Forster-Jones v The Queen

[2020] ACTCA 31

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Forster-Jones v The Queen

Citation:

[2020] ACTCA 31

Hearing Date:

19 May 2020

DecisionDate:

5 June 2020

Before:

Murrell CJ, Crowe and Berman AJJ

Decision:

See [80]

Catchwords:

APPEAL – CRIMINAL LAW – Appeal against sentence – where the Crown concedes that an error occurred – where the sentencing judge did not assess the objective seriousness – resentence

Legislation Cited:

Crimes (Sentencing) Act2005 (ACT), s 35A

Cases Cited:

GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198

Kentwell v The Queen [2014] HCA 37; 252 CLR 601
McLeod v The Queen [2018] ACTCA 59
Petkos v The Queen [2020] NSWCCA 55
Postiglione v The Queen (1997) 189 CLR 295
R v Cage [2006] NSWCCA 304
R v Campbell [2014] NSWCCA 102
R v Forster-Jones (No 2) [2019] ACTSC 286
R v Knight [2005] NSWCCA 253; 155 A Crim R 252
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Van Ryn [2016] NSWCCA 1
Re Attorney General’s Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; NSWLR 327
Royall v The Queen (1991) CLR 378

The Queen v Crabbe (1985) 156 CLR 464

Parties:

Peter Forster-Jones (Appellant)

The Queen (Respondent)

Commissioner of the Australian Federal Police (Intervener)

Representation:

Counsel

K Archer (Appellant)

S Drumgold SC (Respondent)

A Berger (Intervener)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

Australian Government Solicitor (Intervener)

File Number:

ACTCA 48 of 2019

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Elkaim J

Date of Decision:          15 October 2019

Case Title:  R v Forster-Jones (No 2)

Citation: [2019] ACTSC 286

THE COURT:

Introduction

1. On 15 October 2019 the appellant in this matter, Peter Forster-Jones, appeared for sentence before Elkaim J, having earlier pleaded guilty to a significant number of serious offences: see R v Forster-Jones (No 2) [2019] ACTSC 286 (Forster-Jones (No 2)). Those serious offences included one of murder, the appellant having killed a man by the name of Eden Waugh. His Honour sentenced the appellant to imprisonment for a total of 40 years, five months and 23 days, with a non-parole period of 25 years.

1. The appellant now appeals against the sentence imposed.  The Crown concedes that the sentencing judge erred in a particular respect. We accept the appropriateness of that concession and will explain why later in this judgment. It thus becomes the task of this court to resentence the appellant.

Facts

1. The offences committed by the appellant occurred on two separate days, being 22 September 2016 and 3 November 2016.

1. Mr Waugh and his partner, Ms Marion Barr, lived in a home unit on the third floor of a block of units in Watson, ACT. They were both involved in selling heroin and methylamphetamine from their…