Re: THE QUEEN
And: JEFFREY JOHN HILLSLEY
No. ACT G53 of 1990
FED No. 38
Criminal Law - Sentencing
105 ALR 560
(1992) 34 FCR 148
(1992) 59 A Crim R 187
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1) Gallop(2) and Spender(3) JJ.
CATCHWORDS
Criminal Law - Crown appeal against inadequacy of sentence - role of appellate court - relevant principles
Sentencing - power to order additional sentence to be served partially concurrently
Sentencing - fixing non-parole period - relevant considerations
Crimes Act 1900 (NSW),ss.92M, 92E(1), 92K(1), 443, 441A, 447
Crimes (Amendment) (No. 4) Act 1986, s.8, s.9
Crimes Act 1914, s.19
Federal Court of Australia Act 1976, ss.24(1)(b), 28(5)
Social Welfare Act 1970, s.123
Rumpf (1987) 29 A Crim R 64
Magee (1980) WAR 117
Geddes (1936) 36 SR(NSW) 554
Channon (1978) 33 FLR 433
Leach (1979) 1 A Crim R 320
R. v De Zylva (1988) 33 A Crim R 44
R. v Peter Vaitos (1981) 4 A Crim R 239
Veen v The Queen (No. 2) (1987-1988) 164 CLR 465
Peter Kay Morgan and Douglas Kay Morgan (1980) 7 A Crim R 146
HEARING
CANBERRA
#DATE 11:2:1992
Counsel for the appellant : Mr R. Webster
Solicitors for the applicant : ACT Director of Public Prosecutions
Counsel for the respondent : Mr T. O'Donnell
Solicitors for the respondent : ACT Legal Aid Office
ORDER
The appeal be allowed and the sentences be varied as follows:-
(2) the head sentences of four years' imprisonment for abduction,
seven years' imprisonment for sexual intercourse with a child, and seven years' imprisonment for sexual intercourse with the same child on a second occasion to date from 27 February 1990, be confirmed and those sentences be served concurrently;
(3) the sentence of five years' imprisonment for indecent assault
involving attempted sexual intercourse on the other girl be confirmed and that it be served cumulatively upon the sentences referred to above; and
(4) a non-parole period of six years to date from 27 February 1990
be fixed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
I have had the opportunity of reading the reasons for judgment prepared by Gallop J. I agree that the appeal should be allowed and I agree with the orders Gallop J proposes, for the reasons he gives.
I add some brief observations of my own about the absence of any power to impose a sentence that is partly concurrent and partly cumulative and about the non-parole period proposed by Gallop J.
The advantages of a power to make a sentence partly concurrent and partly cumulative have been commented upon in the past. In Rumpf (1987) 29 A Crim R 64 at 75,…
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- AGLC
- The Queen v Hillsley, J.J. [1992] FCA 38 (105 ALR 560; (1992) 34 FCR 148; (1992) 59 A Crim R 187)
- Case
- [1992] FCA 38
- Decision Date
CaseChat Overview and Summary
The court examined the principles that guide appellate courts in assessing the adequacy of a sentence. It noted that while appellate courts should not lightly interfere with the primary sentencing judge's discretion, they have a duty to ensure that sentences are proportionate to the crimes committed. The court considered the severity and impact of the crimes, the appellant's criminal history, and the need for deterrence and denunciation. It concluded that the sentences imposed were inadequate in light of the serious nature of the offences, the vulnerability of the victims, and the need to uphold public confidence in the justice system.
The court allowed the appeal, varying the sentences imposed. The head sentences for abduction and sexual intercourse with a child were confirmed and ordered to be served concurrently, while the sentence for indecent assault was to be served cumulatively. A non-parole period of six years was fixed, ensuring that the appellant would serve a significant period of imprisonment before being eligible for parole. The court's decision emphasised the importance of proportionality and public confidence in the sentencing process, and the need for sentences to reflect the seriousness of serious sexual offences against children.
Orders
Orders of the court
The appeal be allowed and the sentences be varied as follows:-
(2) the head sentences of four years' imprisonment for abduction,
seven years' imprisonment for sexual intercourse with a child, and seven years' imprisonment for sexual intercourse with the same child on a second occasion to date from 27 February 1990, be confirmed and those sentences be served concurrently;
(3) the sentence of five years' imprisonment for indecent assault
involving attempted sexual intercourse on the other girl be confirmed and that it be served cumulatively upon the sentences referred to above; and
(4) a non-parole period of six years to date from 27 February 1990
be fixed.
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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