R v Sysel [2000] QCA 233

Court of Appeal (Qld)|2000-06-16|Before: Pincus, JA, Chesterman and Dutney JJ, Judgment of the Court

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.

[2] 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.

[3] 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").

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

Magistrates Court Breaches of domestic (1) 3 months suspended

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[5] 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.

[6] 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 [1998] QCA 61; [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.

[7] 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] HCA 55; (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:

(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.

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