R v Lister - [2009] QCA 368

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lister [2009] QCA 368

PARTIES:

R
v
LISTER, Susan Beryl
(applicant)

FILE NO/S:

CA No 233 of 2009
DC No 2118 of 2009
DC No 3091 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2009

JUDGES:

Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Leave to amend grounds of appeal granted.

2. Application for leave to appeal against sentence dismissed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of unlawful deprivation of personal liberty and two counts of common assault – where applicant was a carer in a care facility and complainants were children with disabilities – where applicant sentenced to 150 hours community service and convictions were recorded – where applicant argued that the recording of convictions rendered the sentence manifestly excessive – where applicant argued that the recording of convictions would prevent her from obtaining a travel visa or ‘blue card’ in the future – whether sentencing judge gave adequate consideration to the matters in s 12 Penalties and Sentences Act 1992 (Qld) – whether sentencing judge erred in failing to exercise the discretion not to record convictions – whether sentence manifestly excessive

Commission for Children and Young People and Child Guardian Act 2000 (Qld)

Penalties and Sentences Act 1992 (Qld), s 12

COUNSEL:

B W Farr SC for the applicant
M B Lehane for the respondent

SOLICITORS:

Ryan & Bosscher for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I'll ask Justice Fraser to give the first reasons.

FRASER JA: On 4 September 2009, the applicant was found guilty by a jury after a five day trial in the District Court and convicted of one offence of unlawful deprivation of personal liberty and two offences of common assault.

The trial Judge ordered that convictions were recorded and that the applicant perform unpaid community services for 150 hours.

The applicant has applied for leave to appeal on the ground that the judge erred in exercising his discretion to record convictions.

At the hearing of the application, the applicant sought leave to add another ground that in recording the convictions, the judge erred by failing to give any, or any adequate attention to the provisions of s 12 of the Penalties and Sentences Act 1992 (Qld). I would allow that amendment, which was not opposed by the respondent.

The applicant committed the offences in the course of her employment as a carer at a care facility on Bribie Island. The complainant in counts 1 and 2 was a young boy aged between about six and nine years at the time, who suffered severe autism and was susceptible to…

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 R v Lister

Details

AGLC: R v Lister [2009] QCA 368
Case: [2009] QCA 368
Decision Date: 3 December 2009

CaseChat Overview and Summary

The applicant, Lister, was convicted of one count of unlawful deprivation of personal liberty and two counts of common assault. The victims were children with disabilities in a care facility where Lister was employed as a carer. Following her conviction, Lister was sentenced to 150 hours of community service, and the court recorded her convictions. Lister appealed against the sentence, arguing that the recording of her convictions rendered the sentence manifestly excessive, and that it would prevent her from obtaining a travel visa or a 'blue card' in the future. The appeal centred on whether the sentencing judge had given adequate consideration to the matters outlined in section 12 of the Penalties and Sentences Act 1992 (Qld), and whether there was an error in failing to exercise the discretion not to record the convictions.

The court examined whether the sentence was manifestly excessive or inadequate, and if the sentencing judge erred in not exercising the discretion to not record the convictions. Lister argued that the recording of her convictions would have a significant adverse impact on her ability to obtain a travel visa and a 'blue card', which are crucial for her future employment prospects. The court had to consider the nature and circumstances of the offences, Lister's background and offending history, and the objectives and purposes of sentencing under the relevant legislation. The court assessed whether the sentence was appropriate in all the circumstances and whether the sentencing judge had adequately considered the factors relevant to the exercise of the discretion not to record the convictions.

The court found that the sentencing judge had adequately considered the relevant matters, including the impact of recording the convictions on Lister's future employment prospects. The court held that the sentence was not manifestly excessive or inadequate and that there was no error in the sentencing judge's exercise of the discretion to record the convictions. The appeal against the sentence was dismissed, and the application for leave to amend the grounds of appeal was granted. Consequently, Lister's appeal against her sentence was unsuccessful, and the original sentence and recording of convictions were upheld.

Orders

Orders of the court

1. Leave to amend grounds of appeal granted.

2. Application for leave to appeal against sentence dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Lister [2009] QCA 368
PARTIES:	R v LISTER, Susan Beryl (applicant)
FILE NO/S:	CA No 233 of 2009 DC No 2118 of 2009 DC No 3091 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	3 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 December 2009
JUDGES:	Holmes and Fraser JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to amend grounds of appeal granted. 2. Application for leave to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of unlawful deprivation of personal liberty and two counts of common assault – where applicant was a carer in a care facility and complainants were children with disabilities – where applicant sentenced to 150 hours community service and convictions were recorded – where applicant argued that the recording of convictions rendered the sentence manifestly excessive – where applicant argued that the recording of convictions would prevent her from obtaining a travel visa or ‘blue card’ in the future – whether sentencing judge gave adequate consideration to the matters in s 12 Penalties and Sentences Act 1992 (Qld) – whether sentencing judge erred in failing to exercise the discretion not to record convictions – whether sentence manifestly excessive Commission for Children and Young People and Child Guardian Act 2000 (Qld) Penalties and Sentences Act 1992 (Qld), s 12
COUNSEL:	B W Farr SC for the applicant M B Lehane for the respondent
SOLICITORS:	Ryan & Bosscher for the applicant Director of Public Prosecutions (Queensland) for the respondent