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The Queen v Ware (a pseudonym)

The Queen v Ware (a pseudonym)

Case [2022] ACTCA 14 25 March 2022

Appeal

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Manifest Inadequacy

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	The Queen v Ware (a pseudonym)
Citation:	[2022] ACTCA 14
Hearing Date:	15 February 2022
DecisionDate:	25 March 2022
Before:	Elkaim ACJ, McWilliam and Walmsley AJJ
Decision:	See [115]
Catchwords:	APPEAL - CRIMINAL LAW – Crown appeal against sentence – maintain sexual relationship with young person – consideration of the maximum penalty that applies to the offence pursuant to section 56(6) of the Crimes Act 1900 (ACT) – operation of Human Rights Act 2001 (ACT) s 25 on maximum penalty – operation of Legislation Act 2001 (ACT) s 84A – whether sentence manifestly inadequate – whether residual discretion to decline to intervene should be exercised
Legislation Cited:	Crimes (Amendment) Act (No 3) 1991 (ACT) Crimes Act 1900 (ACT) ss 56, 92K, 92EA Crimes Act 1914 (Cth) s 4F Crimes Legislation Amendment Act 2018 (ACT) European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) art 7 Human Rights Act 2004 (ACT) ss 25, 30 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 15 Legislation Act 2001 (ACT) ss 5, 6, 84A, 139, 140, 141, 142 Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) Supreme Court Act 1933 (ACT) s 37O
Cases Cited:	Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions v Raddino [2002] VSCA 66; 128 A Crim R 437 Director of Public Prosecutions v Toomey [2006] VSCA 90 JWM v Tasmania [2017] TASCCA 22; 27 Tas R 365 KN v The Queen [2019] ACTCA 37; 14 ACTLR 289 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 R v EN [2019] ACTSC 354 R v Field [2003] 1 WLR 882 R v Kellan (a pseudonym) [2021] ACTSC 314 R v PM [2009] ACTSC 24 R v Scheeren [2014] ACTSC 272 R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 R v WR (no 5) [2015] ACTSC 258 The Queen v Lindsay [2020] ACTCA 25 The Queen v TW [2011] ACTCA 25; 6 ACTLR 18 Welch v United Kingdom (1995) 20 EHRR 247
Texts Cited:	Explanatory Statement. Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT) Tom Bingham, The Rule of Law (Penguin Books UK, 1^st ed, 2011)
Parties:	The Queen ( Appellant) Irving Ware (a pseudonym) ( Respondent)
Representation:	Counsel R Christensen SC with C Muthurajah ( Appellant) J White SC ( Respondent)
Solicitors ACT Director of Public Prosecutions ( Appellant) Legal Aid ACT ( Respondent)
File Number:	ACTCA 40 of 2021
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Burns J Date of Decision: 28 July 2021 Case Title: R v Ware (a pseudonym) Citation: [2021] ACTSC 180

THE 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 The Queen v Ware (a pseudonym)

Details

AGLC: The Queen v Ware (a pseudonym) [2022] ACTCA 14
Case: [2022] ACTCA 14
Decision Date

CaseChat Overview and Summary

The Court of Appeal was asked to decide whether the sentence imposed by Burns J on Irving Ware (a pseudonym) was manifestly inadequate and, if so, whether it should be set aside and the respondent resentenced. The Court found that the sentence was manifestly inadequate and should be set aside and replaced with a sentence of four years and 10 months’ imprisonment with a non-parole period of two years and six months. The Court found the maximum penalty for the offence of maintaining a sexual relationship with a child to be 14 years, not 25 years as argued by the Crown. The Court also found the sentence manifestly inadequate given the objective seriousness of the offence and the devastating impact on the victim. The Court did not consider it appropriate to provide an authoritative statement of principle as to the factors a sentencing judge ought to take into account for a s 56 offence when considering objective criminality.

Orders