Russell Tilley v The Queen (No 2)

[2012] ACTCA 58

RUSSELL TILLEY v THE QUEEN (No 2)
[2012] ACTCA 58 (6 November 2012)

APPEAL AND NEW TRIAL – appeal against sentence – non-parole period – Crimes (Sentencing) Act 2005 (ACT) pt 5.2 – non-parole period cannot “co-terminate” with portion of sentence to be served by periodic detention.

Crimes (Sentencing) Act 2005 (ACT), ss 11(4)(a), 64, pt 5.2

Tilley v The Queen [2012] ACTCA 57
Welch v the Queen [2012] ACTCA 14

EX TEMPORE JUDGMENT

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

No. ACTCA 20 – 2012
No. SCC 17 of 2011

Judges:         Refshauge ACJ, Penfold and Buchanan JJ
Court of Appeal of the Australian Capital Territory
Date:            6 November 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 20 – 2012

)          No. SCC 17 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

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

BETWEEN:RUSSELL TILLEY

Appellant

AND: THE QUEEN

Respondent

ORDER

Judge:  Refshauge ACJ, Penfold and Buchanan JJ
Date:  6 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld in part.

1. The head sentence of two years and nine months imposed on Mr Tilley to commence on 8 November 2011 be confirmed.

1. The non-parole period be set aside.

1. The sentence be directed to be served as follows:

(a)        by full-time custody from 8 November 2011 to 7 November 2012;

(b)        by periodic detention from 8 November 2012 to 7 November 2013;

(c)        Mr Tilley is to report at 7.00 pm on 9 November 2012 to the Symonston Periodic Detention Centre;

(d)        the balance of the sentence is to be suspended on 8  November 2013;

(e)        Mr Tilley is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months with a probation condition that he be under the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him.

IN THE SUPREME COURT OF THE       )          No. ACTCA 20 – 2012

)          No. SCC 17 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

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

BETWEEN:RUSSELL TILLEY

Appellant

AND:THE QUEEN

Respondent

Judges:  Refshauge ACJ, Penfold and Buchanan JJ
Date:  5 November 2012
Place:  Canberra

REASONS FOR JUDGMENT

REFSHAUGE ACJ:

1. I have had this matter re-listed with the authority of Penfold and Buchanan JJ, who sat with me as the Full Court on 5 November 2012, because of a perceived error, we felt, in the sentence, and also because our view was that we should not resentence Mr Tilley without him being present.  I deliver this judgment with the authority of Penfold and Buchanan JJ. 

1. On 5 November 2012, we upheld the appeal in part and resentenced Mr Tilley.  He has been brought to Court today so that the sentence could formally be imposed.  For reasons set out in our judgment on 5 November 2012 (see Tilley v The Queen [2012] ACTCA 57), we indicated that we should impose on Mr Tilley the same sentence as the Court of Appeal imposed on his co-offender, Steven Paul Beattie, in the decision Welch v the Queen [2012] ACTCA 14, and stated in the same terms.

1. In that decision, the second appellant, Steven Beattie, was resentenced by the Court of Appeal after the Court found the primary sentencing judge had erred in failing to take into account Mr Beattie’s prospects for rehabilitation when setting the non-parole period. 

1. In resentencing, the Court upheld the head sentence of two years and nine months, but set aside the non-parole period of one year and nine months and in lieu imposed (at [39]) “a period of full-time imprisonment for one year” to be followed by “a period of one year’s periodic detention thereafter ... with a coterminous non-parole period”.  That was to be the sentence that we proposed to be imposed on Mr Tilley. 

1. Unfortunately, the sentence imposed on Mr Beattie, and therefore on Mr Tilley, does not appear to have been made in accordance with the terms of the Crimes (Sentencing) Act 2005 (ACT). Section 64 of that Act excludes those sentences to be served wholly by periodic detention, or such part of a sentence to be served by periodic detention, from the application of pt 5.2 of the Act, which provides for a non-parole period to be set.

1. The effect of the legislative exclusion is that a non-parole period cannot “co-terminate” with a sentence of imprisonment that is to be served by periodic detention. This is consistent, for example, with s 11(4)(a) of that Act which requires the sentencer to state the end date of any periodic detention to be imposed.

1. Accordingly, the orders of the Court will be varied and the orders will be:

1.          the appeal be upheld in part;

2.          the head sentence of two years and nine months imposed on Mr Tilley to commence on 8 November 2011 be confirmed;

3.          the non-parole period be set aside;

4.          the sentence be directed to be served as follows:

(a)         by full-time custody from 8 November 2011 to 7 November 2012;

(b)        by periodic detention from 8 November 2012 to 7 November 2013;

(c)         Mr Tilley is to report at 7.00 pm on 9 November 2012 to the    Symonston Periodic Detention Centre;

(d)        the balance of the sentence is to be suspended on 8  November 2013;

(e)         Mr Tilley is required to sign an undertaking to comply with the   offender’s good behaviour obligations under the Crimes (Sentence      Administration) Act 2005 (ACT) for a period of 12 months with a probation condition that he be under the supervision of the Director- General or her delegate and obey all reasonable directions of the person delegated to supervise him.

1. On behalf of the Full Court, I will now resentence Mr Tilley accordingly.

   I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date:                     8 January 2013

Counsel for the Appellant:  Mr K Archer   
Solicitor for the Appellant:  BevanSnell Lawyers    

Counsel for the Respondent:  Mr T Jackson
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  6 November 2012
Date of judgment:  6 November 2012