EG v The Queen - [2012] ACTCA 17

EG v THE QUEEN
[2012] ACTCA 17 (6 February 2012)

EX TEMPORE JUDGMENT

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

No. ACTCA 49 - 2010
No. SCC 206 of 2010

Judges: Higgins CJ, Refshauge and North JJ
Court of Appeal of the Australian Capital Territory
Date: 6 February 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 49 - 2010
  )          No. SCC 206 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

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

BETWEEN:EG
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Refshauge and North JJ
Date:  6 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.
The sentences imposed by Nield AJ be varied as follows:
(i)with respect to count one on the indictment, being the offence of burglary, the period of imprisonment be reduced from one year and seven months to one year;
(ii)with respect to count two on the indictment, being the offence of theft, the period of imprisonment be reduced from one year and seven months to six months, which shall be served concurrently upon count one;
(iii)with respect to count three on the indictment, being the offence of aggravated burglary, the period of imprisonment be reduced from two years and four months to 18 months, which shall be cumulative upon count one as to one year;
(iv)with respect to count four on the indictment, being the offence of theft, the period of imprisonment be reduced from one year and seven months to six months, which shall be served concurrently upon count three;
(v)with respect to count five on the indictment, being the offence of burglary, the period of imprisonment be reduced from one year and seven months to one year;
(vi)with respect to count six on the indictment, being the offence of theft, the period of imprisonment be reduced from one year and seven months to six months;
(vii)with respect to count seven on the indictment, being the offence of taking a motor vehicle without consent , the period of imprisonment be reduced from one year and seven months to six months;
(viii)counts five, six and seven on the indictment shall be served concurrently with each other and shall be cumulative upon the previous sentence to the extent of six months.
Pursuant to those variations, the total term of imprisonment shall be two years and six months dating from 3 November 2010.
The sentence be suspended as of 6 February 2012.
The non-parole period be set aside as of 6 February 2012.
The appellant enter a good behaviour order of two years as of 6 February 2012.

IN THE SUPREME COURT OF THE     )          No. ACTCA 49 - 2010
  )          No. SCC 206 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

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

BETWEEN:EG
Appellant

AND: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 EG v The Queen

Details

AGLC: EG v The Queen [2012] ACTCA 17
Case: [2012] ACTCA 17
Decision Date: February 6, 2012

CaseChat Overview and Summary

The appeal was brought by EG against The Queen before the Court of Criminal Appeal of New South Wales. The dispute concerned the severity of the sentences imposed by Nield AJ on EG for multiple offences, including burglary, theft, aggravated burglary, and taking a motor vehicle without consent.

The primary legal issue before the Court of Criminal Appeal was whether the sentences imposed by the sentencing judge were manifestly excessive, thereby warranting intervention on appeal. This involved a review of the individual sentences for each count and the cumulative and concurrent arrangements between them, as well as the overall total term of imprisonment and the setting of a non-parole period.

The Court of Criminal Appeal found that the original sentences were indeed excessive. In its reasoning, the Court applied principles of sentencing, considering the nature and gravity of the offences, the appellant's personal circumstances, and the need for proportionality in sentencing. The Court varied the sentences for each count, adjusting the periods of imprisonment and the manner in which they were to be served (concurrently or cumulatively).

As a result of these variations, the total term of imprisonment was reduced to two years and six months, dating from 3 November 2010. Furthermore, the Court ordered that the sentence be suspended as of 6 February 2012, setting aside the non-parole period and imposing a good behaviour bond of two years from that date.

Orders

Orders of the court

The appeal be upheld.

The sentences imposed by Nield AJ be varied as follows:

(i) with respect to count one on the indictment, being the offence of burglary, the period of imprisonment be reduced from one year and seven months to one year;

(ii) with respect to count two on the indictment, being the offence of theft, the period of imprisonment be reduced from one year and seven months to six months, which shall be served concurrently upon count one;

(iii) with respect to count three on the indictment, being the offence of aggravated burglary, the period of imprisonment be reduced from two years and four months to 18 months, which shall be cumulative upon count one as to one year;

(iv) with respect to count four on the indictment, being the offence of theft, the period of imprisonment be reduced from one year and seven months to six months, which shall be served concurrently upon count three;

(v) with respect to count five on the indictment, being the offence of burglary, the period of imprisonment be reduced from one year and seven months to one year;

(vi) with respect to count six on the indictment, being the offence of theft, the period of imprisonment be reduced from one year and seven months to six months;

(vii) with respect to count seven on the indictment, being the offence of taking a motor vehicle without consent , the period of imprisonment be reduced from one year and seven months to six months;

(viii) counts five, six and seven on the indictment shall be served concurrently with each other and shall be cumulative upon the previous sentence to the extent of six months.

Pursuant to those variations, the total term of imprisonment shall be two years and six months dating from 3 November 2010.

The sentence be suspended as of 6 February 2012.

The non-parole period be set aside as of 6 February 2012.

The appellant enter a good behaviour order of two years as of 6 February 2012.

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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