Britten v The Queen - [2002] WASCA 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BRITTEN -v- THE QUEEN [2002] WASCA 234

CORAM: MURRAY J
TEMPLEMAN J
MILLER J

HEARD: 26 JULY 2002

DELIVERED : 28 AUGUST 2002

FILE NO/S: CCA 179 of 2001

BETWEEN: CARL BRITTEN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Application for leave to appeal against order for indefinite imprisonment and ineligibility for parole

Legislation:

Sentence Administration Act 1999 (WA)

Sentencing Act 1995 (WA)

Result:

Leave to appeal refused

Category: A

Representation:

Counsel:

Applicant: Mr I G Weldon
Respondent: Mr D Dempster

Solicitors:

Applicant: Gary Massey & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Chester v The Queen (1988) 165 CLR 611
McGarry v The Queen (2001) 184 ALR 225
Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Garlett v The Queen [2000] WASCA 72
Narrier v The Queen [2000] WASCA 86
R v Moffat [1988] 2 VR 229
Veen v The Queen (No 2) (1988) 164 CLR 465

MURRAY J: I have had the advantage of reading in draft the reasons for decision now published by Templeman J with which I entirely agree.
I wish only to add a few brief observations. Ground 3 complained about the receipt into evidence of a report of the psychiatrist, Dr Srna. I need not set out the way in which the ground was particularised. Counsel informed us that the ground was not abandoned but was not pressed. In my opinion, the ground might well have been abandoned. It is without merit.
The other observation which I wish to make concerns grounds 2 and 4 insofar as they complain about the order made for the applicant's indefinite imprisonment and the relationship of such an order to the question of the consideration of eligibility for parole in respect of the imposition of a finite term of imprisonment, described in s 98(1) of the Sentencing Act 1995 (WA) as the "nominal sentence". By s 98(1)(c), indefinite imprisonment may only be ordered if a parole eligibility order is not made in respect of the finite term of imprisonment.
A parole eligibility order will be made having regard to the criteria contained in s 89(2) and it will be refused in the exercise of the Court's discretion, if, having regard to all relevant criteria, there is nothing in the case which points affirmatively towards the exercise of the discretion to grant parole: Thompson v The Queen (1992) 8 WAR 387, 395 – 6. Included in the relevant considerations are those described in s 89(2)(d), the circumstances relevant to the offender as they may be at the time when he or she would be eligible for release on parole if a parole eligibility order were made. So, as it was put in Thompson, there is an element of prognostication in this decision.
Kennedy DCJ declined to make the parole eligibility order in relation to the sentences aggregating 9…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Britten v The Queen

Details

AGLC: Britten v The Queen [2002] WASCA 234
Case: [2002] WASCA 234
Decision Date: 28 AUGUST 2002

CaseChat Overview and Summary

The case of Britten v The Queen involved the appellant, Britten, who sought leave to appeal against an order for indefinite imprisonment and ineligibility for parole. The legal dispute centred on the validity and constitutionality of the order, and whether the appellant was entitled to the relief sought. The High Court of Australia was the forum for this significant matter.

The primary legal issue the court was tasked with resolving was whether the appellant had demonstrated that the order for indefinite imprisonment and ineligibility for parole was so manifestly unjust as to merit leave to appeal. This required the court to consider the principles of judicial review in the context of sentencing and the extent to which the order could be subject to such review. The court also needed to determine whether there were any errors of law that warranted the granting of leave to appeal.

In examining the application, the court considered the nature and severity of the appellant's crimes, the principles of sentencing and the role of the judiciary in reviewing such orders. The court ultimately found that while the appellant's sentence was severe, it did not reach the threshold of manifest injustice necessary to warrant the granting of leave to appeal. The court emphasised the importance of adhering to the principles of judicial restraint in the context of sentencing and the limited role of the judiciary in reviewing such orders. The application for leave to appeal was thus dismissed.

The court's decision was clear and concise, with the court stating that the appellant had not satisfied the requirements for leave to appeal. The High Court confirmed the order for indefinite imprisonment and ineligibility for parole, upholding the original sentencing decision. This outcome reflects the court's recognition of the need to balance the rights of the appellant with the broader societal interest in the administration of justice and the deterrence of serious crime.

Orders