R v Seiler - [2003] QCA 217

SUPREME COURT OF QUEENSLAND

CITATION: R v Seiler [2003] QCA 217
PARTIES: R
v
SEILER, Kurt Steven
(applicant/appellant)
FILE NO/S: CA No 3 of 2003
DC No 295 of 2002
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Beenleigh
DELIVERED EX 26 May 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 26 May 2003
JUDGES: McPherson JA, White and Wilson JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER: Application granted. Appeal allowed. Orders made below
set aside. Order that the applicant undergo 18 months
probation and be subject to the requirements of s 93
Penalties and Sentences Act 1992 (Qld) to which the
applicant consents; no further order about community
service; conviction not recorded.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where trial judge erred in making community service a special condition of probation order
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – OTHER INSTANCES OF INTERFERENCE – where conviction recorded – whether circumstances of offender indicated that discretion not to record conviction should be exercised
Penalties and Sentences Act 1992 (Qld), s12(2)
R v Briese [1998] 1 Qd R 487, followed
COUNSEL: A W Moynihan for the applicant D A Holliday for the respondent
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

WHITE J: The applicant for leave to appeal against sentence pleaded guilty on ex officio indictment to six counts of burglary and stealing with six counts of fraud before the District Court at Beenleigh on 13 December 2002.

He was ordered to perform 240 hours’ community service as a special condition of the two years’ probation imposed on him. A conviction was recorded. In fact 200 hours was endorsed on the indictment and the applicant has performed that service in its entirety.

It is conceded by the Crown that there was no power to make such an order. Section 109 of the Penalties & Sentences Act 1992 permits a Court to make an order for probation and a community service order, but they must be separate orders and the Court must not impose an order as a requirement of the other order.

Accordingly, the applicant falls to be resentenced by this Court. The applicant does not resist orders that he undergo probation or that he perform community service, but he does seek to have no recording of conviction.

The applicant was born on 27 May 1983. He was 18 when the offences were committed over a one month period in March/April 2002 which involved theft from his home. He had no previous convictions.

Just prior to his offending behaviour, the applicant had been living with his father and sister in his sister’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.

Continue reading R v Seiler

Details

AGLC: R v Seiler [2003] QCA 217
Case: [2003] QCA 217
Decision Date: 26/05/2003

CaseChat Overview and Summary

The case of R v Seiler involved an appeal against a sentence imposed by the trial judge. The applicant, Seiler, was convicted of an offence and sentenced to a period of probation with a special condition requiring him to undertake community service. Seiler sought to appeal the sentence on the basis that the trial judge had erred in making community service a special condition of the probation order. The appeal was heard by the court, which was required to determine whether the trial judge's decision to include community service as a special condition of the probation order was legally sound. The court considered whether the trial judge had the authority to impose such a condition and whether the condition was appropriate in the circumstances of the case.

The court held that the trial judge had erred in making community service a special condition of the probation order. The court found that the trial judge did not have the authority to impose such a condition and that the condition was not appropriate in the circumstances of the case. The court noted that community service is not a permissible condition of probation under the relevant legislation and that the trial judge had exceeded their powers in imposing such a condition. The court further found that the condition was not appropriate because it was not reasonably necessary for the purposes of rehabilitation, denunciation, or deterrence.

As a result of the court's decision, the appeal was allowed and the orders made by the trial judge were set aside. The court made new orders that the applicant undergo 18 months probation and be subject to the requirements of section 93 of the Penalties and Sentences Act 1992 (Qld) to which the applicant consented. The court also made an order that no further order about community service be made and that the conviction not be recorded. The applicant's appeal was therefore successful, and the sentence imposed by the trial judge was modified in accordance with the court's decision.

Orders

Orders of the court

Application granted. Appeal allowed. Orders made below

set aside. Order that the applicant undergo 18 months

probation and be subject to the requirements of s 93

Penalties and Sentences Act 1992 (Qld) to which the

applicant consents; no further order about community

service; conviction not recorded.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Seiler [2003] QCA 217
PARTIES:	R v SEILER, Kurt Steven (applicant/appellant)
FILE NO/S:	CA No 3 of 2003 DC No 295 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX	26 May 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2003
JUDGES:	McPherson JA, White and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application granted. Appeal allowed. Orders made below set aside. Order that the applicant undergo 18 months probation and be subject to the requirements of s 93 Penalties and Sentences Act 1992 (Qld) to which the applicant consents; no further order about community service; conviction not recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where trial judge erred in making community service a special condition of probation order
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – OTHER INSTANCES OF INTERFERENCE – where conviction recorded – whether circumstances of offender indicated that discretion not to record conviction should be exercised
Penalties and Sentences Act 1992 (Qld), s12(2) R v Briese [1998] 1 Qd R 487, followed
COUNSEL:	A W Moynihan for the applicant D A Holliday for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent