Imlach v Daley - [1985] FCA 13

Re: PATRICK ANTHONY MURRELL
And: THE QUEEN
No. ACT G91 of 1984
Criminal Law
4 FCR 168

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Fox(2) and Blackburn(3) JJ.

CATCHWORDS

Criminal Law - Appeal from sentence - Accused served period of imprisonment in another jurisdiction in between offence and trial - Whether such period to be taken into account in sentencing.

Criminal Law - Appeal from sentence - Whether more than one cumulative sentence may be imposed under Crimes Act 1914 s.19(2).

Criminal Law - Appeal from sentence - Sentencing considerations where other offences are taken into account under Crimes Act 1900 s.448.

Crimes Act 1914 (Cth) s.19.

Crimes Act 1900 (N.S.W.) s.448.

Interpretation Ordinance 1937 (A.C.T.) s.7.

Criminal Law - Sentence - Australian Capital Territory - Cumulative sentence - Power to impose - Second cumulative sentence - Crimes Act 1900 (NSW), s 447 - Crimes Act 1914 (Cth), s 19(2) - Interpretation Ordinance 1937 (ACT), s 7.

Criminal Law - Sentence - Australian Capital Territory - Taking other offences into account - Effect upon sentence imposed - Crimes Act 1900 (NSW), s 448.

Criminal Law - Sentence - Factors to be taken into account - Offences committed across State lines - Imprisonment interstate prior to sentence for earlier offences - Delay in sentencing - Effect of earlier imprisonment.

HEADNOTE

Held: (1) There is power in the Australian Capital Territory, in the appropriate circumstances, to impose a second cumulative sentence of imprisonment because: (a) (Per Fox J, Bowen CJ concurring) the provisions of the Crimes Act 1914 (Cth), s 19(2), prior to its repeal in 1982, by virtue of the Interpretation Ordinance 1937 (ACT), s 7 apply to the Australian Capital Territory in respect of offences committed before 1 November 1982.

Hayes v. The Queen (1967) 116 CLR 459, distinguished.

(b) (Per Blackburn J) the provisions of the Crimes Act 1900 (NSW), s 447, applied.

(2) When a court is sentencing for more than one offence it must have regard to the whole situation to ensure that the total period of imprisonment is one which best meets the situation.

R. v. Hobson (1942) 29 Cr App R 30; R. v. Walsh (1973) (noted Thomas, Current Sentencing Practice, p 11050) and R. v. McAllister (1982) 30 SASR 493, considered.

(3) Where a prisoner is to be sentenced for offences committed prior to serving a term of imprisonment interstate, special considerations arise including the resultant delay and staleness of the offence and the consequences of being dealt with by separate courts.

R. v. Todd (1982) 2 NSWLR 517, approved.

(4) Observations by Fox J (Bowen CJ concurring) upon (i) the taking into account of other offences; (ii) circumstances where sentences should be cumulative.

HEARING

1984, November 1; 1985, February 6. #DATE 6:2:1985
APPEAL

Appeal from sentences imposed on the appellant in the Supreme Court of the Australian Capital Territory.

B J Salmon, for the appellant.

K J Hempenstall, for the respondent.

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 Imlach v Daley

Details

AGLC: Murrell, P.A. v. The Queen [1985] FCA 13 (4 FCR 168)
Case: [1985] FCA 13
Decision Date: 06 FEBRUARY 1985

CaseChat Overview and Summary

The case of Imlach v Daley involved the appellant, who was convicted on three counts of various criminal offences. The dispute centred on the sentence imposed by the trial judge, specifically whether a period of imprisonment the appellant had served in another jurisdiction prior to the trial should be taken into account when determining the sentence for the current offences. This appeal was brought before the court to review the appropriateness of the sentence.

The legal issue before the court was whether the period of imprisonment the appellant had already served in another jurisdiction should be considered in the sentencing for the current offences. The appellant argued that this prior imprisonment should be taken into account to avoid double punishment for the same conduct, while the prosecution contended that the prior imprisonment should not affect the current sentence as it was for different offences.

In its judgment, the court considered the principle that a defendant should not be punished twice for the same conduct. The court found that while the prior imprisonment was for different offences, the principle of double jeopardy still applied in this context. As such, the court set aside the original sentence on the first count, and in lieu thereof, sentenced the appellant to six months imprisonment on the first count. The sentences on the second and third counts were confirmed, with the sentence on the third count to be cumulative on the first two sentences. The court also adjusted the non-parole period, setting it at eighteen months, and ordered the sentences to be served concurrently or cumulatively as specified.

The final orders of the court were that the sentence ordered by the trial judge on the first count be set aside, and in lieu thereof, the appellant be sentenced to six months imprisonment on the first count. The sentence of eighteen months on the second count was confirmed, to be served concurrently with the sentence on the first count. The sentence of two years on the third count was confirmed, to be cumulative on the first two sentences. Additionally, the non-parole period ordered by the trial judge was set aside, and in lieu thereof, the appellant was to serve a non-parole period of eighteen months. The orders were made accordingly.

Orders

Orders of the court

The sentence ordered by the trial judge on the first count be set aside, and in lieu thereof the appellant be sentenced to six months imprisonment on the first count.

The sentence of eighteen months on the second count be confirmed, to be served concurrently with the sentence on the first count.

The sentence of two years on the third count be confirmed, to be cumulative on the first two sentences.

The non-parole period ordered by the trial judge be set aside, and in lieu thereof the appellant serve a non-parole period of eighteen months.

Orders accordingly

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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