David Muir v The Queen

[2003] ACTCA 2

David Muir v The Queen [2003] ACTCA 2 (10 February 2003)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 61-2001
No. SCA 8 of 2002

Judges:         Higgins CJ, Crispin P and Madgwick J
Court of Appeal of the Australian Capital Territory
Date:            10 February 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 61 - 2001
  )          No. SCA 8 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID MUIR

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  10 February 2003
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed

IN THE SUPREME COURT OF THE       )          No. ACTCA 61 - 2002
  )          No. SCA 8 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID MUIR

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  10 February 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

HIGGINS CJ:

1. The Court has come to a concluded view about the disposition of the appeal. For my part, I will simply state shortly, that it seems to me that, in the circumstances in which this sentencing process was carried out, it is unlikely that s 16G (Crimes Act 1914 (Cth)) was not given effect to by his Honour and if it were necessary to come to a positive finding about it, I am satisfied that it was taken into account in fixing the sentence, in the sense that, of course, any adjustment that needed to be made to the sentence for any remissions or reductions in sentence was given effect to.

1. The onus, of course, is on the appellant to establish that there was error and I am not satisfied that any error existed. I would say too that the sentence imposed does not appear, even when I am consciously taking section 16G into account for my part, to be manifestly erroneous and I would therefore dismiss the appeal.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:     24 February 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 61 - 2002
  )          No. SCA 8 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID MUIR

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  10 February 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

CRISPIN P

1. I agree that the appeal should be dismissed for the reasons advanced by the Chief Justice and I have nothing to add.

I certify that the preceding paragraph numbered three (3) is a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date:   24 February 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 61 - 2002
  )          No. SCA 8 of 2002
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID MUIR

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Crispin P and Madgwick J
Date:  10 February 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

MADGWICK J

1. I do think it very likely that in fact his Honour did take s 16G into account. Not only was the matter adverted to by counsel in submission, but as the transcript makes clear, his Honour had an active interest in the point and a degree of Australia-wide knowledge of sentencing practice and a degree of mild reproof of the Crown on one aspect that makes it clear that it was a matter very present to his mind during the hearing.

1. He had a written note from counsel for the Crown about the point that must have brought it back to him when he came to prepare his remarks on sentence.  Further, the remarks on sentence were, in their nature, principally responsive to differences in approach or emphasis between the parties.

1. In any event, for myself, I go a bit further than my brethren. It seems to me that is is impossible to say that a proper application of section 16G to these very serious instances of repeated white collar crime could produce a result of a non-parole period of less than three years and six months or total head sentences of less than seven and a half years. And for those reasons I too would dismiss the appeal.

I certify that the preceding paragraphs numbered four (4) to six (6) are a true copy of the Reasons for Judgment herein of his Honour, Justice Madgwick.

Associate:

Date:     24 February 2003

Counsel for the Appellant:  Mr J Purnell SC

Solicitor for the Appellant:  Baker Deane & Nutt

Counsel for the Respondent:  Mr J White

Solicitor for the Respondent:  Commonwealth Director of Public Prosecutions

Date of hearing:  10 February 2003

Date of judgment:  10 February 2003