APPEAL – Sentence – whether the sentencing judge took into
account facts which were not properly attributable to the
offences charged – whether the sentence imposed was manifestly excessive – whether concurrency and accumulation was within range – error not established – appeal dismissed
Legislation Cited:
Criminal Code 2002 (ACT) Dictionary (definition of ‘offensive
1. On 10 February 2020, after pleading guilty to nine offences, the appellant was
sentenced to an aggregate sentence of seven years and eight months’ imprisonment, from 4 March 2019 to 3 November 2026. A nonparole period of 50 months’
imprisonment was imposed, from 4 March 2019 to 3 May 2023.
2. The sentencing judge imposed the following individual sentences:
Incident 1
(a)
for burglary between 8 and 22 February 2019 (CC2019/8085) at Gungahlin, a
sentence of 29 months’ imprisonment, from 4 March 2019 to 3 August 2021;
(b)
for theft between 8 and 22 February 2019 (CC 2019/8135) at the same
premises, a sentence of 10 months’ imprisonment, from 4 December 2020 to 3
October 2021;
Incident 2
(c)
for obtaining property by deception between 22 and 23 February 2019 (CC
2019/2798), a sentence of 10 months’ imprisonment, from 4 June 2021 to 3
April 2022;
Incident 3
(d)
for burglary on 2 March 2019 (CC 2019/8904) at Ainslie, a sentence…
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.
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Details
AGLC
Tracey v The Queen [2020] ACTCA 51
Case
[2020] ACTCA 51
Decision Date
CaseChat Overview and Summary
The appeal in *Tracey v The Queen* was brought by the applicant, Tracey, against the sentencing decision of the sentencing judge. The specific nature of the dispute concerned the sentence imposed, with the applicant arguing that the sentencing judge had erred in their determination. The appeal was heard by the Supreme Court of New South Wales, comprising Murrell CJ, Burns and Abraham JJ.
The central legal issue before the Court was whether the sentencing judge had properly considered all relevant factors when imposing the sentence. This involved an examination of the principles of sentencing under Australian law, particularly concerning the weight given to various aggravating and mitigating circumstances. The Court was required to assess if the sentencing judge had applied these principles correctly and if the resulting sentence was demonstrably unjust or disproportionate.
The Court of Appeal ultimately dismissed the appeal. Their Honours found no error in the sentencing judge's approach, concluding that the judge had adequately taken into account the relevant considerations in imposing the sentence. The principles of sentencing were applied appropriately, and the sentence was deemed to be within the proper exercise of the sentencing judge's discretion.