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R v Creighton

R v Creighton

Case [2011] ACTCA 13 22 July 2011

Appeal

Sentencing

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Criminal Law

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THE QUEEN v OWEN PATRICK CREIGHTON [2011] ACTCA 13 (22 JULY 2011)

APPEAL – appeal against sentence – claim of manifest inadequacy – manifest inadequacy does not require specific error to be shown – no attempt by the DPP to identify an adequate sentence by reference to ACT sentencing ranges – appeal court should not simply substitute its opinions for that of the sentencing judge – appeal court should not uphold appeal unless basis for doing so can be stated – appeal dismissed.

APPEAL – appeal against sentence – claim of specific error being inadequate accumulation – no specific error shown in accumulation of sentences – failure of sentencing judge to recognise the objective seriousness of the offences not shown – appeal dismissed.

APPEAL – guidance given by appeal court can only relate to consistent application of legal principles, not to mathematical indication of acceptable sentences.

APPEAL – principles for Crown appeals – effect of appellant having finished period of full-time custody required by original sentence.

SENTENCING – deterrent effect of periodic detention.

Crimes Act 1900 (ACT), ss 29(2), 29(4)
Crimes (Sentence Administration) Act 2005

(ACT)
(ACT), s 62(1)(a)

Road Transport (General) Act 1999

The Queen v Osenkowski (1982) 30 SASR 212
Griffiths v The Queen (1977) 137 CLR 293
Everett v The Queen (1994) 181 CLR 295
Dinsdale v The Queen (2000) 202 CLR 321

Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
Hili v R; Jones v R (2010) 272 ALR 465

R v Whyte (2002) 55 NSWLR 252
Markarian v The Queen (2005) 228 CLR 357

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

No. ACTCA 44-2010
No. SCC 88 of 2010

Judges: Gray P, Penfold and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 22 July 2011

IN THE SUPREME COURT OF THE       )          No. ACTCA 44-2010
  )          No. SCC 88 of 2010
AUSTRALIAN CAPITAL TERRITORY)
  )

COURT OF APPEAL )

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

BETWEEN:THE QUEEN
Appellant

AND:OWEN PATRICK CREIGHTON
Respondent

ORDER

Judges:  Gray P, Penfold and Lander JJ
Date:  22 July 2011
Place:  Canberra

THE COURT ORDERED THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 44-2010
  )          No. SCC 88 of 2010
AUSTRALIAN CAPITAL TERRITORY    )
  )
COURT OF APPEAL  )

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

BETWEEN: THE QUEEN
Appellant

AND:OWEN PATRICK CREIGHTON
Respondent

Judges:  Gray P, Penfold and Lander JJ
Date:  22 July 2011
Place:  Canberra

REASONS FOR JUDGMENT

GRAY P and LANDER J:

This is an appeal from a sentence imposed by a Judge of this Court on 28 October 2010. On 5 May 2011, we dismissed the appeal and said we would give reasons later. These are those reasons.

The respondent pleaded guilty to three charges arising out of a motor vehicle accident in which he was…

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 R v Creighton

Details

AGLC: R v Creighton [2011] ACTCA 13
Case: [2011] ACTCA 13
Decision Date: 22 JULY 2011

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed against the sentence imposed on the respondent, R v Creighton, in the Supreme Court of the Australian Capital Territory. The DPP contended that the sentence was manifestly inadequate and that the sentencing judge had erred in the accumulation of sentences.

The appeal raised two primary legal issues: first, whether the sentence imposed was so inadequate as to be manifestly unjust, and second, whether the sentencing judge had made a specific error in accumulating the sentences, particularly in failing to recognise the objective seriousness of the offences. The court also considered the principles governing Crown appeals against sentence and the role of an appellate court in providing guidance on sentencing.

