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Walshe v The Queen

Walshe v The Queen

Case [2020] ACTCA 5 7 February 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Walshe v The Queen
Citation:	[2020] ACTCA 5
Hearing Date:	4 February 2020
DecisionDate:	7 February 2020
Before:	Elkaim, Loukas-Karlsson and Bromwich JJ
Decision:	Appeal dismissed.
Catchwords:	APPEAL – APPEAL AGAINST SENTENCE – Manifest excess – revocation of recognizance release order – fresh offences – imposition of suspended term of imprisonment
Legislation Cited:	Crimes Act 1900 (ACT) s 65 Crimes Act 1914 (Cth) Criminal Code (Cth) s 474.19
Cases Cited:	Barrett v The Queen [2016] ACTCA 38 R v Eyles [2018] ACTSC 318 R v Walshe [2016] ACTSC 267 R v Walshe (No 2) [2019] ACTSC 137 Samani v The Queen [2017] ACTCA 23 Sweeney v Corporate Security Group [2003] SASC 324
Parties:	David William Walshe (Appellant) The Queen (Respondent)
Representation:	Counsel Self-represented (Appellant) J Paingakulam (Respondent)
Solicitors Self-represented (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
File Number:	AC 17 of 2019
Decision under appeal:	Court: Supreme Court of the ACT Before: Burns J Date of Decision: 17 April 2019 Case Title: R v Walshe (No 2) Citation: [2019] ACTSC 137

THE COURT:

On 17 April 2019 the appellant appeared before Burns J to be dealt with for breach of a Recognizance Release Order. His Honour revoked the Order and imposed a term of imprisonment of 15 months commencing on 28 February 2019 and expiring on 27 May 2020.

The appellant, by an appeal filed on 15 May 2019, says this sentence was manifestly excessive.

Some background is necessary: On 3 August 2016, following a hearing on 27 July 2016, Burns J sentenced the appellant for two offences (R v Walshe [2016] ACTSC 267).

The first was an offence of using a carriage service for the transmission of child pornography material. This was contrary to s 474.19(1)(a)(ii) of the Criminal Code (Cth), as it then was.

The second was possessing child pornography contrary to s 65 of the Crimes Act 1900 (ACT).

Final orders were made by his Honour on 5 August 2016:

(a)With respect to the ACT charge of possession (CC15/9427), you will be convicted and sentenced to a term of 18 months imprisonment commencing on 30 September 2015 and expiring on 29 March 2017.
(b)With respect to the Commonwealth charge (CC15/9428), you will be convicted and sentenced to term of 28 months imprisonment commencing on 30 March 2016 and expiring on 29 July 2018.
(i) The period commencing on 30 March 2016 and expiring on 29 April 2017 will be served by way of full-time imprisonment, with the balance suspended upon you entering into a recognizance in the sum of $500 to be of good behaviour for 3 years from 30 April 2017 with the following conditions:
i. you accept the supervision of ACT Corrective Services or its delegates for a period of 3 years or such lesser period as deemed appropriate by a supervising officer; and
ii. you undertake such assessments, programs or treatment as directed by ACT Corrective Services, particularly to…

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 Walshe v The Queen

Details

AGLC: Walshe v The Queen [2020] ACTCA 5
Case: [2020] ACTCA 5
Decision Date: 7 February 2020

CaseChat Overview and Summary

The appeal concerned the appellant, Walshe, and the respondent, The Queen, before the Court of Criminal Appeal of New South Wales. The dispute arose from the revocation of a recognizance release order and the subsequent imposition of a suspended term of imprisonment following fresh offences committed by the appellant.

The central legal issue before the Court was whether the sentence imposed by the sentencing judge constituted a manifest excess, thereby justifying appellate intervention. This required the Court to consider the appropriateness of the suspended term of imprisonment in light of the appellant's conduct and the circumstances surrounding the revocation of his release order.

The Court reasoned that the sentencing judge had properly taken into account all relevant factors, including the commission of fresh offences while on a recognizance release order. The imposition of a suspended term of imprisonment was found to be a proportionate response to the appellant's breach of the order and the gravity of the new offences. The Court applied the principles of sentencing, emphasizing the need to deter further offending and to reflect the seriousness of the appellant's actions.

The appeal was accordingly dismissed.

Orders

Orders of the court

Appeal dismissed.

