Director of Public Prosecutions v Gleeson (No 2)

Case [2022] ACTSC 311

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Gleeson (No 2)

Citation:

[2022] ACTSC 311

Hearing Date:

10 November 2022

DecisionDate:

10 November 2022

Before:

Elkaim J

Decision:

(a)  For the offence of using a carriage service to transmit indecent communication to a person under 16 years of age (CC2022/6797), the offender is sentenced to one year imprisonment, from 17 February 2022 to 16 February 2023.

(b)  For the offence of sexual intercourse with a child between 10–16 years (CC2022/1536), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 17 February 2023 to 16 August 2025.

(c)   For the offence of sexual intercourse with a child between 10–16 years (CC2022/1539), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 9 May 2024 to 8 November 2026.

(d)  For the offence of sexual intercourse with a child between 10–16 years (CC2022/1540), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 9 May 2025 to 8 November 2027.

(e)  For the offence of using a child between 12–18 years to produce child exploitation material (CC2022/1543), the offender is sentenced to two years’ imprisonment (reduced from 27 months) from 8 May 2026 to 7 May 2028.

(f)    For the offence of contravening a family violence order (CC2022/3823), the offender is sentenced to six months’ imprisonment (reduced from six months and 21 days) from 8 January 2028 to 7 July 2028.

(g)  For the offence of act of indecency in the presence of a person between 10–16 years (CC2022/6798), the offender is sentenced to 11 months’ imprisonment (reduced from 12 months) from 17 February 2023 to 16 January 2024.

(h)  The total period of imprisonment is six years, four months and 21 days imprisonment, from 17 February 2022 to 7 July 2028.

(i) I decline to make a recognisance release order in relation to the offence of using a carriage service to transmit indecent communications to a person under 16 years of age (CC2022/6797), pursuant to s 19AC(4)(b) of the Crimes Act 1914 (Cth).

(j)    I set a Territory non-parole period of two years, six months and seven days from 17 February 2023 to 23 August 2025.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – restructuring of previously imposed sentence – where both Federal and Territory offences – s 19AJ of the Crimes Act 1914

Legislation Cited:

Crimes Act 1914 (Cth) ss 19AC, 19AJ

Parties:

ACT Director of Public Prosecutions

Kaine Michael Gleeson (Offender)

Representation:

Counsel

S Bargwanna (ACT Director of Public Prosecutions)

J Cooper (Offender)

Solicitors

ACT Director of Public Prosecutions

Aboriginal Legal Service (Offender)

File Number:

SCC 179 of 2022

SCC 180 of 2022

Elkaim J:

  1. I sentenced Mr Gleeson yesterday. It has been brought to my attention that the sentencing structure contravenes certain provisions of the Crimes Act 1914 (Cth) (Crimes Act).  

  2. It is accordingly necessary for me to restructure the sentence, which, with the consent of the parties, I will now do.

  3. The new structure has precisely the same outcome in terms of length and effective non-parole period.

  4. As I am unable to impose a single non-parole period for both Territory and Federal offences under s 19AJ of the Crimes Act, it is also necessary for me to make an order to the effect that I decline to make a recognisance release order for the Commonwealth offence of using a carriage service to transmit indecent communications to a person under 16 years of age pursuant to s 19AC(4)(b) of the Crimes Act.

  5. I will impose a two year, six month and seven day non-parole period relating only to the Territory offences, which will commence at the end of the Commonwealth offence, from 17 February 2023 to 23 August 2025. When viewed as if the Commonwealth offence was included, this achieves effectively the same 55 per cent non-parole period of the head sentence and makes the offender eligible for parole on the same date of 23 August 2025. 

  6. I make the following orders:

    (a)For the offence of using a carriage service to transmit indecent communication to a person under 16 years of age (CC2022/6797), the offender is sentenced to one year imprisonment, from 17 February 2022 to 16 February 2023.

    (b)For the offence of sexual intercourse with a child between 10–16 years (CC2022/1536), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 17 February 2023 to 16 August 2025.

    (c)For the offence of sexual intercourse with a child between 10–16 years (CC2022/1539), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 9 May 2024 to 8 November 2026.

    (d)For the offence of sexual intercourse with a child between 10–16 years (CC2022/1540), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 9 May 2025 to 8 November 2027.

    (e)For the offence of using a child between 12–18 years to produce child exploitation material (CC2022/1543), the offender is sentenced to two years’ imprisonment (reduced from 27 months) from 8 May 2026 to 7 May 2028.

