate, there was no indication of remorse — sentencing judge not wrong to conclude that level of remorse very low — lack of remorse need not exclude application of s 19B(1)(b)(i) —practical difference between order under s 20(1)(a) and order under s 19B is conviction — proceeding to conviction is “punishment”, indeed more than “a nominal punishment” — these were not trivial examples of offence — proper consideration of matters in s 16A would cause a court to proceed to conviction — absence of express conclusion not to proceed under s 19B does not show error — sentencing judge, having examined s 19B(1) matters was not persuaded any of them called for consideration of so-called second step — appeal dismissed
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