The Court of Appeal dismissed the DPP's appeal. It held that a claim of manifest inadequacy does not require the identification of a specific error by the sentencing judge. However, the DPP had failed to demonstrate that the sentencing judge had erred in principle or fact, or that the sentence was demonstrably unjust. The court emphasised that an appellate court should not substitute its own opinion for that of the sentencing judge unless there is a clear basis for doing so. Furthermore, the court noted that the DPP had not attempted to identify an adequate sentence by reference to ACT sentencing ranges. The court also found no specific error in the accumulation of sentences or a failure to recognise the objective seriousness of the offences. The court reiterated that guidance provided by an appellate court should focus on the consistent application of legal principles rather than providing mathematical indications of acceptable sentences. The fact that the respondent had completed the period of full-time custody required by the original sentence was also a relevant consideration.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

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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Citations

R v Creighton [2011] ACTCA 13

Most Recent Citation

Chifuntwe v Gardiner [2012] ACTSC 136

Cases Citing This Decision

Director of Public Prosecutions v Baker (a pseudonym) [2025] ACTSC 196
Citation 1

…v Calhoun [2023] ACTSC 189 DPP v Morley [2024] ACTSC 124 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 R v Campbell [2010] ACTCA 20 R v Creighton [2011] ACTCA 13 R v Kekalainen [2014] ACTSC 132 R v Loeschnauer [2022] ACTSC 30; 98 MVR 484 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252…
R v Smith [2019] ACTSC 65
Citation 2

…CTCA 46; 245 A Crim R 80 Mun v R [2015] NSWCCA 234 R v Creighton (unreported, Supreme Court of the ACT, Refshauge J, 28 October 2010) . R v Creighton [2011] ACTCA 13 R v Harrison [2002] NSWCCA 79; 121 A Crim R 380 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Jurisic [1998] NSWSC 423; 45 NSWLR 209 R v Kekalainen […
Lewis v Australian Capital Territory [2018] ACTSC 19
Citation 3 (Para 1)

…A periodic detention order is a sentence of imprisonment: R v Creighton [2011] ACTCA 13 at [47].…
R v Carmody [2016] ACTSC 382
Citation 4 (Para 1)

…detail in R v Ngerengere (No 3) at [17]-[27] and its punitive aspects. Like periodic detention, which the Court of Appeal considered in R v Creighton [2011] ACTCA 13 at [50], it is a deterrent sentence. I consider that it is, though clearly more lenient than immediate full-time custody, still a deterrent sentence.…
Samani v The Queen [2016] ACTCA 48
Citation 5 (Para 1)

…I note that the Court of Appeal held in R v Creighton [2011] ACTCA 13 at [50], that a sentence of periodic detention had deterrent effect. The intensive correction order replaces that option. I have no reason to suppose that this reasoning is any less appropriate to the sentencing option which replaced periodic de…
Quzag v The Queen (No 4) [2016] ACTCA 27
Citation 6 (Para 1)

…ke a suspended sentence, certainly not a sentence without punishment. See Elliott v Harris (No 2) (1976) 13 SASR 516 at 527. Indeed, in R v Creighton [2011] ACTCA 13 at [50], this Court acknowledged the deterrent effect of periodic detention.…
In the matter of an application for bail by Taniela Pikula [2015] ACTSC 3
Citation 7 (Para 1)

…, different jurisdictions can have different statutory penalties for what is essentially the same offence (as to which see, The Queen v Creighton [2011] ACTCA 13 at [41]-[42]) but it cannot be said other than that, whatever the individual maxima for particular offences, a sentence of at least five years’ imprisonm…
Monfries v The Queen [2014] ACTCA 46
Citation 8

…s Court of Criminal Appeal 23 July 1998 R v Borkowski (2009) 195 A Crim R 1 R v Campbell [2010] ACTCA 20 R v Cousins [2002] NSWCCA 81 R v Creighton [2011] ACTCA 13 R v De Simoni (1981) 147 CLR 383 R v Dib [2003] NSWCCA 117 R v Ellis (1993) 63 A Crim R 449 R v Engert (1995) 84 A Crim R 67 R v Flowers [2014] ACTCA 1…
R v Kekalainen [2014] ACTSC 132
Citation 9 (Para 1)

