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Will v The Queen (No 2)

Will v The Queen (No 2)

Case [2021] ACTCA 14 2 June 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Will v The Queen (No 2)
Citation:	[2021] ACTCA 14
Hearing Date:	17 February 2021
DecisionDate:	2 June 2021
Before:	Murrell CJ, Loukas-Karlsson and Charlesworth JJ
Decision:	Appeal dismissed.
Catchwords:	APPEAL – CRIMINAL LAW – Sentence – Discount for assistance to law enforcement – Whether evidence given by appellant under subpoena constitutes assistance to law enforcement – Whether Director of Public Prosecutions a “law enforcement authority” – Whether sentence manifestly excessive – Aid or abet aggravated robbery
Legislation Cited:	Australian Crime Commission Act 2002 (Cth) Australian Securities and Investments Commission Act 2001 (Cth) s 19 Corrections Management Act 2007 (ACT) Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 Crimes (Sentencing) Act 2005 (ACT) ss 33, 35A, 36, 37 Crimes Act 1914 (Cth) s 16A(2)(h) Evidence Act 2011 (ACT) s 128 Legislation Act 2001 (ACT) ss 138, 139, 140, 141, 142 Spent Convictions Act2000 (ACT) Tax Administration Act 1953 (Cth) div 355
Cases Cited:	2 Elizabeth Bay Road Pty Ltd v The Owners Strata Plan No 73943 [2014] NSWCA 409; 88 NSWLR 488 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Apps v The Queen [2020] ACTCA 53 Aubrey v The Queen [2017] HCA 18; 260 CLR 305 Beckwith v R (1976) 135 CLR 569 CIC Insurance Ltd v Bankstown Football Club ltd (1997) 187 CLR 384 CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346 Commissioner for ACT Revenue v Dataflex Pty Ltd and ACAT [2011] ACTCA 14; 5 ACTLR 271 Federal Commissioner of Taxation v Consolidated Media Holdings Limited [2012] HCA 55; 250 CLR 503 Geddes v The Queen [2012] NSWCCA 94 House of Pearce Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Kuzmanovski v NSW Lotteries Corporation [2010] FCA 876; 270 ALR 65 Lee v The Queen [2014] HCA 20; 253 CLR 455 Lowe v TheQueen (1984) 154 CLR 606 Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 Munro v The Queen [2014] ACTCA 11 North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 Prelipceanu v The Queen [2016] NSWCCA 280 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Cartwright (1989) 17 NSWLR 243 R v El Sayed [2003] NSWCCA 232; 57 NSWLR 659 R v Ellis (1986) 6 NSWLR 603 R v Falconer [2018] NSWSC 1765 R v Gallagher (1991) 23 NSWLR 220 R v HBZ [2020] QCA 73; 4 QR 171 R v Kevenaar [2004] NSWCCA 210; 148 A Crim R 155 R v Lavender [2005] HCA 37; 222 CLR 67 R v Mark Munro (Supreme Court of…

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 Will v The Queen (No 2)

Details

AGLC: Will v The Queen (No 2) [2021] ACTCA 14
Case: [2021] ACTCA 14
Decision Date

CaseChat Overview and Summary

The appellant, David Allen Will, appealed to the Supreme Court of the Australian Capital Territory against a sentence imposed by Mossop J. The appeal concerned the sentence for aiding, abetting, counselling, or procuring an aggravated robbery committed by others on 10 May 2004. The sentencing judge had imposed a term of 10 years and 10 months imprisonment, with a non-parole period of six years. The appellant sought to introduce further evidence relating to his declining health and the impact of incarceration, particularly during the COVID-19 pandemic, which may be relevant to any resentencing.

The appeal raised two substantive legal issues for determination by the Court. Firstly, the Court was required to consider whether evidence given by the appellant under subpoena constituted "assistance to law enforcement authorities" for the purposes of a sentence discount. Secondly, the Court had to determine whether the Director of Public Prosecutions qualified as a "law enforcement authority" in this context. The appellant also contended that the sentence imposed was manifestly excessive.

The Court considered the provisions of s 16A(2)(h) of the Crimes Act 1914 (Cth) and s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allow for a reduction in sentence for assistance to law enforcement authorities. The Court noted that the appellant had provided evidence under subpoena in separate proceedings. The central question was whether this compelled evidence, given under a form of immunity from prosecution for the evidence itself, could be characterised as voluntary assistance to law enforcement. The Court also examined the definition and scope of "law enforcement authority" in the relevant legislative framework, considering whether the Director of Public Prosecutions fell within that definition. The Court ultimately found that the evidence given under subpoena did not constitute assistance to law enforcement for the purpose of a sentence discount, and therefore, the sentencing judge had not erred in failing to apply such a discount. The Court also found that the sentence imposed was not manifestly excessive.

The appeal was dismissed.

Orders