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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Citations

AGLC Citation

Walshe v The Queen [2020] ACTCA 5

Most Recent Citation

Kajevic v Noble [2021] ACTSC 67

Cases citing this decision · 3 of 3 shown

R v Lawrence
[2022] ACTSC 19 Para 1

…It is important to recognise the principles of parity when sentencing this offender. In Apps v The Queen [2020] ACTCA 5 the following was said about parity at [29]:…
Grey v The Queen
[2022] ACTCA 2

…02) 212 CLR 124; [2002] HCA 46 Tully v The Queen [2016] ACTCA 4 Veen v The Queen (No 2) [1998] HCA 14; 164 CLR 465 Walshe v The Queen [2020] ACTCA 5 Weininger v The Queen [2003] HCA 14; 212 CLR 629 White v R [2019] NSWCCA 168 Wyper v R,· R v Wyper [2017] ACTCA 59 Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1 ZA v…
Kajevic v Noble
[2021] ACTSC 67

…Wells v Mount [2020] ACTSC 333 Walshe v The Queen [2020] ACTCA 5 Wong v The Queen [2001] HCA 64; 207 CLR 584 ZL v Corey [2020] ACTSC 143…

View all 3 citing cases →

Cases cited in this decision · 15 of 15 shown

R v Walshe
[2019] ACTSC 137 Para 1

…possessed child exploitation material, contrary to s 65 of the Crimes Act 1900 (ACT). In the breach proceedings on 17 April 2019 ( R v Walshe (No 2) [2019] ACTSC 137) Burns J described the pornography offence in this way:…
R v Eyles
[2018] ACTSC 318 Para 1

…As stated by the Chief Justice in R v Eyles [2018] ACTSC 318, at [19], “all offences of failing to report details are serious offences”.…
Samani v The Queen
[2017] ACTCA 23 Para 1

…applying to whether or not a sentence is manifestly excessive are well‑known. Nevertheless it is worth quoting this summary from Samani v The Queen [2017] ACTCA 23 at [15] – [16]:…
R v AB
[2017] NSWCCA 88

…16. In R v AB [2017] NSWCCA 88, the New South Wales Court of Criminal Appeal, at paragraphs [57] and [58], described the principles in this way: The principles on which an appellate court will determine that a sentence is manifestly excessive or inadequate are well-established. An appellate court is not entitled to…
Zdravkovic v The Queen
[2016] ACTCA 53

…15. In Zdravokovic v The Queen [2016] ACTCA 53, the ACT Court of Appeal, at paragraphs [51] and [52], made the following remarks about identifying manifestly excessive sentences: A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred…
Barrett v The Queen
[2016] ACTCA 38 Para 1

…In Barrett v The Queen [2016] ACTCA 38, the Court made this practical observation at [34]:…
R v Walshe
[2016] ACTSC 267 Para 1

…Some background is necessary: On 3 August 2016, following a hearing on 27 July 2016, Burns J sentenced the appellant for two offences ( R v Walshe [2016] ACTSC 267).…
Balthazaar v The Queen
[2012] ACTCA 26 Para 61

…ppeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaar v The Queen [2012] ACTCA 26 at [61]. When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered;…
Hili v The Queen
[2010] HCA 45

…er taking all relevant matters into account: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60].…
Jones v The Queen
[2010] NZCA 119 Para 6

…plainly unjust after taking all relevant matters into account: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60].…
Markarian v The Queen
[2005] HCA 25 Para 31

…rst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentenc…
Sweeney v Corporate Security Group
[2003] SASC 324 Para 1

…While the punishment given by the Chief Magistrate for the two new offences was relevant ( Sweeney v Corporate Security Group [2003] SASC 324 at [162]), it was not the dominant feature in sentencing. Much more important, also as stated in Sweeney at [169], was this:…
Dinsdale v The Queen
[2000] HCA 54

…rror may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sent…
Lowndes v The Queen
[1999] HCA 299

…pellate court is not entitled to interfere with the exercise of the sentencing discretion merely because it would have arrived at a different result: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. For a sentence to be set aside as being manifestly inadequate, it must be unreasonable or plainly unjust after ta…
[1999] HCA 29
[1999] HCA 29 Para 15

…re with the exercise of the sentencing discretion merely because it would have arrived at a different result: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. For a sentence to be set aside as being manifestly inadequate, it must be unreasonable or plainly unjust after taking all relevant matters i…

Legislation cited in this decision · 2

Crimes Act 1900 (ACT)
65 2 mentions (from Para 1)
Crimes Act 1914 (Cth)
1 mention (from Para 1)