Devine v The Queen [1967] HCA 35

High Court of Australia McTiernan A.C.J. Kitto, Taylor, Windeyer and Owen JJ. Devine v The Queen [1967] HCA 19

ORDER Leave to appeal granted. Appeal allowed. The conviction of the appellant by the Supreme Court of the Australian Capital Territory on 6th April 1967 quashed.

Cur. adv. vult.

The following written reasons for judgment were delivered:—

Oct. 17 McTiernan A.C.J.

The appellant, P. E. Devine, was sentenced in the Supreme Court at Canberra in April 1967 to imprisonment for three years. He was granted leave to appeal against the sentence in August 1967. The argument on the application for leave was treated as the argument for purposes of the appeal. The Court granted leave to appeal and ordered that Devine, who was then in gaol, be released. The publication of the reasons of the Court was deferred.

In May 1965 Devine was charged in the Supreme Court at Canberra with the crime of carnally knowing a girl below the age of consent—a crime for which the offender is liable to ten years penal servitude. Devine pleaded guilty to the indictment and was convicted of the crime.

The information before the judge which he could rightly consider in determining the quantum of punishment showed that the crime was committed in May 1964; that the girl's age was fourteen years and Devine was a few years older; that a love affair had gone on between them for some time before he seduced her; that a baby was born of which he acknowledged he was the father and he was willing to marry the girl in due course. There was also evidence of previous convictions of Devine, none of which was for any sexual offence, and his general character, his education, employment and family circumstances. His Honour considered it appropriate to deal with Devine under s. 20 of the Crimes Act 1914-1960 Cth. The provisions of this section were available by reason of the Interpretation Ordinance. The result was that the judge did not pass a sentence of imprisonment. Instead he ordered that Devine be released on condition that he engaged by a recognizance to be of good behaviour for a period of three years and to appear for sentence when called on to do so. The judge dispensed him from finding sureties. He ordered that conditions be inserted in the recognizance designed to prevent Devine from meeting the girl except at his mother's house on occasions when his mother would be there and to keep him under police supervision. Devine immediately after conviction entered into a recognizance drawn in accordance with the judge's directions and was thereupon released from custody.