R v TW (No 2) - [2014] ACTCA 37

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	R v TW (No 2)
Citation:	[2014] ACTCA 37
Hearing Date(s):	12 August 2014
DecisionDate: Judgment Date:	12 August 2014 22 August 2014
Before:	Refshauge, Penfold and Gilmour JJ
Decision:	The court orders that the sentences imposed on 17 November 2011 on counts 11 and 12 of the indictment be amended as follows: (a) For the offence of using a carriage service to access child pornography, imprisonment for one year and four months to commence on 18 March 2014 and end on 17 July 2015; (b) For the offence of using a carriage service to distribute child pornography, imprisonment for two years and two months to commence on 18 July 2015 and end on 17 September 2017.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Judgment and Punishment – Sentencing proceedings – Court has power to re-open sentencing proceedings to correct an error made in sentencing – Power to re-open applies to both Territory and Commonwealth sentencing proceedings – Composition of the Court does not need to be the same as the Court which imposed the sentence
Legislation Cited:	Crimes Act 1900 (ACT), Dictionary Crimes Act 1914 (Cth), s 19(3) Crimes (Sentencing) Act 2005 (ACT), 61 Judiciary Act 1903 (Cth), ss 61, 68 Criminal Code Act 1995 (Cth)
Cases Cited:	Achurch v The Queen (2014) 306 ALR 566 Fasciale v The Queen (2010) 30 VR 643 Johnson v Johnson (No 4) (2000) FLC 93-051 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Power v The Queen (1974) 131 CLR 623 Putland v The Queen (2004) 218 CLR 174 R v TW (2011) 6 ACTLR 18 S v Recorder of Manchester [1971] AC 481
Parties:	The Queen (Applicant) TW (Respondent)
Representation:	Counsel Mr J White SC (Applicant) Mr R Davies (Respondent)
Solicitors Director of Public Prosecutions (ACT) (Applicant) Legal Aid (ACT) (Respondent)
File Number(s):	ACTCA 39 of 2010

THE COURT:

On 17 November 2011, this Court, by majority, upheld a Crown appeal against the sentence imposed by Nield AJ on the respondent, TW, for thirteen offences involving acts of indecency with children and producing, possessing and disseminating child pornography. See R v TW (2011) 6 ACTLR 18.

The original sentence totalled seven years’ imprisonment with a non-parole period of four years and six months. This Court increased the sentence and described it as being increased to nine years and seven months with a non-parole period of five years and six months.

The offences of which TW had been convicted included offences against the Crimes Act 1900 (ACT) and also the Criminal Code Act 1995 (Cth), that is, Territory offences and federal offences. As Weinberg JA, with whom Ashley JA agreed, commented in Fasciale v The Queen (2010) 30 VR 643 at 647; [28]:

The question of how to combine sentences for State and Commonwealth offences has, for some years, created difficulties for sentencing judges.

The sentences imposed by this Court…

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 TW (No 2)

Details

AGLC: R v TW (No 2) [2014] ACTCA 37
Case: [2014] ACTCA 37
Decision Date: 12 August 2014

CaseChat Overview and Summary

In *R v TW (No 2)*, the Court of Appeal of the Supreme Court of the Australian Capital Territory considered the power of a court to re-open sentencing proceedings. The appeal concerned the sentences imposed on the respondent, TW, for offences relating to child pornography.

The central legal issue before the Court was whether it possessed the power to re-open sentencing proceedings to correct an error, and if so, whether this power extended to both Territory and Commonwealth sentencing matters. A further question arose as to whether the composition of the court re-opening the proceedings needed to be identical to the court that originally imposed the sentence.

The Court affirmed that it had the power to re-open sentencing proceedings to correct an error, a power applicable to both Territory and Commonwealth sentencing proceedings. It was held that the composition of the court re-examining the sentence did not need to be the same as the court that initially imposed it. The Court found that an error had occurred in the original sentencing and proceeded to amend the sentences imposed on counts 11 and 12 of the indictment.

Consequently, the Court ordered that the sentence for using a carriage service to access child pornography be amended to imprisonment for one year and four months, commencing on 18 March 2014 and ending on 17 July 2015. The sentence for using a carriage service to distribute child pornography was amended to imprisonment for two years and two months, commencing on 18 July 2015 and ending on 17 September 2017.

Orders

Orders of the court

The court orders that the sentences imposed on 17 November 2011 on counts 11 and 12 of the indictment be amended as follows:

(a) For the offence of using a carriage service to access child pornography, imprisonment for one year and four months to commence on 18 March 2014 and end on 17 July 2015;

(b) For the offence of using a carriage service to distribute child pornography, imprisonment for two years and two months to commence on 18 July 2015 and end on 17 September 2017.

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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