…I have also had regard to what the Court of Appeal said in R v Creighton [2011] ACTCA 13. This was a decision delivered at a time when the maximum penalty was seven years’ imprisonment. Although dependent upon the lower penalty, I have considered the decisions to which I referred in R v Creighton (Unreported, Aust…
Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory [2013] ACTSC 198
Citation 10 (Para 1)

…terrence involved: R v Valentini (1980) 48 FLR 416. This reasoning would appear then to apply equally to periodic detention orders: see R v Creighton [2011] ACTCA 13 at [50].…
Chifuntwe v Gardiner [2012] ACTSC 136
Citation 11 (Para 1)

…In R v Creighton [2011] ACTCA 13, the Court of Appeal considered that the sentence I had imposed was within a proper sentencing range and not so inadequate to require the Court to intervene by that it was a light sentence. Indeed, Gray P and Lander J commented (at [51]), that “the members of this Court all might h…

See all citing cases →

Cases Cited

Hili v The Queen [2010] HCA 45
Citation 1 (Para 1)

…be as to the consistent application of relevant legal principles rather than of specified numbers or sentencing ranges. In Hili v R; Jones v R (2010) 272 ALR 465, the majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) commented at [49]:…
R v Whyte [2006] NSWCCA 75
Citation 2 (Para 1)

…igent driving. These are crimes of risk-taking or carelessness rather than of intent and (as is recognised in the NSW Guideline Judgment in R v Whyte (2002) 55 NSWLR 252 at [204]) many such offences involve offenders of otherwise good character. It is thus inevitable that there will be a variety of different circumsta…
Markarian v The Queen [2005] HCA 25
Citation 3 (Para 1)

…ubmissions he did not address either the risks of error inherent in any adoption of a mathematical approach to sentencing ( Markarian v The Queen (2005) 228 CLR 357), or the risks, absent a clear statutory basis for doing so, in attempting to set a numerical norm or range as commented on in Wong and Hili . In the lat…
R v Osenkowski [2005] SASC 142
Citation 4 (Para 1)

…Judge or to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience: The Queen v Osenkowski (1982) 30 SASR 212 at 213. Such an appeal should be a rarity: Griffiths v The Queen (1977) 137 CLR 293 at 310; Everett v The Queen (1994) 181 CLR 295 at 300.…
Wong v The Queen [2001] HCA 64
Citation 5 (Para 1)

…rt that would be useful in future sentencing processes without falling foul of the High Court’s comments in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 ( Wong ) to the general effect that the guidance to be given by Courts of Appeal should be as to the consistent application of relevant legal principles ra…
Dinsdale v The Queen [2000] HCA 54
Citation 6 (Para 1)

…By way of introduction to my comments about how the grounds of appeal were argued, I note the remarks of Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 ( Dinsdale ) about Crown appeals. At [62] his Honour noted that:…
Everett v the Queen [1994] HCA 49
Citation 7 (Para 1)

…Queen v Osenkowski (1982) 30 SASR 212 at 213. Such an appeal should be a rarity: Griffiths v The Queen (1977) 137 CLR 293 at 310; Everett v The Queen (1994) 181 CLR 295 at 300.…
Griffiths v The Queen [1977] HCA 44
Citation 8 (Para 1)

…e crime as to shock the public conscience: The Queen v Osenkowski (1982) 30 SASR 212 at 213. Such an appeal should be a rarity: Griffiths v The Queen (1977) 137 CLR 293 at 310; Everett v The Queen (1994) 181 CLR 295 at 300.…

Legislation Cited

Crimes Act 1900 (ACT) 29(2), 29(4)
3 mentions
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention (from Para 1)
Road Transport (General) Act 1999 (ACT)
1 mention (from Para 1)