DPP (Cth) v AB

Case [2006] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v AB

Judgment of The Court of Criminal Appeal

(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Layton)

24 March 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER

The respondent pleaded guilty to nine Commonwealth offences - sentenced to 3 years and 7 months imprisonment but released forthwith upon entering into a recognisance in the sum of $100 on condition that he be of good behaviour for 2 years - Crown appeal on grounds that the sentence was manifestly inadequate and that the judge erred in ordering that the respondent be released forthwith - principles relating to Crown appeals against sentence considered.

Griffiths v The Queen (1977) 137 CLR 293; Everett v The Queen (1994) 181 CLR 295, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION - GENERALLY

The trial judge fixed the sentence by coming to a preliminary sentence of 10 years and 3 months and then allowing discounts of 25 per cent for the plea of guilty and 40 per cent for assistance to authorities - held where it is practicable to do so the extent of any discount should be indicated, either as a percentage or as a reduction in the length of the sentence, in a single figure or period - the reduction of 65 per cent that was given was too great - the highest appropriate reduction wold be 40 per cent - sentence increased to 6 years and 2 months - appeal allowed.

Criminal Law (Sentencing) Act 1988 s 10(h); Crimes Act 1914 (Cth) s 16A(2)(h), referred to.
R v Golding (1980) 24 SASR 161; R v Cartwright (1989) 17 NSWLR 243; R v Nguyen (1989) 50 SASR 361; R v Perez-Vargas (1987) 8 NSWLR 559; R v Many (1990) 51 A Crim R 54; R v Downey (1997) 97 A Crim R 41; R v Heaney and Ors [1992] 2 VR 531; R v Malvaso (1989) 50 SASR 503; R v Tee (1993) 61 SASR 501; Hing v The Queen (Unreported) Court of Criminal Appeal, Western Australia, 31 May 1993; Bowie v Police (2003) 85 SASR 52; R v Harris and Simmonds (1992) 59 SASR 300; R v Gallagher (1991) 23 NSWLR 220; R v Place (2002) 81 SASR 395; R v Gallagher (1989) 44 A Crim R 256; R v Wall and Richards (Unreported) [2000] SASC 177 (Court of Criminal Appeal); R v El Hani [2004] NSW CCA 162; R v Thomson and Houlton (2000) 49 NSWLR 383; R v Kevenaar and Ors [2004] NSW CCA 210; R v Chu (Unreported) NSW CCA, 16 October…

Continue reading DPP (Cth) v AB

Sign in free to access the full text

Details
AGLC
DPP (Cth) v AB [2000] SASC 177
Case
[2006] SASC 84
Decision Date

CaseChat Overview and Summary

The case of DPP (Cth) v AB involved the respondent who had pleaded guilty to nine Commonwealth offences. The respondent was initially sentenced to a term of 3 years and 7 months imprisonment but was released immediately upon entering into a recognisance of $100, on the condition that he remain of good behaviour for 2 years. The Attorney-General, acting as the Crown, appealed against the sentence, arguing that it was manifestly inadequate and that the judge had erred in ordering the respondent's immediate release. The court was required to consider the principles relating to Crown appeals against sentence, and whether the early release order should stand given the respondent's release under the recognisance.

The legal issues before the court were whether the sentence imposed was manifestly inadequate, and if the judge erred in ordering the respondent's immediate release. The court also had to consider the implications of double jeopardy, given that the respondent had already been released under the recognisance. The court found that the sentence was indeed manifestly inadequate and that the judge had erred in ordering the respondent's immediate release. The court concluded that it would not be appropriate to allow the early release order to stand, given the circumstances of the case.

In reaching its decision, the court gave anxious consideration to the principle of double jeopardy. However, the court determined that it was not right to allow the early release order to stand. The court agreed to allow the appeal, quash the sentence and early release order, and substitute a sentence of 6 years and 2 months imprisonment, with a non-parole period of 4 years. The judges concurred with this decision and the proposed orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PERRY J
In reaching that view, I have given anxious consideration to the question whether double jeopardy considerations, particularly bearing in mind that the respondent has been released following his entry into a bond on 1 December 2005, should deflect the Court from quashing the early release order. However, in all the circumstances, I do not think that it would be right to allow the early release order to stand.Conclusion I would give leave to appeal. I would allow the appeal and make an order that the sentence under appeal, including the early release order, be quashed. I would order that in lieu thereof there be substituted a sentence of 6 years and 2 months imprisonment, with a non-parole period of 4 years. NYLAND J: I agree that leave to appeal should be given for the reasons expressed by Perry J. I also would allow the appeal. I agree with Perry J that the sentence under appeal and the early release order should be quashed and that in lieu thereof there be substituted a sentence of six years and two months imprisonment with a non-parol period of four years. LAYTON J: I have had the opportunity of reading the draft reasons of Perry J. In my view the appeal should be allowed and I agree with the orders Perry J proposes and his reasons for doing so.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

Full text does not contain this section.