Green v The Queen [2006] NTCCA 22
PARTIES:GREEN, Harrison
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 3 of 2005 (9721574)
DELIVERED: 23 October 2006
HEARING DATES: 13 July 2006
JUDGMENT OF: MARTIN (BR) CJ, ANGEL & SOUTHWOOD JJ
APPEAL FROM: NORTHERN TERRITORY SUPREME COURT, 9721574, 14 December 2004
CATCHWORDS:
CRIMINAL LAW
Criminal Law – appeal – appeal against sentence – appellant sentenced to indefinite sentence in 1998 – nominal sentence fixed – indefinite sentence discharged in 2004 – determinate sentence imposed – error in nominal sentence does not affect determinate sentence – 1998 or 2004 sentencing standards – determinate sentence not manifestly excessive – appeal dismissed.
Sentencing Act (NT), s 5, s 65, s 72 and s 74
Poyner v The Queen (1986) 60 ALJR 616, applied.
Green v R (2000) 133 NTR 1; R v Murray [2006] NTCCA 9; R v MJR (2002) 54 NSWLR 368; R v Shore (1992) 66 A Crim R 37; Yardley v Betts (1979) 22 SASR 108; Radenkovic v The Queen (1990) 170 CLR 623; R v Riley [2006] NTCCA 10; R v Inkamala [2006] NTCCA 11; R v D (1997) 69 SASR 413; R v PLV (2001) 51 NSWLR 736; R v Lozanovski [2006] NSWCCA 143; R v Lane (1996) 135 FLR 7; R v Major (1998) 70 SASR 488; R v Kench (2005) 152 A Crim R 294; R v M WJ (2005) 92 SASR 371; Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519, considered.
Singh v R (1983) 55 ALR 692, distinguished.
R v Lewfatt (1993) 3 NTLR 41; Chester v R (1998) 165 CLR 611, followed.REPRESENTATION:
Counsel:
Appellant:Suzan Cox QC
Respondent: D Lewis
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: A
Judgment ID Number: Mar0624
Number of pages: 51
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINGreen v The Queen [2006] NTCCA 22
No. CA 3 of 2005 (9721574)
BETWEEN:
HARRISON GREEN
Appellant
AND:
THE QUEEN
Respondent
CORAM: MARTIN (BR) CJ, Angel and Southwood JJ
REASONS FOR JUDGMENT
(Delivered 23 October 2006)
Martin (BR) CJ:
Introduction
This is an appeal against a sentence of 14 years imprisonment imposed in December 2004 for the crime of sexual intercourse without consent, in respect of which a non-parole period of 10 years was fixed.
The crime was committed in 1997. In October 1998 the learned sentencing Judge sentenced the appellant to an indefinite term of imprisonment. The indefinite sentence was discharged in December 2004 and the Judge imposed the sentence under appeal.
The appellant complains that error attending the 1998 order has impacted upon the sentence imposed in December 2004 to the extent that the 2004 sentence is affected by error and should be set aside. In addition, the…
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CaseChat Overview and Summary
The primary legal issue before the court was whether the determinate sentence imposed in 2004 should have been assessed by reference to sentencing standards applicable in 1998, when the indefinite sentence was imposed, or by reference to the standards applicable in 2004, at the time the determinate sentence was imposed. A further issue was whether the determinate sentence itself was manifestly excessive.
The court reasoned that the statutory scheme governing indefinite sentences, specifically section 74(1)(b) of the *Sentencing Act* (NT), mandated that sentences imposed following the discharge of an indefinite sentence should be based on sentencing practices extant at the time of the later sentencing. Angel J noted that the appellant's own conduct and lawful incarceration had contributed to the delay between the offence and the final sentencing, and therefore there was no occasion to apply earlier sentencing standards. The court also considered the appellant's argument that the determinate sentence was manifestly excessive, but concluded that given the seriousness of the crime and the absence of mitigating circumstances, the sentence was within the proper range available to the sentencing judge.
The appeal was dismissed, with the court finding that the determinate sentence was not manifestly excessive and that it had been correctly imposed by reference to contemporary sentencing standards.
Orders
Orders of the court
I would dismiss the appeal.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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