Gilligan v The Queen

Case [2007] NTCCA 8

Gilligan v The Queen [2007] NTCCA 08

PARTIES:GILLIGAN, DAVID MATTHEW

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 18 of 2006 (20602743)

DELIVERED:  18 JUNE 2007

HEARING DATES:  6 JUNE 2007

JUDGMENT OF:  MILDREN, RILEY & SOUTHWOOD JJ

APPEAL FROM:  DECISION OF SUPREME COURT APPLICATION 1 DECEMBER 2006

CATCHWORDS:

CRIMINAL LAW – sentencing appeal – change of plea after complainant gave evidence in chief – agreed facts – whether trial judge could take into account facts beyond the agreed facts – whether lack of procedural fairness – whether some other sentence should be imposed – appeal dismissed

Statutes:

Criminal Code (NT), s 192(3), s 411(4), s 429(2)

Citations:

Applied:

R v Ireland (1987) 49 NTR 10
Waye v R [2000] NTCCA 5

Referred to:

Altham v The Queen (1992) 62 A Crim R 126
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
FV v The Queen [2006] NSWCCA 237
GAS v The Queen (2004) 217 CLR 198
Malvaso v The Queen (1989) 168 CLR 227
Mielicki, Whitman and Poniewaz v The Queen (1994) 73 A Crim R 72
Pettingill v The Queen (1985) 21 A Crim R 130
R v Olbrich (1999) 199 CLR 270
R v Riley [1896] 1 QB 309 at 318
R v Visconti [1982] 2 NSWLR 104
Siganto (No 1) (1997) 97 A Crim R 60
Siganto (No 2) (1999) 106 A Crim R 30
The Queen v Perre (1986) 41 SASR 105
The Queen v Uzabeaga (2000) 119 A Crim R 452

Followed:

Damaso (2002) 130 A Crim R 206
Kelly v The Queen (2000) 10 NTLR 39

REPRESENTATION:

Counsel:

Applicant:P Elliott

Respondent:  J Karczewski QC

Solicitors:

Applicant:

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID number:  mil07406

Number of pages:  19

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Gilligan v The Queen [2007] NTCCA 08

No. CA 18 of 2006 (20602743)

BETWEEN:

DAVID MATTHEW GILLIGAN

Applicant

AND:

THE QUEEN

Respondent

CORAM:     MILDREN, RILEY & SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 18 June 2007)

Mildren J:

  1. I have had the opportunity of reading a draft of the reasons prepared by Riley J. I agree with orders proposed by Riley J, but I have arrived at my conclusions by a slightly different route.

    Grounds 2, 3 and 4

  2. In my opinion a discount of one year on the head sentence was entirely appropriate in the circumstances of this case having regard to the lateness of the plea, the fact that the complainant had already completed her evidence in chief and the trial had already commenced.

  3. It was submitted that a discount of 10 per cent of the head sentence inadequately reflected the applicant’s remorse and the utilitarian value of the plea. Mr Elliott’s submission concentrated on the percentage of the discount as an indication of error by the trial Judge. I…

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Gilligan v The Queen [2007] NTCCA 8
Case
[2007] NTCCA 8
Decision Date

CaseChat Overview and Summary

In *Gilligan v The Queen*, the Northern Territory Court of Criminal Appeal considered an appeal against sentence. The applicant had initially pleaded not guilty to an offence but changed his plea to guilty after the complainant had given evidence in chief. The parties then agreed on a set of facts for sentencing purposes.

The central legal issues before the Court were whether the trial judge erred in taking into account facts beyond those agreed upon by the parties when imposing sentence, and whether this constituted a lack of procedural fairness. The applicant also argued that a different sentence should have been imposed.

The Court of Criminal Appeal held that a trial judge is not bound by agreed facts when sentencing, particularly where the change of plea occurs after the complainant has given evidence. The Court reasoned that the purpose of sentencing is to impose a just penalty, and this requires the judge to have a full understanding of the circumstances of the offence. While agreed facts are helpful, they do not preclude the judge from considering other relevant information, provided that the accused is given an opportunity to respond. The Court found no lack of procedural fairness in this instance.

Consequently, the Court granted the applicant an extension of time to apply for leave to appeal and granted leave to appeal, but ultimately dismissed the appeal.

Orders

Orders of the court

1. The applicant is granted an extension of time in which to make the application for leave to appeal.

2. The applicant is granted leave to appeal.

3. The appeal is dismissed.

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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