Carr v The Queen

[2010] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0128

KEVIN JOHN CARR
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2010
DATE OF JUDGMENT:	2 August 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 200
JUDGMENT APPEALED FROM:	DPP v Carr (Unreported, County Court of Victoria, Chief Judge Rozenes, 18 June 2009)

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CRIMINAL LAW – Indefinite sentence – Review of indefinite sentence – Appeal against refusal to discharge indefinite sentence – Powers of Court of Appeal on appeal – Whether offender still a serious danger to the community – Fresh medical evidence – Offender terminally ill – Appeal allowed – Indefinite sentence discharged – Sentencing Act 1991 (Vic) ss 18M and 18O.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr W B Lindner	Victoria Legal Aid
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P (for the Court):

1. For the following short reasons, the Court is of the view that the appeal should be allowed.

1. The appellant was subject to a sentence of indefinite imprisonment made on 25 May 1995 by a judge of the County Court.  A nominal sentence of 12 years was imposed.  The Court of Appeal refused leave to appeal.[1]

[1]R v Carr [1996] 1 VR 585.

1. Subsequently, the Director of Public Prosecutions sought a review of the indefinite sentence, as required by s 18H of the Sentencing Act1991 (Vic) (the ‘Act’). The test applicable to that review is set out in s 18M of the Act:

18M Outcome of review

(1) On a review under section 18H(1)(a) or (b) the court, unless it is satisfied (to a high degree of probability) that the offender is still a serious danger to the community, must by order—

(a) discharge the indefinite sentence; and

(b) make the offender subject to a 5 year reintegration program administered by the Adult Parole Board and issue a warrant to imprison in the same way as if it had sentenced the offender to a term of imprisonment for 5 years.

(2) The indefinite sentence continues in force if the court does not make an order under subsection (1).

1. Having heard the evidence, the Chief Judge was satisfied that the appellant was still a serious danger to the community, and declined to make an order under s 18M(1). Under s 18O of the Act, the appellant has exercised his right to appeal to this Court against the refusal of the County Court to make an order under s 18M(1) discharging the indefinite sentence.

1. In support of the appeal, additional medical evidence has been filed concerning both the physical health and life expectancy of the appellant. Importantly, the material demonstrates that the appellant represents a greatly reduced risk as a result of the serious deterioration in his health.  That additional material has been received by the Court – without objection from the Director of Public Prosecutions – as fresh evidence.  It goes to a matter which was considered by the Court below and shows a significant and material change in the appellant’s medical condition in the time since the County Court’s review.  He is now terminally ill.

1. Having regard to the new material, we could not be satisfied that the offender is still a serious danger to the community. The Crown does not dispute this conclusion. It follows that the appeal must be upheld. Under s 18O(3) of the Act, it therefore falls to us to make the order that we think ought to have been made.

1. Accordingly, the orders of the Court are as follows:

1. The appeal under s 18O(1) of the Sentencing Act1991 (Vic) is allowed.

2.        The indefinite sentence imposed upon the appellant by Judge Lewis on 25 May 1995 is discharged.

3.        The appellant be subject to a five year reintegration program administered by the Adult Parole Board.