R v Black; R v Sutton - [2004] QCA 369

SUPREME COURT OF QUEENSLAND

CITATION:

R v Black; R v Sutton [2004] QCA 369

PARTIES:

R
v
BLACK, Stephen Glen
(applicant/appellant)

R
v
SUTTON, Suzanne Margaret
(applicant/appellant)

FILE NO/S:

CA No 195 of 2004
CA No 196 of 2004
DC No 1760 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2004

JUDGES:

McPherson and Jerrard JJA and Holmes J
Joint reasons for judgment of McPherson JA and Holmes J; separate reasons of Jerrard JA, dissenting in part

ORDERS:

1.   Grant leave to Stephen Glen Black to appeal against sentence and allow the appeal to the extent only of setting aside the sentence on count 2 of five years imprisonment, suspended after 15 months for an operational period of four years and ordering instead a sentence of three years imprisonment, suspended after 12 months for an operational period of four years;

2.   That a warrant issue for the arrest of Stephen Glen Black, to lie in the Registry for seven days from the date of this order;

3.   Grant leave to Suzanne Margaret Sutton to appeal against sentence and allow the appeal, set aside the plea of guilty and conviction on count 19 and on count 1 set aside the sentence of two years imprisonment, suspended after three months for an operational period of three years and order instead a sentence of two years imprisonment, suspended forthwith for an operational period of two years

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – GENERALLY– where applicant Sutton convicted on plea of guilty to a count charging the making of a false statement under s 193 Criminal Code - where count pleaded to omitted an element of the offence charged that element being that the applicant had knowledge of the falsity of her statement - where respondent applied to amend indictment to include element of knowledge – where nothing in the recital of facts put before the sentencing judge made it possible to infer that the applicant had the requisite knowledge – whether applicant would suffer injustice as result of amendment – plea of guilty set aside

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant Black convicted on pleas of guilty to one count of fraud, one count of fraudulently falsifying a record, one count of forgery and one count of uttering – where applicant sentenced to five years imprisonment suspended after 15 months for an operational period of four years with respect to the count of fraud and lesser concurrent terms of imprisonment on the other counts – where fraud involved dishonestly inducing the Queensland Building Services Authority to approve a building licence for a company that the applicant had effective control over – where deterrent sentence required having regard to the capacity of the applicant’s…

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.

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Details

Case: [2004] QCA 369
Decision Date: 8 October 2004

CaseChat Overview and Summary

The applicants, Stephen Glen Black and Suzanne Margaret Sutton, appealed against their respective sentences and convictions. Black appealed against a five-year suspended sentence for fraud and other related charges, while Sutton appealed against a two-year suspended sentence for fraud and making a false statement. Sutton also sought an amendment to the indictment to include the element of knowledge for the false statement charge. The court had to determine whether the amendment to the indictment was permissible and if it would cause an injustice to the applicant. The court also had to assess whether the sentences were manifestly excessive.

The court found that the amendment to the indictment was not permissible as there was no evidence to infer that Sutton had the requisite knowledge. The court also found that the amendment would cause an injustice to Sutton as it would change the nature of the offence charged. Consequently, the court set aside Sutton's plea of guilty and conviction on the count of making a false statement. The court also found that Black's sentence was not manifestly excessive as it was necessary to maintain public confidence in the building authority's ability to regulate operators in the building industry in accordance with its statutory obligations.

The court allowed Black's appeal against the sentence on count 2 and set it aside, ordering instead a sentence of three years imprisonment, suspended after 12 months for an operational period of four years. The court also granted leave to Sutton to appeal against her sentence and set aside the sentence on count 1, ordering instead a sentence of two years imprisonment, suspended forthwith for an operational period of two years. The court also set aside Sutton's plea of guilty and conviction on count 19. The court issued a warrant for Black's arrest to lie in the Registry for seven days from the date of the order.

The court's final orders were to grant leave to both applicants to appeal against their respective sentences and convictions. The court allowed Black's appeal to the extent of setting aside the sentence on count 2 and ordering a new sentence. The court also allowed Sutton's appeal, set aside her plea of guilty and conviction on count 19 and on count 1, and ordered a new sentence. The court issued a warrant for Black's arrest.

Orders

Orders of the court

1. Grant leave to Stephen Glen Black to appeal against sentence and allow the appeal to the extent only of setting aside the sentence on count 2 of five years imprisonment, suspended after 15 months for an operational period of four years and ordering instead a sentence of three years imprisonment, suspended after 12 months for an operational period of four years;

2. That a warrant issue for the arrest of Stephen Glen Black, to lie in the Registry for seven days from the date of this order;

3. Grant leave to Suzanne Margaret Sutton to appeal against sentence and allow the appeal, set aside the plea of guilty and conviction on count 19 and on count 1 set aside the sentence of two years imprisonment, suspended after three months for an operational period of three years and order instead a sentence of two years imprisonment, suspended forthwith for an operational period of two years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Black; R v Sutton [2004] QCA 369
PARTIES:	R v BLACK, Stephen Glen (applicant/appellant) R v SUTTON, Suzanne Margaret (applicant/appellant)
FILE NO/S:	CA No 195 of 2004 CA No 196 of 2004 DC No 1760 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2004
JUDGES:	McPherson and Jerrard JJA and Holmes J Joint reasons for judgment of McPherson JA and Holmes J; separate reasons of Jerrard JA, dissenting in part
ORDERS:	1. Grant leave to Stephen Glen Black to appeal against sentence and allow the appeal to the extent only of setting aside the sentence on count 2 of five years imprisonment, suspended after 15 months for an operational period of four years and ordering instead a sentence of three years imprisonment, suspended after 12 months for an operational period of four years; 2. That a warrant issue for the arrest of Stephen Glen Black, to lie in the Registry for seven days from the date of this order; 3. Grant leave to Suzanne Margaret Sutton to appeal against sentence and allow the appeal, set aside the plea of guilty and conviction on count 19 and on count 1 set aside the sentence of two years imprisonment, suspended after three months for an operational period of three years and order instead a sentence of two years imprisonment, suspended forthwith for an operational period of two years
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – GENERALLY– where applicant Sutton convicted on plea of guilty to a count charging the making of a false statement under s 193 Criminal Code - where count pleaded to omitted an element of the offence charged that element being that the applicant had knowledge of the falsity of her statement - where respondent applied to amend indictment to include element of knowledge – where nothing in the recital of facts put before the sentencing judge made it possible to infer that the applicant had the requisite knowledge – whether applicant would suffer injustice as result of amendment – plea of guilty set aside CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant Black convicted on pleas of guilty to one count of fraud, one count of fraudulently falsifying a record, one count of forgery and one count of uttering – where applicant sentenced to five years imprisonment suspended after 15 months for an operational period of four years with respect to the count of fraud and lesser concurrent terms of imprisonment on the other counts – where fraud involved dishonestly inducing the Queensland Building Services Authority to approve a building licence for a company that the applicant had effective control over – where deterrent sentence required having regard to the capacity of the applicant’s…