Will v The Queen (No 2)

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.