High Court of Australia
HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, HAYNE, CALLINAN AND HEYDON JJ
GLORIA JEANETTE YORK APPELLANT
AND
THE QUEEN RESPONDENT
York v The Queen
[2005] HCA 60
6 October 2005
B79/2004
ORDER
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 8 October 2004 and in their place order that the appeal to that Court be dismissed.
On appeal from the Supreme Court of Queensland
Representation:
B W Walker SC with A J Kimmins for the appellant (instructed by Ryan & Bosscher Lawyers)
M J Copley for the respondent (instructed by Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
York v The Queen
Criminal law – Sentencing – Appellant pleaded guilty to serious drug offences – Appellant cooperated with prosecuting authorities to secure murder conviction – Evidence that the appellant's life would be endangered in prison – Appellant sentenced at first instance to a wholly suspended term of imprisonment because of that risk – Attorney-General's appeal alleging the sentence was manifestly inadequate – Court of Appeal re-sentenced the appellant to serve a term of actual imprisonment – Whether appropriate to wholly suspend sentence – Whether sentencing judge entitled to take into account risk to appellant's safety whilst serving a term of imprisonment.
Criminal Code (Q), ss 669A(1), 671B
Penalties and Sentences Act 1992 (Q), s 9
Criminal Code (WA), s 689(3)
Words and Phrases – "unfettered discretion".
1. GLEESON CJ. On a Crown appeal, the Court of Appeal of Queensland, by majority (Williams JA and Cullinane J, White J dissenting) and "[n]ot without serious hesitation", intervened in an exercise of sentencing discretion by Atkinson J. The primary judge, in what she described as a "most unusual case" sentenced the appellant to imprisonment for five years and suspended the sentence. She added:
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