Swoboda v Cobbo

[2017] QDC 30

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

1. 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

1. 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.

1. 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.

1. 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…