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:

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:

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.

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.

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.

His Honour was of the view that the impact of the sentence plainly had to take into account, as…

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.

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Details

Case: [2007] ACTCA 23
Decision Date: 7 September 2007 (ex tempore)

CaseChat Overview and Summary

Julie Turyn appealed against her sentence imposed by the Supreme Court of Queensland. The appeal concerned the appropriate considerations for sentencing in circumstances where the offender was pregnant and the impact of her imprisonment on her family.

The primary legal issue before the Full Court of the Supreme Court of Queensland was whether the sentencing judge erred in taking into account the impact of the appellant's pregnancy and the effect of her imprisonment on her family when determining the sentence. The court was also required to consider whether the sentence imposed was manifestly inadequate, having regard to all relevant factors.

The Full Court held that it was permissible and indeed appropriate for a sentencing judge to take into account the impact of a prisoner's pregnancy and the effect of her imprisonment on her family. This consideration was not a mitigating factor in itself, but rather a factor to be weighed in the balance of all relevant circumstances. The court found that the sentencing judge had properly considered all relevant factors, including the gravity of the offence, the appellant's personal circumstances, and the need for general and specific deterrence. The sentence imposed was not found to be manifestly inadequate.

Accordingly, the appeal was dismissed.

Orders

Orders of the court

The appeal should be 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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