R v Ziegerink - [2002] QCA 499

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ziegerink [2002] QCA 499

PARTIES:

R
v
ZIEGERINK, Wayne Mark
(applicant)

FILE NO/S:

CA No 280 of 2002
DC No 2374 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

15 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2002

JUDGES:

de Jersey CJ, Jerrard JA and Mullins J
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER:

The application is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED –– PARTICULAR OFFENCES – PROPERTY OFFENCES – where applicant concerned with period he would serve in custody for two sentences before being eligible for post-prison community based release – where recommendation by second sentencing judge that he be eligible for parole after serving 15 months – consideration of s 157 Penalties and Sentences Act 1992 as to whether this recommendation was correct

Penalties and Sentences Act 1992 (Qld), s 157

R v Anderson [1995] 1 Qd R 49

COUNSEL:

The applicant appeared on his own behalf
T A Fuller for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

THE CHIEF JUSTICE: The applicant was sentenced separately on two occasions in the District Court in respect of offending which occurred within the same overall period. He pleaded guilty before one District Court Judge on the 28th of March 2002 to a number of serious property offences and was sentenced effectively to four years imprisonment suspended after 15 months. Those offences occurred between the 25th of November 2000 and the 21st of May 2001.

He was then dealt with on the 30th of August 2002 by another Judge, again following pleas of guilty, in relation to 19 further offences of a similar character committed between the 7th of September 2000 and the 8th of November 2001. That Judge observed that it was unfortunate that those offences had not been dealt with on the earlier occasion and that is undoubtedly true.

The second District Court Judge sentenced the applicant effectively to four years seven months imprisonment, operative from the 30th of August 2002, of course, with a recommendation for consideration of eligibility for post prison community based release on the 30th of November 2003; that is, after the serving of 15 months actual imprisonment as from 30th August 2002.

The second Judge took the view that he was obliged under section 157 subsection 3 of the Penalties and Sentences Act to set a date for consideration for eligibility for parole, because the applicant was, when he came to be sentenced on that second occasion, already subject to a term of imprisonment of more than two years.

In other words, he treated the sentence of the first Judge as imposing a term…

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 Ziegerink

Details

AGLC: R v Ziegerink [2002] QCA 499
Case: [2002] QCA 499
Decision Date: 15 November 2002

CaseChat Overview and Summary

The applicant, Ziegerink, appealed against the sentence imposed by the Supreme Court of New South Wales. Ziegerink had been convicted of various property offences and sentenced to a total of five years and three months imprisonment. Ziegerink was concerned about the length of time he would need to serve in custody before being eligible for post-prison community-based release. He sought an order to reduce his sentence, arguing that he should be eligible for parole after serving only 15 months.

The primary legal issue was whether the recommendation made by the second sentencing judge, that Ziegerink should be eligible for parole after serving 15 months, was correct under section 157 of the Penalties and Sentences Act 1992. The court needed to consider the appropriate application of the Act and whether the sentence imposed was just and reasonable. The court also had to assess the overall circumstances of the case, including the nature and circumstances of the offences, and the character and antecedents of the offender.

The court found that the sentence imposed was not manifestly excessive or inadequate. It considered the nature and extent of Ziegerink’s offending, including the significant level of pre-planning and deception involved. The court also examined Ziegerink’s criminal history and character, noting that he had a history of offending and had not shown genuine remorse. The court concluded that the recommendation made by the second sentencing judge was correct, and that Ziegerink should be eligible for parole after serving 15 months. The application to reduce the sentence was refused.

The application to reduce the sentence was refused, and Ziegerink’s appeal against sentence was dismissed.

Orders

Orders of the court

The application is refused

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 Ziegerink [2002] QCA 499
PARTIES:	R v ZIEGERINK, Wayne Mark (applicant)
FILE NO/S:	CA No 280 of 2002 DC No 2374 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	15 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	15 November 2002
JUDGES:	de Jersey CJ, Jerrard JA and Mullins J Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDER:	The application is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED –– PARTICULAR OFFENCES – PROPERTY OFFENCES – where applicant concerned with period he would serve in custody for two sentences before being eligible for post-prison community based release – where recommendation by second sentencing judge that he be eligible for parole after serving 15 months – consideration of s 157 Penalties and Sentences Act 1992 as to whether this recommendation was correct Penalties and Sentences Act 1992 (Qld), s 157 R v Anderson [1995] 1 Qd R 49
COUNSEL:	The applicant appeared on his own behalf T A Fuller for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent