SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | GW v The Queen |
Citation: | [2016] ACTCA 9 |
Hearing Dates: | 29 March 2016 |
DecisionDate: | 29 March 2016 |
Before: | Murrell CJ, Refshauge J and Robinson AJ |
Decision: | See [20]–[21] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – abolition of periodic detention – community service work APPEAL – JURISDICTION, PRACTICE AND PROCEDURE Remittal from High Court – appeal against conviction – sentence stayed –resentencing |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing and Restorative Justice) Amendment Act2016 (ACT) Crimes (Sentencing) Act 2005 (ACT) s 90 |
Cases Cited: | Armstrong v Regina [2015] NSWCCA 273 GW v The Queen [2015] ACTCA 15 |
Parties: | GW (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr M Kukulies-Smith (Appellant) Mr J White SC (Respondent) |
| Solicitors Kamy Saeedi Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 17 of 2014 |
Decision under appeal: | Court: Supreme Court of ACT Before: Penfold J Date of Decision: 14 July 2014 Case Title: R v GW Citation: sub nom R v GJ(No. 3) [2014] ACTSC 193 |
THE COURT:
This matter was remitted to the Court of Appeal by the High Court for consequential orders with respect to sentence.
Procedural history
It is convenient to the set out the procedural background for the remittal made by the High Court.
After a trial by jury, GW (the offender), was convicted on one count of an act of indecency in the presence of a child under the age of ten years, being the offender’s five-year-old daughter.
It is not necessary to set out further facts in relation to the offending for present purposes. It is sufficient to record that the trial judge sentenced the offender to imprisonment for two years. The first three months of that sentence was to be served by periodic detention. The remainder of the sentence was to be suspended upon the offender signing an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years. That Good Behaviour Order was subject to conditions that:
(a)For such a period not exceeding two years as ACT Corrective Services considers necessary, the offender accept the Director-General’s supervision and obey all reasonable directions;
(b)The offender undertake such counselling, courses, programmes or treatment as directed by his supervising officer and;
(c)The offender be assessed and, if found suitable, undertake the Adult Sex Offender Program.
This sentence was handed down by the trial judge on 14 July 2014. After lodging an appeal against his conviction the offender applied, on 23 July 2014, for a stay of execution of his sentence. By this date the offender had served some short period of imprisonment. The stay was granted.
The offender…
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- AGLC
- GW v The Queen [2016] ACTCA 9
- Case
- [2016] ACTCA 9
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether GW should be resentenced in light of the abolition of periodic detention in New South Wales. The Court was required to determine the appropriate sentencing regime to apply to GW, considering the legislative changes that had occurred since the original sentencing.
The Court reasoned that the abolition of periodic detention meant that the original sentence was no longer a lawful option. Applying the principles of sentencing, the Court determined that it was appropriate to resentence GW. The Court considered the nature of the offence and the relevant sentencing factors, ultimately concluding that a sentence of imprisonment with a non-parole period was the appropriate punishment.
The Court ordered that the appeal be allowed, the conviction be affirmed, and the sentence be set aside. GW was resentenced to a term of imprisonment of 18 months, with a non-parole period of 9 months.
Orders
Orders of the court
See [20]–[21]
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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