Warne v The Queen

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.