Legal Research
Cases
Warne v The Queen

Warne v The Queen

Case [2022] ACTCA 35 7 July 2022

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Warne v The Queen
Citation:	[2022] ACTCA 35
Hearing Date:	7 July 2022
DecisionDate:	7 July 2022
Before:	Elkaim J
Decision:	(i) The sentence imposed on the applicant on 1 June 2022 is stayed pending the hearing of his appeal. (ii) The applicant is granted bail on the following conditions: (a) To reside at [redacted]; (b) Not to go within 100 metres of [redacted]; (c) Not to contact, directly or indirectly, [redacted]; (d) Not to threaten, harass, menace, intimidate or offend against [redacted]; (e) Not to go within 100 metres of [redacted]; (f) Not to go within 100 metres of any international point of departure; (g) Not to leave the Australian Capital Territory; (h) To report to Woden Police Station every Monday, Thursday and Saturday; (i) To accept the supervision of the ACT Corrective Services.
Catchwords:	APPEAL – APPLICATION – Where the applicant seeks a stay of his sentence – where the applicant seeks bail pending his Court of Appeal hearing – disparity in sentencing between co-offenders – operation of s 11(3) of the Crimes (Sentencing) Act 2005 (ACT – sentence stayed – bail granted
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 11
Cases Cited:	R v Andy [2022] ACTSC 54 Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290
Parties:	Alexander Douglas Jeremy Warne ( Appellant) The Queen ( Respondent)
Representation:	Counsel C O’Neill ( Appellant) K McCann ( Respondent)
Solicitors Hugo Law Group ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	ACTCA 11 of 2022
Decision under appeal:	Court/Tribunal: Supreme Court Before: Walmsley AJ Date of Decision: 1 June 2020 Case Title: R v Warne Court File Number: SCC 246 of 2020

Elkaim J:

On 21 February 2022 the applicant came to trial before a judge (Walmsley AJ) and a jury facing three charges: one count of aggravated burglary by joint commission, one count of property damage by joint commission and one count of theft by joint commission. He was found guilty on the first two charges and not guilty on the third.

Following the findings of guilt, the presiding judge revoked the applicant’s bail. The applicant had been on bail since 20 November 2020.

On 5 April 2022 the applicant filed a notice of appeal challenging his conviction.

On 1 June 2022 the applicant was sentenced to a total period of two years and six months imprisonment with a non-parole period of 15 months commencing on 16 December 2021.

On 9 June 2022 an amended notice of appeal was filed to include an appeal against sentence.

On 4 July 2022 the applicant filed an application in proceeding seeking a stay of his sentence. On the same date he filed an application for bail pending his Court of Appeal hearing. The applications are supported by an affidavit of his solicitor, Mr Thomas Xavier Taylor, affirmed on 30 June 2022.

The principles for an application for bail in these circumstances…

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 Warne v The Queen

Details

AGLC: Warne v The Queen [2022] ACTCA 35
Case: [2022] ACTCA 35
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Alexander Douglas Jeremy Warne (the applicant) for a stay of his sentence and for bail pending his appeal against conviction and sentence. The applicant had been found guilty by a jury of aggravated burglary and property damage, and subsequently sentenced to two years and six months imprisonment with a non-parole period of 15 months. The applications were heard in the Supreme Court of the Australian Capital Territory.

The legal issues before the Court were whether the applicant had demonstrated "special or exceptional circumstances" to justify the grant of bail pending appeal, and whether a stay of his sentence should be granted. In determining these issues, the Court was required to consider the principles established in cases such as *Sherd v The Queen*, which outline that a substantial portion of the custodial sentence being served before the appeal is heard can constitute an exceptional circumstance. The Court also had to assess the prospects of success of the applicant's appeal, particularly concerning the grounds relating to the alleged disparity in sentencing between co-offenders and the failure to consider an intensive corrections order.

The Court reasoned that a significant disparity existed between the applicant's sentence and that of a co-offender, Mr Damien Andy, who received a similar head sentence but had it suspended after serving approximately five months in custody. While the Crown argued that Mr Andy's plea of guilty and assistance to authorities justified the difference, the applicant contended that the subjective differences between the offenders, including the applicant's lesser involvement and criminal record, were not adequately considered. The Court noted that the appeal against sentence was considered to have strong prospects of success, particularly regarding the parity argument and the alleged failure to consider mandatory requirements for an intensive corrections order under s 11(3) of the *Crimes (Sentencing) Act 2005* (ACT).

The Court ordered that the sentence imposed on the applicant be stayed pending the hearing of his appeal. Furthermore, the applicant was granted bail subject to a range of conditions, including residing at a specified address, not attending certain locations, not contacting specific individuals, not leaving the Australian Capital Territory, and reporting to police regularly.

Orders