DPP v Green - [2008] VSCA 36

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 303 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)
	v
ANTHONY SHANE GREEN

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JUDGES:	VINCENT, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 January 2008
DATE OF JUDGMENT:	6 March 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 36

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Criminal law – Director’s appeal – Intentionally causing serious injury – Blackmail – Making a threat to inflict serious injury – Respondent with significant and extensive criminal history – Offences committed whilst on bail for other serious offences – Whether judge undervalued seriousness of respondent’s conduct – Respondent had served custodial portion of sentence – Real progress made in respect of his rehabilitation – Need for sentence imposed to be considered in context of other sentences and periods of incarceration to which respondent subject – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson, QC	Clarebrough Pica

VINCENT JA:

The respondent pleaded guilty before Judge Kelly in the County Court at Melbourne, on 15 August 2007, to one count of blackmail (count 1), one count of intentionally causing injury (count 2) and one count of making a threat to inflict serious injury (count 4).

He admitted 61 previous convictions arising from 19 court appearances between 4 September 1989 and 18 December 2002. They related to a number of driving and firearm offences, various forms of dishonesty and conduct against public order. Of significance, for present purposes, I note three prior convictions for assault by kicking, one for assaulting a police officer in the lawful execution of duty, one conviction for recklessly causing serious injury, two for recklessly causing injury, two for unlawful assault, two for intentionally causing serious injury and one for common assault for which he was later convicted.

It is also necessary to mention that, on 8 February 2006, Hollingworth J in the trial division of this Court sentenced the respondent to three years and six months’ imprisonment, in respect of which she fixed a non-parole period of two years and three months.[1] On 16 May 2006, Judge Gullaci in the County Court sentenced the respondent to ten months’ imprisonment arising from another incident of violence.[2]
[1]The respondent and a co-offender had committed an assault and kidnapping.
[2]This incident of violence was committed by the respondent on a neighbour.

After hearing a plea in mitigation of penalty, Judge Kelly, on 15 August 2007, imposed the following terms of imprisonment:
On count 1     -          two months;
On count 2     -          10 months;
On count 4     -          three months.
His Honour directed that two months of the sentence imposed on count 4 be served cumulatively upon that imposed on count 2, creating a total effective sentence of 12 months’ imprisonment. He then ordered that six months of that term be served cumulatively with the sentence that the respondent was undergoing at the time and directed that he serve a minimum term of…

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 DPP v Green

Details

AGLC: Director of Public Prosecutions v Green [2008] VSCA 36
Case: [2008] VSCA 36
Decision Date: 6 March 2008

CaseChat Overview and Summary

The Director of Public Prosecutions sought an appeal against a sentence imposed on Green, who had been found guilty of various criminal offences, including intentionally causing serious injury, blackmail, and making threats to inflict serious injury. The trial judge had sentenced Green to a term of imprisonment, which the Director argued was insufficient given the severity of the crimes and Green's extensive criminal history. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the trial judge had undervalued the seriousness of Green’s conduct and whether the sentence imposed was appropriate. The Director argued that the sentence failed to adequately reflect the gravity of Green’s actions, which were committed while on bail for other serious offences. The court was required to consider the totality of Green's offending and criminal history, as well as the need for general and specific deterrence.

The court dismissed the appeal, finding that the trial judge had appropriately considered the relevant factors in sentencing Green. The court recognised the seriousness of Green's conduct but also noted the progress he had made in rehabilitation and the fact that he had already served the custodial portion of his sentence. The High Court held that the sentence imposed should be considered in the context of other sentences and periods of incarceration to which Green had been subject. The appeal was dismissed, and the original sentence was upheld.

Orders