R v Sysel - [2000] QCA 233

SUPREME COURT OF QUEENSLAND

CITATION: R v Sysel [2000] QCA 233

PARTIES: R
v
SYSEL, Hana
(applicant/appellant)

FILE NO/S: CA No 8 of 2000
DC No 159 of 1999

DIVISION: Court of Appeal

PROCEEDING: Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:
District Court at Southport

DELIVERED ON: 16 June 2000

DELIVERED AT: Brisbane

HEARING DATE: 31 May 2000

JUDGES: Pincus JA, Chesterman and Dutney JJ
Judgment of the Court

ORDER:
1.    Application for leave to appeal granted.

2.    Appeal allowed by:

(i) setting aside the order of 19 February 1999 requiring that the 3 months suspended sentence imposed on 27 January 1999 be served;

(ii)    setting aside the 2 months suspended sentence imposed on 19 February 1999;

(iii)    setting aside the sentence of 6 months imprisonment suspended after 3 months imposed on 19 February 1999 and substituting a sentence of 3 months imprisonment.

3.    The order for costs made in the District Court in Appeal No 159 of 1999 is set aside.

4.Subject to the variations set out above, the District Court's order made on 15 December 1999 dismissing Appeal No 159 of 1999 to that Court is upheld.

CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – ILLEGALITY OF SENTENCES – PARTICULAR CASES – applicant given suspended sentences in Magistrates Court – appeal to District Court resulted in probation order being substituted for one suspended sentence – whether conflicted with scheme for probation orders in s 92 Penalties and Sentences Act 1992

Penalties and Sentences Act 1992 s 4, s 92

Hughes [1999] 1 Qd R 389, mentioned

Hughes [2000] QCA 16; CA No 306 of 1999, 11 February 2000, mentioned

Jenkins [1999] QCA 447; CA No 148 of 1999, 27 October 1999, mentioned

Neal (1982) 149 CLR 305, considered

COUNSEL: No appearance for the applicant/appellant
N V Weston for the respondent

SOLICITORS: No appearance for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: This is an application for leave to appeal from a judgment of the District Court on appeal from the Magistrates Court. Under s 118 of the District Court Act 1967, leave to appeal is necessary.

The learned District Court judge had to deal with an appeal relating to a number of sentences, as explained below. His Honour allowed the applicant's appeal in respect of one sentence but dismissed it as to the rest.

When the matter came before this Court, the applicant did not appear. An examination of the record shows that there is no reason to think that those sentences imposed in the Magistrates Court which the District Court upheld were too harsh; it is unnecessary, in the circumstances, to explain the details of the offences. Although the sentences challenged by the applicant are in substance appropriate, it is desirable to give leave to appeal, in order to determine the question of the legal validity of those sentences. The sentences upheld below appear, on the face…

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 Sysel

Details

AGLC: R v Sysel [2000] QCA 233
Case: [2000] QCA 233
Decision Date: 16 June 2000

CaseChat Overview and Summary

The case of R v Sysel involved the applicant appealing against a sentence imposed by the Magistrates Court and subsequently modified by the District Court. The applicant was initially given a series of suspended sentences by the Magistrates Court. Upon appeal to the District Court, one of the suspended sentences was replaced with a probation order. The appeal centred around the legality of the District Court's decision in light of the statutory framework outlined in the Penalties and Sentences Act 1992.

The primary legal issue the court had to address was whether the District Court's substitution of a probation order for one of the suspended sentences conflicted with the legislative scheme for probation orders as set out in section 92 of the Penalties and Sentences Act 1992. This required an examination of the statutory provisions and an assessment of whether the District Court's decision was in accordance with the prescribed legal framework.

The court found that the District Court had indeed overstepped its jurisdiction by substituting a probation order for a suspended sentence. The court held that such a substitution was inconsistent with the statutory provisions governing probation orders. Consequently, the appeal was allowed, and the court set aside the order requiring the applicant to serve the 3 months suspended sentence, the 2 months suspended sentence imposed on 19 February 1999, and the 6 months imprisonment suspended after 3 months. Instead, the court substituted a sentence of 3 months imprisonment. The court also set aside the costs order made by the District Court.

In conclusion, the court granted leave to appeal and allowed the appeal, setting aside certain sentences and substituting a new sentence. The costs order made by the District Court was also set aside. The District Court's order dismissing the appeal was upheld in all other respects.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed by:

(i) setting aside the order of 19 February 1999 requiring that the 3 months suspended sentence imposed on 27 January 1999 be served;

(ii) setting aside the 2 months suspended sentence imposed on 19 February 1999;

(iii) setting aside the sentence of 6 months imprisonment suspended after 3 months imposed on 19 February 1999 and substituting a sentence of 3 months imprisonment.

3. The order for costs made in the District Court in Appeal No 159 of 1999 is set aside.

4.Subject to the variations set out above, the District Court's order made on 15 December 1999 dismissing Appeal No 159 of 1999 to that Court is upheld.

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 Sysel [2000] QCA 233
PARTIES:	R v SYSEL, Hana (applicant/appellant)
FILE NO/S:	CA No 8 of 2000 DC No 159 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	16 June 2000
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2000
JUDGES:	Pincus JA, Chesterman and Dutney JJ Judgment of the Court
ORDER:	1. Application for leave to appeal granted. 2. Appeal allowed by: (i) setting aside the order of 19 February 1999 requiring that the 3 months suspended sentence imposed on 27 January 1999 be served; (ii) setting aside the 2 months suspended sentence imposed on 19 February 1999; (iii) setting aside the sentence of 6 months imprisonment suspended after 3 months imposed on 19 February 1999 and substituting a sentence of 3 months imprisonment. 3. The order for costs made in the District Court in Appeal No 159 of 1999 is set aside. 4.Subject to the variations set out above, the District Court's order made on 15 December 1999 dismissing Appeal No 159 of 1999 to that Court is upheld.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – ILLEGALITY OF SENTENCES – PARTICULAR CASES – applicant given suspended sentences in Magistrates Court – appeal to District Court resulted in probation order being substituted for one suspended sentence – whether conflicted with scheme for probation orders in s 92 Penalties and Sentences Act 1992 Penalties and Sentences Act 1992 s 4, s 92 Hughes [1999] 1 Qd R 389, mentioned Hughes [2000] QCA 16; CA No 306 of 1999, 11 February 2000, mentioned Jenkins [1999] QCA 447; CA No 148 of 1999, 27 October 1999, mentioned Neal (1982) 149 CLR 305, considered
COUNSEL:	No appearance for the applicant/appellant N V Weston for the respondent
SOLICITORS:	No appearance for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent