In this case, Greg Walsh acted for AB, who had been sentenced by a District Court Judge in circumstances involving 67 offences with school children who were under the Offender’s care. The Offender was sentenced to 18 years imprisonment. The principle ground of appeal that the sentence was manifestly excessive and, in particular, that the Trial Judge failed to give sufficient weight to the fact that of the 67 charges, 39 of them were made possible only because after he had been extradited to Australia, he “expressly waived his rights under the Extradition Treaty” to return to the United States without these 39 charges being laid against him.
The NSW Court of Criminal Appeal upheld the sentence and leave was granted to appeal to the High Court of Australia.
Greg Walsh swore an affidavit deposing to AB disclosing, after he returned to Australia, that he committed a number of other counts of sexual assault involving other persons. Such information was based upon instructions disclosed to Detective Sergeant Magann and Ms Pheils of the ODPP. As a result, police attended upon the Offender at Long Bay Correctional Centre on 25 May 1996 and a number of other offences were disclosed by the Offender.
Greg Walsh appeared for the Offender before the Sentencing Judge and his affidavit was tendered in support of the Appellant’s plea. The affidavit was described as “that which relates to the circumstances of post-extradition offences that was required by the American authorities”.
The Sentencing Judge, Freeman DCJ, noted that the Appellant had pleaded guilty and was entitled to “consideration” for that fact. He also found that, since his return to Australia, to Appellant had been “wholly forthcoming and had not only made admission in relations to those offence in respect of which the warrants were initially issued, but had voluntarily revealed his misconduct in connection with a number of other victims”.
An issue arose as to the circumstances of custody, involving an offender of this nature. The Sentencing Judge did not make any reference to the Appellant having “waived” his entitlement to confine the charges against him to those upon which he had extradited from the United States.
In the NSW Court of Criminal Appeal fond, by majority, that the sentence imposed on the Appellant was within the discretion of the Sentencing Judge.
Gummow and Callinan JJ made reference to the principal of speciality in s.42 of the Act. It was in the context of that Act that Australian prosecuting authorities could not have detained, tried or punished the Appellant for post-extradition offences without the consent of the United States. Nor could the District Court of New South Wales have lawfully convicted the appellant of such offences. Their Honours placed much significance on the Appellant’s “waiver”.
Their Honours held that the case was one of an exceptional type, such that the factual foundation for a point of legal significance was adequately laid before the courts of trial and appeal, so that the failure to perceive the significance of the consideration resulting from the operation of the law is not something that should be laid exclusively at the door of the Appellant.
Their Honours held that specific error had been shown in reasoning of the Court of Criminal Appeal which, in turn, followed in this respect and affirmed the reasoning of Freeman DCJ.
The High Court, by majority, upheld the Appellant’s appeal and he was resentenced by the Court of Criminal Appeal to a minimum term of 12 years.
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