In v The Queen

Case [2002] FCAFC 135

FEDERAL COURT OF AUSTRALIA

IN v The Queen [2002] FCAFC 135

CRIMINAL APPEAL – appeal against penalty – whether the sentence imposed by the learned trial judge was manifestly excessive

Crimes Act 1900 (ACT) s 403

House v The King (1936) 55 CLR 499 applied
R v Tait (1979) 46 FLR 386 applied
Lowndes v R (1999) 195 CLR 665 applied
Dinsdale v The Queen (2000) 202 CLR 321 applied
The Queen v Davey (1980) 50 FLR 57 cited
Parnis v The Queen (1993) 49 FCR 304 followed
R v Letteri (Gleeson CJ, Sheller JA and Badgery-Parker J, New South Wales Court of Criminal Appeal, 18 March 1992, unreported) cited
R v Mooney (Young CJ, Lush and Jenkinson JJ, Victorian Court of Criminal Appeal, 21 June 1978, unreported) cited
Webb v O’Sullivan [1952] SASR 65 referred to
McDonald v The Queen (1994) 48 FCR 555 referred to

IN v THE QUEEN

A 68 of 2001

SPENDER, O’LOUGHLIN AND DOWSETT JJ
17 MAY 2002
CANBERRA


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORYDISTRICT REGISTRY

A 68 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

IN
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

SPENDER, O’LOUGHLIN AND DOWSETT JJ

DATE OF ORDER:

14 MAY 2002

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The head sentences of six years and three years (to be served concurrently) be confirmed, each of them to date from 27 February 2001;

3.The non-parole period of eighteen calendar months be set aside;

4.In lieu thereof, pursuant to s 403 of the Crimes Act 1900 (ACT), that the said concurrent sentences of imprisonment be suspended from, and that the appellant be released on, Friday 17 May 2002, conditional upon him giving security in the sum of $1000 self to the satisfaction of the Registrar on the following conditions:

(1)That he will be of good behaviour until 26 February 2007; and

(2)That he be under the supervision of the Director of Adult Corrective Services, or his nominee, for a period of eighteen calendar months from 17 May 2002, and that he comply with all reasonable directions of the Director, or his nominee, during that period, including any directions as to medical treatment.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORYDISTRICT REGISTRY

A 68 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

IN
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

SPENDER, O’LOUGHLIN AND DOWSETT JJ

DATE:

17 MAY 2002

PLACE:

CANBERRA

REASONS FOR JUDGMENT

THE COURT

  1. This is an appeal against penalty. As the victims of the offences to which the appellant pleaded guilty were his wife and children, the learned sentencing judge directed that his and their names be suppressed from publication, lest his wife and children suffer further distress by being identified by any publicity.  That order was appropriate…

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In v The Queen [2002] FCAFC 135
Case
[2002] FCAFC 135
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant against the sentencing order of the ACT Supreme Court. The appellant had been convicted of various criminal offences and was sentenced to concurrent terms of imprisonment of six years and three years, with a non-parole period of eighteen calendar months. The appellant appealed the sentence, arguing that the non-parole period was excessive and that the sentences should be suspended. The central issue before the court was whether the non-parole period imposed was excessive and whether the sentences should be suspended in favour of conditional release. The court found that the non-parole period was indeed excessive and that the sentences should be suspended in favour of conditional release. The court held that the imposition of a non-parole period of eighteen calendar months was excessive given the nature and circumstances of the offences and the appellant's background. The court also held that the sentences should be suspended in favour of conditional release, pursuant to section 403 of the Crimes Act 1900 (ACT). The court ordered that the sentences be suspended from, and that the appellant be released on, a specified date, conditional upon him giving security in the sum of $1000 self to the satisfaction of the Registrar on the specified conditions.

Orders

Orders of the court

1. The appeal be allowed.

2. The head sentences of six years and three years (to be served concurrently) be confirmed, each of them to date from 27 February 2001;

3. The non-parole period of eighteen calendar months be set aside;

4. In lieu thereof, pursuant to s 403 of the Crimes Act 1900 (ACT), that the said concurrent sentences of imprisonment be suspended from, and that the appellant be released on, Friday 17 May 2002, conditional upon him giving security in the sum of $1000 self to the satisfaction of the Registrar on the following conditions:

(1) That he will be of good behaviour until 26 February 2007; and

(2) That he be under the supervision of the Director of Adult Corrective Services, or his nominee, for a period of eighteen calendar months from 17 May 2002, and that he comply with all reasonable directions of the Director, or his nominee, during that period, including any directions as to medical treatment.

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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