SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Le Clair v The Queen; Achanfuo-Yeboah v The Queen
Citation:
[2017] ACTCA 19
Hearing Date:
5 May 2017
DecisionDate:
11 May 2017
Before:
Murrell CJ, Mossop and Collier JJ
Decision:
Sentence imposed on the first appellant is backdated by 16 days to allow for unaccounted time spent in custody. Otherwise, appeal dismissed and orders of the sentencing judge confirmed. The second appellant’s sentence is varied to account for time spent on bail pending the appeal.
Catchwords:
APPEAL – CRIMINAL LAW – Appeals against sentence – unlawful confinement – trafficking in a trafficable quantity of cannabis – co-offenders – parity principle – parity and concurrency and cumulation – restrictive bail conditions – allowance for time spent in custody – whether sentences manifestly excessive – differences in criminal histories – consideration of family circumstances
The first and second appellants (Mr Le Clair and Mr Achanfuo-Yeboah) appealed against sentences imposed by Burns J (the sentencing judge) on 25 May 2016.
For a joint offence of unlawful confinement committed on 28 December 2013 the first appellant was sentenced to 3 years and 6 months’ imprisonment from 25 May 2016 to 24 November 2019. The sentence was reduced from three years and nine months’ imprisonment for the guilty plea, a discount of about 6.6 per cent (although the sentencing judge indicated a discount of five…
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
AGLC
Le Clair v The Queen [2017] ACTCA 19
Case
[2017] ACTCA 19
Decision Date
CaseChat Overview and Summary
The appellants, Le Clair and another, appealed against sentences imposed by the District Court of New South Wales following their convictions for unlawful confinement and trafficking in a trafficable quantity of cannabis. The appeals concerned the application of the parity principle in sentencing, specifically in relation to concurrent and cumulative sentences, restrictive bail conditions, and allowances for time spent in custody.
The central legal issues before the Court of Criminal Appeal were whether the sentences imposed were manifestly excessive, whether the sentencing judge had adequately considered the parity principle in relation to co-offenders, and whether appropriate allowances had been made for time spent in custody and under restrictive bail conditions. The court also considered the impact of the appellants' differing criminal histories and family circumstances on the sentencing determination.
The Court of Criminal Appeal applied the parity principle, which requires that sentences imposed on co-offenders should be proportionate, allowing for differences in their objective seriousness of offending and subjective circumstances, including criminal history. The court found that while the sentencing judge had considered these factors, the sentence imposed on the first appellant was not backdated sufficiently to account for all time spent in custody. The court also noted that the second appellant had spent time on bail pending the determination of his appeal, which warranted an adjustment to his sentence.
The appeal was otherwise dismissed, with the orders of the sentencing judge confirmed. The sentence imposed on the first appellant was backdated by 16 days to allow for unaccounted time spent in custody. The second appellant’s sentence was varied to account for time spent on bail pending the appeal.
Orders
Orders of the court
Sentence imposed on the first appellant is backdated by 16 days to allow for unaccounted time spent in custody. Otherwise, appeal dismissed and orders of the sentencing judge confirmed. The second appellant’s sentence is varied to account for time spent on bail pending the appeal.