Peter Wilson v The Queen - [2007] ACTCA 25

PETER WILSON v THE QUEEN
[2007] ACTCA 25 (17 DECEMBER 2007)

APPEAL – appeal against sentence – no error in not providing reasons to show consideration of alternatives to full time custody.

SENTENCING – the requirement to record reasons where the court departs from a recommendation contained in a pre-sentence report dependent upon the court making a determination on eligibility of the offender – periodic detention not raised at sentencing – custodial sentence inevitable.

Wong v The Queen (2001) 207 CLR 584

GAS v The Queen (2004) 217 CLR 198

R v Olbrich (1999) 1999 CLR 270

The Queen v Perre (1986) 41 SASR 105

Crimes (Sentencing) Act 2005 (ACT), s 6, s 7, 10, s 11, s 12, s 16, s 33, s 34, s 40A, s 41, s 42, s 75, s 76, s 77, s 78, s 79, s 88, s 89, s 97, s 103, s 117, s 129, Chapter 4, Part 4.2, Part 5.4
Crimes (Sentencing Administration) Act 2005 (ACT), Chapter 5
Corrections Management Act 2007 (ACT), Schedule 1 Part 1.2
Criminal Code 2002 (ACT), s 312

Legislation Act 2001 (ACT), s 126, s 127

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

No. ACTCA 18–2007
No. SCC 227 of 2006

Judges: Higgins CJ, Gray and Besanko JJ
Court of Appeal of the Australian Capital Territory
Date: 17 December 2007

IN THE SUPREME COURT OF THE  )   No. ACTCA 18-2007
  )  No. SCC 227 of 2006
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

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

BETWEEN: PETER WILSON
Appellant

AND: THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Gray and Besanko JJ
Date:  17 December 2007
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

The appellant surrender himself to the Chief Executive ACT Corrective Services within 48 hours from today.

The sentence date from the date of his surrender.

The term of six months imprisonment be reduced to five months and seven days from that date.

The balance of the term of 18 months imprisonment be reduced to 17 months and seven days.

The good behaviour order for a period of two years be confirmed from the date of his surrender.

IN THE SUPREME COURT OF THE  )   No. ACTCA 18-2007
  )  No. SCC 227 of 2006
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

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

BETWEEN: PETER WILSON
Appellant

AND: THE QUEEN
Respondent

Judges:  Higgins CJ, Gray and Besanko JJ
Date:  17 December 2007
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

I agree that the appeal must be dismissed for the reasons set out by Gray J and I agree with the orders proposed.
I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Higgins.
Associate:
Date: 17 December 2007

IN THE…

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 Peter Wilson v The Queen

Details

AGLC: Peter Wilson v The Queen [2007] ACTCA 25
Case: [2007] ACTCA 25
Decision Date: 17 December 2007

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by Peter Wilson against The Queen. The appeal was heard by Higgins CJ, Gray and Besanko JJ.

The primary legal issue before the court was whether the sentencing judge erred by failing to provide reasons for departing from a recommendation in a pre-sentence report, specifically concerning alternatives to full-time custody. A related issue was whether periodic detention had been a viable or raised alternative at the sentencing hearing.

The court reasoned that the requirement to record reasons for departing from a pre-sentence report recommendation is contingent upon the court making a determination regarding the offender's eligibility for a particular alternative sentence. In this instance, periodic detention was not raised as an option during the sentencing proceedings, and the court concluded that a custodial sentence was inevitable given the circumstances. Consequently, there was no error in the sentencing judge not providing reasons to demonstrate consideration of alternatives to full-time custody.

The appeal was dismissed. The appellant was ordered to surrender himself to the Chief Executive ACT Corrective Services within 48 hours, with the sentence to commence from that date. The term of six months imprisonment was reduced to five months and seven days, and the balance of the 18-month imprisonment term was reduced to 17 months and seven days. The two-year good behaviour order was confirmed from the date of surrender.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant surrender himself to the Chief Executive ACT Corrective Services within 48 hours from today.

3. The sentence date from the date of his surrender.

4. The term of six months imprisonment be reduced to five months and seven days from that date.

5. The balance of the term of 18 months imprisonment be reduced to 17 months and seven days.

6. The good behaviour order for a period of two years be confirmed from the date of his surrender.

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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