SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v UG |
Citation: | [2018] ACTCA 64 |
Hearing Date: | 16 November 2018 |
ReasonsDate: | 11 December 2018 |
Before: | Murrell CJ, Elkaim and Mossop JJ |
Decision: | Appeal allowed. Offender re-sentenced: see [86] and [87]. |
Catchwords: | APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – whether sentences manifestly inadequate APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – principle in R v Ellis (1986) 6 NSWLR 603 – whether the sentencing judge erred by applying the Ellis principle rather than ss 36 and 37 of the Crimes (Sentencing) Act 2005 (ACT). APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – victim impact statements – where the offence does not include an element relating to the victim’s injury – proper consideration of the harm suffered by the victim. APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – proper calculation of sentence terms for multiple offences – O’Brien v The Queen [2015] ACTCA 47 – principle of totality. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54(1), 60(1) Criminal Code 2002 (ACT) ss 311 Supreme Court Act 1933 (ACT) s 37E(2)(a) |
Cases Cited: | AB v The Queen [1999] HCA 46; 198 CLR 111 Miller v The Queen [2014] NSWCCA 34 |
Parties: | The Queen (Appellant) UG (Respondent) |
Representation: | Counsel Mr J White SC (Appellant) Dr A Hopkins (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number: | ACTCA 52 of 2018 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Loukas-Karlsson J Date of Decision: 31 August 2018 Case Title: R v UG Citation: [2018] ACTSC 243 Court File Number: SCC 114 of 2018 |
The Court
In the early hours of 3 March 2018, the respondent entered the victim’s house, went to the bedroom where she was asleep and engaged in sexual activity with her.
On 31 August 2018, Loukas-Karlsson J (the sentencing judge) imposed the following sentences:
(a)Burglary with intent to cause harm: 18 months’ imprisonment from 29 August 2018.
Offence against s 311 of the Criminal Code 2002 (ACT) (Criminal Code), maximum penalty 14 years’ imprisonment.
(b)Sexual intercourse without consent: 15 months’ imprisonment from 28 February 2019.
Offence against s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act), maximum penalty 12 years’ imprisonment.
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- R v UG [2018] ACTCA 64
- Case
- [2018] ACTCA 64
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CaseChat Overview and Summary
The Court of Appeal was required to determine whether the sentencing judge erred in applying the principle established in *R v Ellis* (1986) 6 NSWLR 603, rather than the provisions of ss 36 and 37 of the *Crimes (Sentencing) Act 2005* (ACT). Further issues included the proper consideration of victim impact statements where the offence did not have an element relating to the victim's injury, and the correct calculation of sentence terms for multiple offences, applying the principle of totality as discussed in *O’Brien v The Queen* [2015] ACTCA 47.
The Court found that the sentencing judge had erred in applying the *Ellis* principle and that the provisions of the *Crimes (Sentencing) Act 2005* (ACT) should have been applied. The Court also held that victim impact statements could be considered even where the offence did not involve direct physical injury to the victim, provided the harm suffered was relevant to sentencing. The principle of totality was applied to ensure the aggregate sentence reflected the overall criminality of the offender.
The appeal was allowed, and the offender was re-sentenced.
Orders
Orders of the court
Appeal allowed. Offender re-sentenced: see [86] and [87].
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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