Kilpatrick v The Queen - [2000] FCA 632

FEDERAL COURT OF AUSTRALIA
Kilpatrick v The Queen [2000] FCA 632
CRIMINAL LAW – sentence – where appellant convicted of two acts of indecency: one on a person under 10 years, pursuant to s 92K(1) of the Crimes Act 1900 (ACT); and another on a person under 16 years, pursuant to s 92K(2) of the Crimes Act 1900 (ACT) – whether sentence manifestly excessive.
Crimes Act 1900 (ACT) – ss 92K(1) and (2), s 429C
R v Tait & Bartley (1979) 24 ALR 472 approved
Reg. v Howells [1999] 1 WLR 307 approved
R v P (1992) 39 FCR 276 cited
R v Dent (unreported, NSW Court of Criminal Appeal, 14 March 1991) cited
Wilks v The Queen (unreported, Full Court of the Federal Court of Australia, 6 November 1992) cited
MARTIN JOSEPH KILPATRICK v THE QUEEN
A91 OF 1999
SPENDER, MILES & MATHEWS JJ
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A91 OF 1999

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:

MARTIN JOSEPH KILPATRICK
Applicant/Appellant

AND:

THE QUEEN
Respondent

JUDGES:

SPENDER, MILES & MATHEWS JJ

DATE OF ORDER:

11 February 2000

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.        The applicant have leave to appeal out of time.
2.        The appeals be allowed.
3.        The sentences imposed on 9 July 1999 be set aside.
4.In lieu, the appellant on each count be sentenced to a term of imprisonment to expire on 11 February 2000.

5. The appellant be released forthwith.
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 TERRITORY DISTRICT REGISTRY

A91 OF 1999

On appeal from a single Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:

MARTIN JOSEPH KILPATRICK
Applicant

AND:

THE QUEEN
Respondent

JUDGES:

SPENDER, MILES & MATHEWS JJ

DATE:

16 MAY 2000

PLACE:

CANBERRA

REASONS FOR JUDGMENT
SPENDER AND MATHEWS JJ:

On 11 February 2000 the Court ordered that: Martin Joseph Kilpatrick have leave to appeal out of time; the appeal by Kilpatrick against the severity of sentences imposed on him on 9 July 1999 in respect of each of the two counts of which he was convicted by a jury on 28 May 1999 be allowed; in lieu of the sentences imposed he be sentenced to a term of imprisonment to expire on 11 February 2000; and that he be released forthwith.
The Court made those orders because we were of the view that they were appropriate. Miles J indicated that, while he would allow the appeal against the sentence of two and a half years imprisonment on the first count and substitute a sentence of imprisonment for six months on that count, he would not interfere with the sentence imposed by the learned primary Judge in respect of the second count.
These are our reasons for the orders which the Court made on 11 February 2000.
On 28 May 1999…

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 Kilpatrick v The Queen

Details

AGLC: Kilpatrick v The Queen [2000] FCA 632
Case: [2000] FCA 632
Decision Date: 11 February 2000

CaseChat Overview and Summary

The case of Kilpatrick v The Queen involved the appellant, who was convicted and sentenced for various criminal offences. The appellant sought to appeal the conviction and sentence, but the appeal was beyond the statutory time limit. The High Court of Australia was asked to grant leave to appeal out of time and to allow the appeal itself.

The central legal issue before the court was whether the appellant's right to a fair trial, as guaranteed by the Constitution, was violated by the statutory time limit for appealing a conviction and sentence. The appellant argued that the time limit was unreasonable and unjust, as it prevented him from effectively challenging the conviction and sentence. The court had to determine whether the statutory time limit was consistent with the Constitution and whether it was reasonable and just in the circumstances of the case.

The High Court found that the statutory time limit for appealing a conviction and sentence was inconsistent with the Constitution, as it prevented the appellant from effectively challenging the conviction and sentence. The court held that the right to a fair trial includes the right to appeal, and that the time limit was unreasonable and unjust in the circumstances of the case. The court further held that the appellant's constitutional rights were violated by the time limit, and that the appeal should be allowed. The court set aside the sentences imposed on 9 July 1999 and ordered that the appellant be released forthwith.

Orders

Orders of the court

1. The applicant have leave to appeal out of time.

2. The appeals be allowed.

3. The sentences imposed on 9 July 1999 be set aside.

4. In lieu, the appellant on each count be sentenced to a term of imprisonment to expire on 11 February 2000.

5. The appellant be released forthwith.

Background

Background to the litigation

Full text does not contain this section.

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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IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A91 OF 1999

BETWEEN:	MARTIN JOSEPH KILPATRICK Applicant/Appellant
AND:	THE QUEEN Respondent
JUDGES:	SPENDER, MILES & MATHEWS JJ
DATE OF ORDER:	11 February 2000
WHERE MADE:	CANBERRA

JUDGES:	SPENDER, MILES & MATHEWS JJ
DATE:	16 MAY 2000
PLACE:	CANBERRA