JULIE Turyn v The Queen

[2007] ACTCA 23

JULIE TURYN v THE QUEEN [2007] ACTCA 23 (7 SEPTEMBER 2007)

EX TEMPORE JUDGMENT

Crimes Act 1914 (Cth)

R v Parker [2000] ACTSC 68

R v Hinton (2002) 134 A Crim R 286

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

No. ACTCA  19-2007
No. SCC 115 of 2007

Judges:        Higgins CJ, Gray and Connolly JJ
Court of Appeal of the Australian Capital Territory
Date:           7 September 2007

IN THE SUPREME COURT OF THE     )          No. ACTCA 19-2007
  )          No. SCC 115 of 2007
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

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

BETWEEN:JULIE TURYN

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Gray and Connolly JJ
Date:  7 September 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The cross-appeal by the Crown, be dismissed. 

IN THE SUPREME COURT OF THE     )          No. ACTCA 19-2007
  )          No. SCC 115 of 2007
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

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

BETWEEN:JULIE TURYN

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Gray & Connolly JJ
Date:  7 September 2007
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. There are two issues the Crown raises in this case.  The first is as to the head sentence.  In my view, it is difficult for the Crown to sustain a submission that the head sentence is manifestly inadequate when the cases upon which reliance is placed, even allowing for the fact that each of them was a case where a plea of guilty had been entered, is not beyond the range which those sentences would seem to indicate insofar, of course, as that is a prescriptive consideration. 

1. For example, in R v Parker [2000] ACTSC 68 the head sentence and the circumstances were not completely dissimilar from the present case. The amount of money involved was not considerably different but somewhat more. In that case the head sentence, allowing for the plea of guilty and other factors, was still two years. Granted, there was no plea of guilty in this case and it is certainly fair to say, as Mr White did, that there is no evidence of contrition. But to say that a head sentence of three years is, by comparison with that sentence, manifestly inadequate, I think difficult to sustain.

1. The real question, however, as I think Mr White ultimately, or at least tacitly, accepted, was whether the suspension of the sentence after four months from the date of sentencing was manifestly inadequate, given that the head sentence was three years and the circumstances of the offending.   His Honour recognised, in fact, that but for the factors which he took account of in respect of the offender herself, that that would be a fair comment. 

1. His Honour was of the view that the impact of the sentence plainly had to take into account, as the Crimes Act 1914 (Cth) requires, the impact of the sentence, and a sentence of imprisonment in particular, upon not only her existing children but also the unborn child. That clearly was a relevant factor and it is not clear from even the pre‑sentence report what the situation would be if Ms Turyn’s current pregnancy ended with her giving birth in jail. No doubt the prison authorities would cope, but that is not really the point. The point I think his Honour was making was that it would be a factor that would significantly increase the impact of a sentence upon her, that she would be serving at least part of it whilst pregnant.

1. The next question is, what part would that be in any event?  Nobody put a figure on what otherwise would be the minimum time to be spent in custody before release.  But for a head sentence of three years, one would imagine that a non-parole period (or period before suspension) of nine months would not be exceptionable.  It follows that there was, of course, a considerable discount from that which his Honour gave and, plainly in the context, his Honour gave it by reference to the impending birth of Ms Turyn’s fourth child.

1. Was his Honour wrong in doing so?  In my opinion, no.  It was a matter which his Honour was entitled to take into account and the reasons for doing so, while they might be said to be merciful, do not take it to the point where we are left with an inadequate sentence.  And I suppose it is relevant to look not only to the case I have mentioned but also perhaps the Court of Criminal Appeal in New South Wales in R v Hinton (2002) 134 A Crim R 286 where, although the amount involved was less, it was a Centrelink employee who defrauded the Commonwealth of about $79,000.00, and yet the period imposed on appeal, after the initial sentence was held inadequate, was 14 months’ periodic detention.

1. Of course, you take into account the well-known principle that any re-sentencing by an appellate court will take account of the fact that the offender has already been sentenced once and is being disappointed of the effect of that sentence and hence is, in that sense, being subjected to double jeopardy.  But nevertheless, that sentence clearly is manifestly much less than the sentence his Honour imposed in this case which did and does involve this offender engaging in full-time imprisonment until the minimum period has expired.  In my opinion, the appeal should be dismissed.

GRAY J: 

1. I agree.

CONNOLLY J:

1. I agree.

HIGGINS CJ: 

1. The order of the court is the appeal, that is the cross-appeal by the Crown, is dismissed. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:     5 October 2007

Counsel for the Appellant:  Mr J White
Solicitor for the Appellant:  Commonwealth Director of Public Prosecutions
Counsel for the Respondent:  Ms J Saunders
Solicitor for the Respondent:  Mr D Perkins
Date of hearing:  7 September 2007
Date of judgment:  7 September 2007