Re: THE QUEEN
And: DAVID SALAH BOUDELAH and AARON LEON CHARLSTON
Nos. ACT G66 and 67 of 1990
FED No. 144
Criminal Law - Practice and Procedure - Sentencing
100 ALR 93
28 FCR 176
53 A Crim R 148
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Jenkinson(2) and Von Doussa(3) JJ.
CATCHWORDS
Criminal Law - Crown appeals against sentence - offences of engaging in sexual intercourse without consent in the company of another - sentences of four years' imprisonment and order for release after serving six months upon entering into recognisance containing conditions, including payment of pecuniary penalty of $2000 - disparity of sentences - evenhandedness in sentencing - desirability of adhering to general pattern of sentencing
Practice and Procedure - committal for sentence - Crown practice where Crown wishes to proceed on only some counts on which accused committed
Sentencing - relevant factors - sentencing "child" offenders
Crimes Act 1900 (NSW), ss.92C(2), 92D(2), 556B, 556C(4)(e)
Magistrates Court Act 1930, s.90A
Justices Act 1902 (NSW), s.51A
Childrens Services Act 1986, ss.5, 47, 63
Children's Protection and Young Offenders Act 1979 (SA), s.7
Parole Act 1976, ss.7(1), 21, 22
Federal Court of Australia Act 1976, s.24(1)(b), 28(1)
Regina v Paauwe (1971) 2 NSWLR 235
Hallam v O'Dea (1979) 22 SASR 133
The Queen v S. V. and Nates 91982) 31 SASR 263
The Queen v Bond (unreported, ACT Supreme Court, 25 May 1990)
The Queen v Kenta (unreported, ACT Supreme Court, 4 May 1988)
Geddes (1936) 36 SR(NSW) 554
Channon (1978) 33 FLR 433
Leach (1979) 1 A Crim R 320
R. v Hill (1982) 6 A Crim R 202
Roberts (1982) 1 WLR 133
Prindable (1979) 23 ALR 665
R. v Oliver (Court of Criminal Appeal, NSW, 20 March 1980, unreported)
HEARING
CANBERRA
#DATE 10:4:1991
Counsel for the Apellant: Mr G. James QC and Mr S. Madden
Solicitor for the Appellant: Director of Public Prosecutions
Counsel for the Respondent: Mr T. O'Donnell David Salah Boudelah
Solicitor for the Respondent: Legal Aid Office David Salah Boudelah
Counsel for the Respondent: Mr R. Livingston Aaron Leon Charlston
Solicitor for the Respondent: Messrs Barker and Barker Aaron Leon Charlston
ORDER
The appeal in respect of the respondent Boudelah be allowed, head sentence confirmed and non-parole period varied to one year six months.
The appeal in respect of the respondent Charlston be allowed, head sentences confirmed and non-parole period varied to one year six months, both sentences to be served concurrently.
The recommendations that the sentences be served in a minimum security establishment away from hardened offenders be confirmed.
All sentences to date from 15 October 1990.
Note: Settlement and entry of…
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- AGLC
- R v. Boudelah, D.S. v R [1991] FCA 144 (100 ALR 93; 28 FCR 176; 53 A Crim R 148)
- Case
- [1991] FCA 144
- Decision Date
CaseChat Overview and Summary
The court found that the original sentences did not align with the general sentencing principles for similar offences. The disparity in the sentences, particularly the leniency of the six-month non-parole period for Boudelah, did not reflect the seriousness of the crimes committed. The court highlighted the importance of maintaining consistency in sentencing to uphold public confidence in the justice system. In light of these considerations, the court determined that the sentences should be adjusted to reflect the appropriate punishment for the offences. The appeal was thus allowed, and the sentences were varied to ensure a non-parole period of one year and six months for both respondents, to be served concurrently, with the recommendation that they be served in a minimum security establishment away from hardened offenders.
In light of the court's decision, the appeal in respect of Boudelah was allowed, with the head sentence confirmed and the non-parole period varied to one year and six months. The appeal in respect of Charlston was also allowed, with the head sentences confirmed and the non-parole period varied to one year and six months, to be served concurrently with Boudelah. The court confirmed the recommendation that both sentences be served in a minimum security establishment away from hardened offenders. All sentences were to date from 15 October 1990. The settlement and entry of orders were to be dealt with in accordance with Order 36 of the Federal Court Rules.
Orders
Orders of the court
The appeal in respect of the respondent Boudelah be allowed, head sentence confirmed and non-parole period varied to one year six months.
The appeal in respect of the respondent Charlston be allowed, head sentences confirmed and non-parole period varied to one year six months, both sentences to be served concurrently.
The recommendations that the sentences be served in a minimum security establishment away from hardened offenders be confirmed.
All sentences to date from 15 October 1990.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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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