SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Gillard v The Queen |
Citation: | [2016] ACTCA 50 |
Hearing Date: | 7 August 2015 |
DecisionDate: | 30 September 2016 |
Before: | Refshauge ACJ, Penfold and North JJ |
Decision: | 1. The appeal will be upheld. 2. The convictions for offences of committing an act of indecency in January 1999, committing an act of indecency on a person under the age of 16 years in January 1996, engaging in sexual intercourse without consent on 5 January 2000 and attempting to engage in sexual intercourse with a person under the age of 16 years in January 1996 be confirmed. 3. The sentences for those offences be set aside and in lieu Michael Alan Gillard be sentenced as follows: a. For the offence of committing an act of indecency in January 1999, he be sentenced to imprisonment for five months to commence on 2 September 2013; b. For the offence of engaging in sexual intercourse without consent on 5 January 2000, he is sentenced to imprisonment for three years and eight months to commence on 2 December 2012; c. For the offence of committing an act of indecency on a person under the age of 16 years, he is sentence to imprisonment for 12 months to commence on 2 February 2016; and d. For the offence of attempting to engage in sexual intercourse with a person under the age of 16 years, he is sentenced to imprisonment for four years to commence on 2 February 2017. 4. The adjustment made to the commencement of the sentence imposed by Higgins CJ for the offence of possession of child pornography of three months imprisonment to be 2 June 2013 be confirmed. 5. A non-parole period of five years and three months be set to commence on 2 December 2011 and to expire on 1 March 2017. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentences – sexual offences – principle of restraint in re-sentencing following successful appeal against conviction – whether sentence manifestly excessive – whether primary judge erred in accumulation of sentences – whether “crushing” sentence amounts to error – whether discount provided for plea of guilty – impact of delay in finalisation of proceedings on appellant’s eligibility for parole – discretion to re‑sentence following finding of specific error – appeal upheld – appellant re-sentenced. |
Cases Cited: | AB v The Queen [1999] HCA 46; 198 CLR 111 Allred v The Queen [2015] ACTCA 21; 10 ACTLR 325 |
Parties: | Michael Alan Gillard (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr T Game SC (Appellant) Mr J White… |
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- AGLC
- Gillard v The Queen [2016] ACTCA 50
- Case
- [2016] ACTCA 50
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the sentences imposed were manifestly excessive, whether the primary judge erred in accumulating the sentences, and whether the cumulative effect of the sentences amounted to a "crushing" sentence that constituted an error. The Court also considered the impact of delay on the appellant's parole eligibility and the principles governing re-sentencing following a successful appeal against conviction.
The Court of Appeal upheld the appeal, finding that the original sentencing had involved an error. While confirming the convictions for the offences, the Court set aside the original sentences. In re-sentencing, the Court applied principles of restraint, particularly in the context of a successful appeal against conviction, and considered the appropriate discount for a plea of guilty. The Court also took into account the impact of the delay in the finalisation of proceedings on the appellant's eligibility for parole. The Court of Appeal re-sentenced the appellant, imposing a series of determinate sentences for the offences, with specific commencement dates, and set a non-parole period.
Orders
Orders of the court
1. The appeal will be upheld.
2. The convictions for offences of committing an act of indecency in January 1999, committing an act of indecency on a person under the age of 16 years in January 1996, engaging in sexual intercourse without consent on 5 January 2000 and attempting to engage in sexual intercourse with a person under the age of 16 years in January 1996 be confirmed.
3. The sentences for those offences be set aside and in lieu Michael Alan Gillard be sentenced as follows:
a. For the offence of committing an act of indecency in January 1999, he be sentenced to imprisonment for five months to commence on 2 September 2013;
b. For the offence of engaging in sexual intercourse without consent on 5 January 2000, he is sentenced to imprisonment for three years and eight months to commence on 2 December 2012;
c. For the offence of committing an act of indecency on a person under the age of 16 years, he is sentence to imprisonment for 12 months to commence on 2 February 2016; and
d. For the offence of attempting to engage in sexual intercourse with a person under the age of 16 years, he is sentenced to imprisonment for four years to commence on 2 February 2017.
4. The adjustment made to the commencement of the sentence imposed by Higgins CJ for the offence of possession of child pornography of three months imprisonment to be 2 June 2013 be confirmed.
5. A non-parole period of five years and three months be set to commence on 2 December 2011 and to expire on 1 March 2017.
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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