The Queen v Ware (a pseudonym)

Case [2022] ACTCA 14


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, 1st 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:

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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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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