DISTRICT COURT OF QUEENSLAND
CITATION:
Swoboda v Cobbo [2017] QDC 30
PARTIES:
JOHN ERIC SWOBODA
(appellant)v
LETISCHA COBBO
(respondent)FILE NO/S:
D1713/16
DIVISION:
Appellate
PROCEEDING:
Appeal pursuant to s 222 of the Justices Act 1886
ORIGINATING COURT:
Magistrates Court, Brisbane
DELIVERED ON:
8 February 2017
DELIVERED AT:
District Court at Brisbane
HEARING DATE:
28 October 2016
JUDGE:
Judge Terry Martin SC
ORDER:
1. The appeal is allowed.
2. The order of the magistrate that the respondent be subject to probation for a period of 3 years is set aside.
3. Instead, the respondent is convicted and sentenced to 2 years imprisonment, but by order I direct that the respondent be released forthwith upon the respondent giving security by recognisance in the sum of $2,000 conditioned that:
(a) the respondent be of good behaviour for a period of 2 years; and
(b) the respondent will during a period of 2 years be subject to the supervision of a probation officer.
4. This sentence runs from today.
5. The order for reparation made by the magistrate is confirmed.
CATCHWORDS:
CRIMINAL LAW - APPEAL AGAINST SENTENCE - PUNISHMENT INADEQUATE - RESIDUAL DISCRETION - where respondent fraudulently claimed social security payments amounting to $54, 638 – where respondent had no criminal history and good antecedents – where guilty plea entered – where sentenced to three years probation – whether errors made in the exercise of the sentencing discretion – whether sentence imposed was inadequate
COUNSEL:
Mr J Noud for the appellant
Mr M Byrne QC for the respondent
SOLICITORS:
Office of the Director of Public Prosecutions (Cth) for the appellant
Kilroy & Callaghan Lawyers for the respondent
This is an appeal pursuant to s 222 of the Justices Act 1886. Upon a plea of guilty on 28 April 2016 in the Magistrates Court Brisbane, the respondent was convicted of one count of obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code (Cth). By applying s 20AB (1AA)(a)(ii) of the Crimes Act, she was sentenced to three years probation, with two special conditions relating to psychological treatment and financial counselling. A conviction was recorded. She was ordered to make reparation in the amount of $52,999.50.
Re-hearing
Pursuant to s 223 of the Justices Act, subject to leave being given to adduce additional evidence, an appeal under s 222 is by way of re-hearing on the evidence given in the proceeding before the magistrate.
In an appeal by way of re-hearing, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…”[1]
[1]Allesch v Maunz [2000] 203 CLR 172 at 180.
In House v The King, the majority judgment referred to the manner in which an appeal against an exercise of discretion should be determined:
“…It is not enough that the…
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- AGLC
- Swoboda v Cobbo [2017] QDC 30
- Case
- [2017] QDC 30
- Decision Date
CaseChat Overview and Summary
The court held that the appeal should be allowed and that the sentence imposed by the magistrate was manifestly inadequate. The court held that the magistrate had failed to take into account all relevant considerations in imposing the sentence. The court held that the sentence imposed did not reflect the seriousness of the offence and the appellant's culpability. The court held that the appellant's conduct was dishonest and had caused significant financial loss to the Commonwealth. The court held that the appellant's culpability was high because the appellant had deliberately and repeatedly engaged in dishonest conduct over a significant period of time. The court held that the sentence imposed was manifestly inadequate because it did not reflect the seriousness of the offence and the appellant's culpability.
The court set aside the order of the magistrate that the appellant be subject to probation for a period of three years. Instead, the court convicted and sentenced the appellant to two years imprisonment, but directed that the appellant be released forthwith upon the appellant giving security by recognisance in the sum of $2,000 conditioned that the appellant be of good behaviour for a period of two years and be subject to the supervision of a probation officer. The court confirmed the order for reparation made by the magistrate. The sentence runs from the date of the court's order.
Orders
Orders of the court
1. The appeal is allowed.
2. The order of the magistrate that the respondent be subject to probation for a period of 3 years is set aside.
3. Instead, the respondent is convicted and sentenced to 2 years imprisonment, but by order I direct that the respondent be released forthwith upon the respondent giving security by recognisance in the sum of $2,000 conditioned that:
(a) the respondent be of good behaviour for a period of 2 years; and
(b) the respondent will during a period of 2 years be subject to the supervision of a probation officer.
4. This sentence runs from today.
5. The order for reparation made by the magistrate is confirmed.
Background
Background to the litigation
Full text does not contain this section.
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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