Douran v Whisker [1946] HCA 9

Douran v Whisker [1946] HCA 9

The appellant was entitled to an appeal as of right to the High Court against the sentence imposed under s. 501 of the Crimes Act, as the procedure was summary and s. 6 of the Appeal Ordinance does not preclude such an appeal. The sentence was unlawful in so far as it imposed a fine with an alternative of twelve months' imprisonment; only one penalty could be imposed under s. 501, and the law of Norfolk Island limited imprisonment in default to three months. The High Court varied the sentence accordingly.

Parties
Appellant: Richard Douran; Informant/respondent: Constable Whisker
Jurisdiction
Australia
Procedural Posture
Criminal Appeal / Appeal From the Court of Norfolk Island (full Jurisdiction) to the High Court of Australia
Outcome
sentence varied; appeal otherwise dismissed
Legal Topics
Larceny, Summary Jurisdiction, Sentencing, Jurisdiction of High Court, Norfolk Island Magistracy, Error on Face of Proceedings
Criminal Law Territories Law Appeal Procedure Larceny Summary Jurisdiction Sentencing Jurisdiction of High Court Norfolk Island Magistracy +1 more

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Parties

Richard Douran

Appellant

Constable Whisker

Informant/respondent

Procedural Posture

Criminal Appeal / Appeal From the Court of Norfolk Island (full Jurisdiction) to the High Court of Australia

Legal Issues

  1. 1 Whether an appeal lies as of right to the High Court from a sentence imposed summarily for an indictable offence under s. 501 of the Crimes Act 1900-1935 (N.S.W.) as applied to Norfolk Island.
  2. 2 Whether the sentence imposed—a fine of £50 with the alternative of 12 months' imprisonment—is lawful under the applicable legislation.
  3. 3 Whether s. 6 of the Appeal Ordinance 1919-1936 (Norfolk Island) precluded an appeal as of right in the circumstances.

Ratio Decidendi

The appellant was entitled to an appeal as of right to the High Court against the sentence imposed under s. 501 of the Crimes Act, as the procedure was summary and s. 6 of the Appeal Ordinance does not preclude such an appeal. The sentence was unlawful in so far as it imposed a fine with an alternative of twelve months' imprisonment; only one penalty could be imposed under s. 501, and the law of Norfolk Island limited imprisonment in default to three months. The High Court varied the sentence accordingly.

Court Disposition

sentence varied; appeal otherwise dismissed

Orders

  • Sentence varied to a fine of £50, in default of payment within one month to be recovered by distress and, in default of sufficient distress, defendant to be imprisoned for three months.
  • Appeal otherwise dismissed.