Tully v The Queen

Case [2016] ACTCA 11


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Tully v The Queen

Citation:

[2016] ACTCA 11

Hearing Date:

24 March 2016 and written submissions

DecisionDate:

27 April 2016

Before:

Murrell CJ, Penfold and North JJ

Decision:

Leave granted to appeal against the nonparole period. Sentence dates confirmed or amended in accordance with [36]. Nonparole period of 7 years and 3 months’ imprisonment fixed.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – Concurrence of sentences

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 5606

Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) s 74

Supreme Court Act 1933 (ACT) ss 37N, 37O

Cases Cited:

Allred v The Queen (2015) ACTLR 325

Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59

R v Tully (No 3) [2014] ACTSC 275

Tully v The Queen [2016] ACTCA 4

Parties:

Cameron Flynn Tully (Appellant)

The Queen (Respondent)

Representation:

Counsel

Self-represented (Appellant)

Mr S Drumgold (Respondent)

Solicitors

Self-represented (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 55 of 2014

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Burns J

Date of Decision:         3 October 2014

Case Title:  R v Tully (No 3)

Citation: [2014] ACTSC 275

MURRELL CJ AND NORTH J:

  1. On 6 June 2014, the appellant was found guilty of 18 counts of historical child sexual abuse.  On 3 October 2014, he was sentenced to a total term of 14 years and 6 months’ imprisonment, with a nonparole period of nine years’ imprisonment (62% of the total sentence). The appellant appealed against the convictions. 

  1. On 17 February 2016, the Court set aside the verdicts and sentences relating to counts 1, 2, 3 and 5 and substituted verdicts of not guilty on those counts.  Otherwise, the appeal was dismissed: Tully v The Queen [2016] ACTCA 4.

  1. As a result, the Court must consider the structure of the remaining sentences.  The nonparole period should be varied. 

  1. At a directions hearing on 24 March 2016, it was agreed that the resentencing exercise would proceed on the written summaries of argument that had been filed.

Remaining sentences

  1. The following table sets out the sentences that were imposed by the trial judge.

Count Term of sentence Original dates
19 2 years 8 months 6.6.14 - 5.2.17
21 9 months 6.8.16 - 5.5.17
22 14 months 6.9.16 - 5.11.17
23 2 years 6.7.16 - 5.7.18
1 2 years 6.7.16 - 5.7.18
2 18 months 6.7.17 - 5.1.19
3 2 years 6 months 6.1.17 - 5.7.19
5 3 years 9 months 6.4.17 - 5.1.21
7 12 months 6.7.20 - 5.7.21
9 14 months 6.11.20 - 5.1.22
11 18 months 6.2.21 - 5.8.22
12 3 years 6.5.21 - 5.5.24
13 3 years 10 months 6.7.21 - 5.5.25
14 14 months 6.10.24 - 5.12.25
15 9 months 6.6.25 - 5.3.26
16 14 months 6.8.25 - 5.10.26
17 4 years 6.10.24 - 5.10.28
18 14 months 6.10.27 - 5.12.28
NPP: 7 years…

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Tully v The Queen [2016] ACTCA 11
Case
[2016] ACTCA 11
Decision Date

CaseChat Overview and Summary

The applicants, Tully and others, sought leave to appeal against the non-parole periods imposed by the sentencing judge in the Supreme Court of New South Wales. The dispute concerned the imposition of concurrent sentences for multiple offences, specifically the calculation and application of the non-parole periods. The appeal was heard by Murrell CJ, Penfold and North JJ of the Court of Criminal Appeal of New South Wales.

The primary legal issue before the Court of Criminal Appeal was whether the sentencing judge had erred in fixing the non-parole periods for the applicants, particularly in light of the principle that sentences for different offences should run concurrently. The court was required to consider the cumulative effect of the sentences and the appropriate duration of the non-parole periods to ensure they were just and reflected the totality of the offending.

The Court of Criminal Appeal granted leave to appeal, finding that the original sentencing had resulted in an incorrect calculation of the non-parole periods. The court amended the sentence dates in accordance with its findings and ultimately fixed a non-parole period of 7 years and 3 months' imprisonment for the applicants. This outcome reflects the court's assessment of the appropriate punishment and the totality principle in sentencing.

Orders

Orders of the court

Leave granted to appeal against the nonparole period. Sentence dates confirmed or amended in accordance with [36]. Nonparole period of 7 years and 3 months’ imprisonment fixed.

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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