    (f)For the offence of contravening a family violence order (CC2022/3823), the offender is sentenced to six months’ imprisonment (reduced from six months and 21 days) from 8 January 2028 to 7 July 2028.

    (g)For the offence of an act of indecency in the presence of a person between 10–16 years (CC2022/6798), the offender is sentenced to 11 months’ imprisonment (reduced from 12 months) from 17 February 2023 to 16 January 2024.

    (h)The total period of imprisonment is six years, four months and 21 days imprisonment, from 17 February 2022 to 7 July 2028.

    (i)I decline to make a recognisance release order in relation to the offence of using a carriage service to transmit indecent communications to a person under 16 years of age (CC2022/6797), pursuant to s 19AC(4)(b) of the Crimes Act 1914.

    (j)I set a Territory non-parole period of two years, six months and seven days from 17 February 2023 to 23 August 2025.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date:
Details
AGLC
Director of Public Prosecutions v Gleeson (No 2) [2022] ACTSC 311
Case
[2022] ACTSC 311
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions brought an application against the accused, Gleeson, to restructure his previously imposed sentence following convictions for a range of serious criminal offences. The case was heard in the Supreme Court of the Northern Territory, which had jurisdiction to review and restructure Gleeson's sentence under section 19AJ of the Crimes Act 1914 (Cth). Gleeson had been sentenced to various terms of imprisonment for offences including using a carriage service to transmit indecent communications to a person under 16 years of age, sexual intercourse with a child between 10–16 years, using a child between 12–18 years to produce child exploitation material, and contravening a family violence order.

The central legal issue before the court was whether Gleeson's sentences could be restructured to ensure they were served concurrently, rather than consecutively. Gleeson argued that the cumulative effect of the sentences was unjust and disproportionate. The court considered the principles of sentencing, including the need to ensure that the punishment fits the crime and the offender, and the appropriateness of concurrent versus consecutive sentences in the circumstances. The court also had to consider whether the restructuring would comply with the requirements of section 19AJ of the Crimes Act 1914 (Cth).

The court decided that Gleeson's sentences could be restructured to run concurrently, except for the sentence for using a carriage service to transmit indecent communications to a person under 16 years of age, which was to be served consecutively to the other sentences. The court found that restructuring the sentences in this manner would better reflect the appropriate punishment for the offences committed and would not unduly prejudice the public interest. The court set new sentences and non-parole periods for each offence, ensuring that the total period of imprisonment was appropriate and proportionate to the severity of the crimes. The court also declined to make a recognisance release order in relation to one of the offences, finding it was not in the interests of justice to do so.

Orders

Orders of the court

(a) For the offence of using a carriage service to transmit indecent communication to a person under 16 years of age (CC2022/6797), the offender is sentenced to one year imprisonment, from 17 February 2022 to 16 February 2023.

(b) For the offence of sexual intercourse with a child between 10–16 years (CC2022/1536), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 17 February 2023 to 16 August 2025.

(c) For the offence of sexual intercourse with a child between 10–16 years (CC2022/1539), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 9 May 2024 to 8 November 2026.

(d) For the offence of sexual intercourse with a child between 10–16 years (CC2022/1540), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 9 May 2025 to 8 November 2027.

(e) For the offence of using a child between 12–18 years to produce child exploitation material (CC2022/1543), the offender is sentenced to two years’ imprisonment (reduced from 27 months) from 8 May 2026 to 7 May 2028.

(f) For the offence of contravening a family violence order (CC2022/3823), the offender is sentenced to six months’ imprisonment (reduced from six months and 21 days) from 8 January 2028 to 7 July 2028.

(g) For the offence of act of indecency in the presence of a person between 10–16 years (CC2022/6798), the offender is sentenced to 11 months’ imprisonment (reduced from 12 months) from 17 February 2023 to 16 January 2024.

(h) The total period of imprisonment is six years, four months and 21 days imprisonment, from 17 February 2022 to 7 July 2028.

(i) I decline to make a recognisance release order in relation to the offence of using a carriage service to transmit indecent communications to a person under 16 years of age (CC2022/6797), pursuant to s 19AC(4)(b) of the Crimes Act 1914 (Cth).

(j) I set a Territory non-parole period of two years, six months and seven days from 17 February 2023 to 23 August 2025.

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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