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

1. 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.

1. 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. 

1. 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 of it, to conflict with the scheme of s 92 of the Penalties and Sentences Act 1992 ("the Act").

1. The following table sets out the results of the three hearings, two in the Magistrates Court and one in the District Court.

Hearing  Offence  Result

Magistrates Court        Breaches of domestic             (1)  3 months suspended

27 January 1999           violence orders  

Magistrates Court  (2)  Ordered to serve whole of

19 February 1999  suspended sentence (1)

Breach of domestic                (3)  240 hours community

violence order  service and 3 years

probation

Breach of domestic                (4)  2 months suspended

violence orders and                

wilful damage  

Serious assault  (5)  1 month;

$500 compensation

Breach of domestic                (6)  6 months, suspended

violence order  after 3 months

Obstructing police                  (7)  7 days

Serious assault  (8)  2 months;

$400 compensation

Wilful damage  (9)  14 days;

$46.60 compensation

District Court  Sentence (1) set aside;

15 December 1999  2 years probation

substituted

___________________________________________________________________

1. It will be noted that sentence (2) was not set aside in the District Court;  but since the Court set aside the suspended sentence (1), imposed on 27 January 1999, there was nothing on which the sentence imposed by order (2) could operate;  that requires clarification.  It should also be added that, although the notice of appeal to the District Court appeared to make a wider complaint, the learned District Court judge treated the appeal as one relating to sentence (6), presumably because that was the point on which the argument focused.  As a result, sentences (3) to (9) were left untouched, so that the applicant was required to serve 3 months imprisonment and 3 years probation, as well as being exposed to the possibility of activation of suspended sentences nos (4) and (6);  the former prescribed an operational period of 2 years  and the latter 3 years.  The learned District Court judge added to the 3 years probation imposed by sentence (3) a 2 year probation order;  that had no practical effect.

1. A 3 year probation order can coexist with 3 months imprisonment; that appears from s 92(1)(b) and from s 92(2) of the Act. But s 92(5) says:

"A term of imprisonment imposed under subsection (1)(b)(i) must not be suspended under Part 8".

It would be possible to construe s 92 so that an offender being sentenced for two offences on the same occasion can be ordered to serve 6 months plus probation on one and 1 year or a suspended sentence on the other. This is because the expression "term of imprisonment" has a singular definition: see s 4. However, that view of s 92 has not prevailed and it seems clear that the restrictions in the section on imposition of imprisonment concurrently with probation are treated as applicable to groups of offences dealt with on the same occasion: Hughes [1999] 1 Qd R 389, Jenkins [1999] QCA 447; CA No 148 of 1999, 27 October 1999, Hughes [2000] QCA 16; CA No 306 of 1999, 11 February 2000.

1. It follows that the imposition of the suspended sentences must be treated as prohibited by s 92(5). It is necessary to get rid of the suspensions, but in such a way as not to offend the principle of Neal (1982) 149 CLR 305. The simplest way to do this is to set aside sentences (4) and (6) and replace the latter by a sentence of 3 months imprisonment. This achieves a significant alleviation of the burden of the sentences, considered as a whole; that should be done, in our opinion, not because as a matter of substance the applicant has shown any entitlement to that alleviation, but to comply with the restrictions in s 92 of the Act. The orders we propose are:

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.