SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Queen v Avery |
Citation: | [2018] ACTCA 57 |
Hearing Date: | 14 November 2018 |
DecisionDate: | 14 December 2018 |
Before: | Murrell CJ, Mossop J, Robinson AJ |
Decision: | See [45] |
Catchwords: | APPEAL – CRIMINAL LAW – Crown appeal against sentence – unlawful confinement – demands accompanied by threats – trafficking in a controlled drug other than cannabis – unlawful possession of stolen property – possessing cannabis – whether sentence for unlawful confinement was manifestly inadequate – co-offenders – parity principle – general deterrence for vigilante justice – sentence for unlawful confinement manifestly inadequate – appeal allowed – offender resentenced |
Legislation Cited: | Crimes Act 1900 (ACT), ss 32, 34 Crimes (Sentence Administration) Act 2005 (ACT) Supreme Court Act 1933 (ACT), s 37E(2)(a) |
Cases Cited: | Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638 CMB v A-G (NSW) [2015] HCA 9; 256 CLR 346 |
Parties: | The Queen (Appellant) Barry Avery (Respondent) |
Representation: | Counsel J White SC (Appellant) J Lawton (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Boxall Legal (Respondent) | |
File Number: | ACTCA 9 of 2018 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 13 March 2018 Case Title: R v Avery Citation: [2018] ACTSC 64 |
THE COURT:
Introduction
The appellant has appealed against one of the sentences (the sentence for unlawful confinement) and the resulting total sentence imposed by Justice Elkaim (the sentencing judge) on 13 March 2018: R v Avery [2018] ACTSC 64; on the ground that the individual sentence was manifestly inadequate and, in consequence, the total sentence was manifestly inadequate.
The sentencing judge imposed the following sentences:
Charge and maximum sentence of imprisonment Sentence imposed Unlawful confinement (Crimes Act 1900 (ACT), s 34)
Maximum penalty: 10 years imprisonment
12 months (4 May 2017-3 May 2018) Demands accompanied by threats (
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- R v Avery [2018] ACTCA 57
- Case
- [2018] ACTCA 57
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CaseChat Overview and Summary
The court was required to determine whether the original sentence for unlawful confinement was so lenient as to be demonstrably wrong. This involved considering the severity of the offence, the respondent's role in the offending, the sentences imposed on co-offenders, and the broader public interest considerations, including the need to deter vigilante behaviour.
The court reasoned that the sentence for unlawful confinement was indeed manifestly inadequate. It applied the parity principle, noting that the respondent's sentence was significantly less than that of a co-offender who played a comparable role. Furthermore, the court emphasised the importance of general deterrence in cases involving vigilante justice, stating that such conduct could not be tolerated and required a sentence that reflected its seriousness. The court found that the original sentence failed to adequately reflect these considerations.
The appeal was allowed, and the respondent was resentenced.
Orders
Orders of the court
See [45]
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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