APPEAL AND NEW TRIAL – general principles – in general and right of appeal – Crown appeal against sentence – manifest inadequacy – no material on which manifest inadequacy to be determined.
APPEAL AND NEW TRIAL – general principles – in general and right of appeal – Crown appeal against sentence – principle of totality – application prior to determination of concurrency and cumulation of sentences – error manifested – appeal upheld.
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 39 of 2010 No. SCC 198 of 2010
Judges: Refshauge, Penfold and Lander JJ Court of Appeal of the Australian Capital Territory Date: 17 November 2011
IN THE SUPREME COURT OF THE) No. ACTCA 39 of 2010 ) No. SCC 198 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: TW
Respondent
ORDER
Judges: Refshauge, Penfold and Lander JJ Date: 17 November 2011 Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The sentence imposed by the Supreme Court be set aside.
In lieu, the respondent be sentenced as follows:
(i) committing an act of indecency on child B, imprisonment for one year four months from 18 March 2010 to 17 July 2011;
(ii) committing an act of indecency on child C, imprisonment for one year four months from 18 December 2010 to 17 April 2012;
(iii) committing an act of indecency…
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.
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Details
AGLC
R v TW [2011] ACTCA 25
Case
[2011] ACTCA 25
Decision Date
CaseChat Overview and Summary
The Crown appealed against the sentence imposed on the respondent, TW, in the District Court of New South Wales. The Crown contended that the sentence was manifestly inadequate.
The central legal issues before the Court of Criminal Appeal were whether the sentencing judge erred in applying the principle of totality prior to determining whether the sentences should be served concurrently or cumulatively, and whether this error manifested in a sentence that was demonstrably inadequate.
The Court of Criminal Appeal found that the sentencing judge had indeed erred by applying the principle of totality before determining the concurrency or cumulation of sentences. This premature application of the totality principle led to an error in the sentencing process, resulting in a sentence that was manifestly inadequate. The Court reasoned that the principle of totality is intended to ensure that the aggregate sentence is just and proportionate, and its application should follow, not precede, the determination of how individual sentences are to be served.