Criminal law - Appeals against sentence - Appellants convicted after trial of conspiracy to cause an unauthorised modification of data held on a computer, contrary to s 11.5(1) and s 477.2(1) of the Criminal Code (Cth) - One appellant sentenced to 2 years 6 months' immediate imprisonment to be released on a recognizance release order after serving 10 months and the other appellant sentenced to 3 years' immediate imprisonment to be released on a recognizance release order after serving 12 months - Whether trial judge's findings as to aggravating factors in error - Whether the trial judge erred by failing properly to consider the imposition of an order that the appellants be released forthwith pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) - Whether the sentences were manifestly excessive

Legislation:

Crimes Act 1914 (Cth), s 16A, s 17A, s 19AC, s 20
Criminal Code (Cth), s 11.5(1), s 477.2(1)
Judiciary Act 1903 (Cth), s 68

Result:

Leave to appeal refused on grounds 1, 2 and 3 of each appeal
Appeals dismissed

Category: D

Representation:

CACR 115 of 2012

Counsel:

Appellant: Mr A L Troy
Respondent: Ms L Chapman SC

Solicitors:

Appellant: Paxman & Paxman
Respondent: Director of Public Prosecutions (Cth)

CACR 116 of 2012

Counsel:

Appellant: Mr A L Troy
Respondent: Ms L Chapman SC

Solicitors:

Appellant: Paxman & Paxman
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
De Hollander v The Queen [2012] WASCA 127
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hull v The State of Western Australia [2005] WASCA 194; (2005) 156 A Crim R 414
Law v The State of Western Australia [2009] WASCA 193
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Stevens [1999] NSWCCA 69
R v Stockdale [1995] VSC 181
R v Storey [1998] 1 VR 359
The State of Western Australia v JWRL (a child) [2010] WASCA 179

MARTIN CJ: Leave to appeal on grounds 1, 2 and 3 of each of these appeals should be refused and the appeals should be dismissed for the reasons given by Buss JA, with which I agree.
BUSS JA: The appellant in CACR 115 of 2012 (Mr…

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 Larkin v The Queen

Details

AGLC: Larkin v The Queen [2012] WASCA 238
Case: [2012] WASCA 238
Decision Date: 23 NOVEMBER 2012

CaseChat Overview and Summary

The appellants, Larkin and another, appealed against their sentences in the High Court of Australia, having been convicted of conspiracy to cause an unauthorised modification of data held on a computer. The charges were brought under section 11.5(1) and section 477.2(1) of the Criminal Code, with the appellants arguing that the trial judge had erred in various aspects of the sentencing process. Specifically, the appellants contended that the trial judge incorrectly identified certain aggravating factors and failed to adequately consider the possibility of immediate release under section 20(1)(b) of the Crimes Act 1914. They further argued that the sentences imposed were manifestly excessive.

The legal issues before the court included whether the trial judge had erred in identifying the aggravating factors, whether the trial judge had properly considered the option of immediate release, and whether the sentences were manifestly excessive. The court examined the trial judge's reasons and the principles of sentencing, focusing on whether the sentences imposed were appropriate in all the circumstances. The court also considered the nature and severity of the offences and the appellants' personal circumstances.

The court found that the trial judge had not erred in identifying the aggravating factors, as they were supported by the evidence. The court held that the trial judge had considered the possibility of immediate release but had appropriately weighed the circumstances and determined that immediate release was not warranted. Regarding the sentences, the court found that they were not manifestly excessive, considering the gravity of the offences and the need for general deterrence. The court upheld the sentences imposed by the trial judge, finding that they were proportionate and appropriate.

The High Court dismissed the appeals, upholding the sentences imposed by the trial judge. The appellants were to serve the remainder of their sentences as determined by the trial judge, with the possibility of early release subject to the terms of their recognizance release orders.

Orders