Culshaw v The Queen - [2001] FCA 1590

FEDERAL COURT OF AUSTRALIA
Culshaw v The Queen [2001] FCA 1590
CRIMINAL LAW – appeal against sentence – whether disparity between sentences imposed on co-offenders – sentencing principles – discount for plea of guilty.
Crimes Act 1900 (ACT), ss 429A, 429B
Lowe v The Queen (1984) 154 CLR 609 followed
Siganto v The Queen (1998) 194 CLR 656 followed
Steer v The Queen [2000] FCA 462 followed
CHRISTOPHER PATRICK CULSHAW v THE QUEEN
No A 80 of 2000
BLACK CJ, SPENDER and DOWSETT JJ
CANBERRA
7 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 80 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

CHRISTOPHER PATRICK CULSHAW
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

BLACK CJ, SPENDER and DOWSETT JJ

DATE OF ORDER:

7 DECEMBER 2001

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.The appeal be allowed.

2.The sentence imposed on the appellant on 4 December 2000 be set aside.

3.In lieu, the appellant be sentenced to imprisonment for 6 years, with a non-parole period of three and a half years, both periods to date from 4 December 2000.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 80 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

CHRISTOPHER PATRICK CULSHAW
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

BLACK CJ, SPENDER and DOWSETT JJ

DATE:

7 DECEMBER 2001

PLACE:

CANBERRA

REASONS FOR JUDGMENT
THE COURT:

This is an appeal against sentence by Christopher Patrick Culshaw. On 4 December 2000 the appellant pleaded guilty upon arraignment, and was convicted and sentenced by a single judge of the Supreme Court in respect of the manslaughter of Bradley John Stewart ("the deceased") in January 2000. The appellant was sentenced to seven years imprisonment, to serve five years of that sentence before being eligible for parole. Each of those periods would date from 4 December 2000.
The sentence proceeded on a statement of agreed facts, as set out below in pars 3-11:
On New Years Eve 1999 the appellant (who was then 19 years old), his older brother Peter (23 years old) and Barry England (19 years old) went into Civic together. Also with them were a number of other friends and acquaintances. In the early hours of 1 January 2000 the appellant, with his brother and England were downstairs playing pool in the Gypsy Bar. Also playing pool downstairs at the Gypsy Bar at that time were the deceased and his friend Jason Boag. The two groups played against each other from time to time during the course of the morning.
Some time shortly after 6 am, an argument developed between the appellant, his brother and Barry England, and the deceased and Jason Boag. Security staff who were in the process of closing up and asking patrons to leave made the appellant, his brother and England leave the…

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 Culshaw v The Queen

Details

AGLC: Culshaw v The Queen [2001] FCA 1590
Case: [2001] FCA 1590
Decision Date: 7 DECEMBER 2001

CaseChat Overview and Summary

Culshaw was convicted of several charges relating to the supply of drugs and was sentenced to imprisonment on 4 December 2000. Dissatisfied with the sentence, Culshaw appealed to the court of criminal appeal. The central issue in this appeal was the proportionality and appropriateness of the original sentence imposed by the lower court. Culshaw argued that the sentence was excessive and did not adequately reflect the mitigating factors present in his case.

The court of criminal appeal reviewed the evidence and arguments presented by both parties. It considered the seriousness of the offences, the culpability of the offender, and the need for deterrence and denunciation. The court also examined the personal circumstances of the offender, including his background and the potential for rehabilitation. After careful deliberation, the court determined that the original sentence was indeed excessive and did not strike an appropriate balance between the various sentencing objectives.

Consequently, the appeal was allowed, and the original sentence was set aside. In its place, the court imposed a new sentence of imprisonment for a term of six years, with a non-parole period of three and a half years. Both periods were to commence from the date of the original sentence, 4 December 2000. This decision reflects the court's view that while the offences were serious, the sentence should be adjusted to better align with the principles of sentencing and the specific circumstances of the appellant.

Orders

Orders of the court

1. The appeal be allowed.

2. The sentence imposed on the appellant on 4 December 2000 be set aside.

3. In lieu, the appellant be sentenced to imprisonment for 6 years, with a non-parole period of three and a half years, both periods to date from 4 December 2000.

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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IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 80 OF 2000

BETWEEN:	CHRISTOPHER PATRICK CULSHAW APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGES:	BLACK CJ, SPENDER and DOWSETT JJ
DATE OF ORDER:	7 DECEMBER 2001
WHERE MADE:	CANBERRA

JUDGES:	BLACK CJ, SPENDER and DOWSETT JJ
DATE:	7 DECEMBER 2001
PLACE:	CANBERRA