Kellerman v Pecko - [1996] QCA 366

IN THE COURT OF APPEAL	[1996] QCA 366
SUPREME COURT OF QUEENSLAND

C.A. No. 244 of 1996.

Brisbane

[Kellerman v. Pecko]

D J KELLERMAN

WAYNE ALLAN PECKO

(Applicant) Appellant

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Pincus J.A. Dowsett J. Fryberg J.

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Judgment delivered 04/10/1996

Separate Reasons for Judgment of each member of the Court; Pincus J.A. dissenting. _____________________________________________________________________

APPLICATION GRANTED. APPEAL ALLOWED. SET ASIDE THE ORDER OF THE MAGISTRATE. ORDER THAT THE APPELLANT BE ADMITTED TO PROBATION FOR A PERIOD OF THREE YEARS, SUBJECT TO THE APPLICANT’S CONSENT. _____________________________________________________________________

CATCHWORDS: CRIMINAL LAW - sentenced for a number of offences -

Magistrate erred in concluding that he could not combine a suspended sentence with an order for restitution - unrelated offences - sentence appropriate to reflect overall criminality.

Counsel:	Ms D Richards for the applicant/appellant. Mr J Henry for the respondent.
Solicitors:	Legal Aid Office for the applicant/appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	10 September 1996.
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 04/10/1996

This is an application for leave to appeal against sentence. On 3 June 1996 the applicant was convicted, on a plea of guilty, of an offence of stealing and sentenced to 2 months imprisonment plus 3 years probation; the applicant contends this penalty is excessive. He was born on 1 March 1975 and was 20 years of age when he committed the offence in question; he is now 21.

The applicant’s history of offences and court appearances is as follows. In November 1994 he committed an offence of doing wilful and unlawful damage to property. In March 1995 he was arrested on charges of behaving in a disorderly manner and on an insulting words charge; he was due to appear in the Magistrates Court on 6 March 1995 but did not do so and his bail was forfeited. Later that month he stole a signed cheque from his grandfather; the amount was blank and he completed it to a value of $2,500. The cheque was banked and he spent the $2,500. It is this cheque offence which is the subject of the present application.

In August 1995 a bomb threat was made by telephone in relation to a school; that was done by another person, with the agreement of the applicant, using the phone at his home. This constituted another offence, dealt with by the magistrate at the same time as that which is the subject of the present application. In November 1995 the applicant appeared in the District Court charged with the offence of wilful and unlawful damage to property committed in November 1994; he was sentenced to 120 hours community service, but had performed none by the time he came before the court charged with the subject offence. It was said that his not having performed any of the service was due in part to bad administration; the magistrate was not satisfied with this excuse and nor am I. In October 1995 the applicant was to appear in the Magistrates Court in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kellerman v Pecko

Details

AGLC: Kellerman v Pecko [1996] QCA 366
Case: [1996] QCA 366
Decision Date: 4/10/1996

CaseChat Overview and Summary

This case involves an appeal against a sentence imposed by a magistrate on D.J. Kellerman for stealing a cheque. Kellerman was sentenced to two months imprisonment followed by three years probation. The appellant contends that the penalty is excessive. The case raises issues concerning the magistrate's approach to sentencing for a series of offences and the appropriateness of taking into account subsequent offences in determining the sentence for an earlier offence. The Court of Appeal was required to decide whether the magistrate erred in concluding that he could not combine a suspended sentence with an order for restitution and whether the sentence was appropriate to reflect the overall criminality. The Court held that the magistrate erred in concluding that he could not combine a suspended sentence with an order for restitution. However, despite this error, it was proper to impose a short term of imprisonment in respect of the stealing charge. The period of imprisonment selected, two months, was a sensible one. The Court allowed the appeal, set aside the order of the magistrate and ordered that the appellant be admitted to probation for a period of three years, subject to the appellant's consent.

Orders