Green v The Queen

Case [2006] NTCCA 22

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 DARWIN

Green 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

  1. 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.

  2. 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.

  3. 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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Details
AGLC
Green v The Queen [2006] NTCCA 22
Case
[2006] NTCCA 22
Decision Date

CaseChat Overview and Summary

The appeal concerned the severity of a determinate sentence imposed on the appellant by the Supreme Court of the Northern Territory. The appellant had initially been sentenced to an indefinite term of imprisonment in 1998, which was later discharged in 2004 and replaced with a determinate sentence. The appeal was heard by Martin (BR) CJ, Angel and Southwood JJ.

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

The essential features of the scheme may be summarised as follows:· The power to sentence an offender to an indefinite term of imprisonment only exists if the offender has been convicted of a “violent offence” as defined by s 55(1). · Procedural provisions ensure that the offender is entitled to be heard before such a sentence is imposed. · A court may only impose an indefinite sentence if it is satisfied that the offender “is a serious danger to the community” “because of” the matters specified in s 65(8). · In determining whether an offender is a serious danger to the community, the court is required by s 65(9) to “have regard to” the matters set out in that subsection. Section 65(10) provides that s 65(9) does not limit the matters to which the court may have regard in determining whether to impose an indefinite sentence. The interaction between being satisfied that the offender is a serious danger “because of” the matters identified in s 65(8) and the direction that the court “have regard to” the matters specified in s 65(a) was discussed in Green.· The burden of proving that an offender is a serious danger to the community rests on the prosecution: s 70.· A court may make a finding that an offender is a serious danger to the community only if it is “satisfied”, “by acceptable and cogent evidence” and “to a high degree of probability”, that the evidence is of “sufficient weight to justify the finding”. · A finding that an offender convicted of a violent offence is a serious danger to the community does not require the court to impose an indefinite sentence. If that finding is made, the discretion of the court to impose an indefinite sentence of imprisonment is enlivened: Murray at [11]. · If the court imposes an indefinite sentence, it is required to give reasons at the time that the indefinite sentence is imposed: s 69.· Section 65(4) directs that the court shall not fix a non-parole period in respect of an indefinite sentence. Pursuant to s 65(5), in the order imposing an indefinite sentence the court is required to specify a “nominal sentence” of a period “equal to the period that it would have fixed had it not imposed an indefinite sentence”.· Provision is made for regular review of an indefinite sentence. Section 72 directs that the first review shall be not later than six months after the offender has served fifty percent of the nominal sentence or, if the nominal sentence is imprisonment for life, after service of 13 years of the nominal sentence. Subsequent reviews shall be at intervals of not more than two years and, pursuant to s 73(1), the offender may apply, with leave of the court, for a further review at any time after the first review on the ground that there are “exceptional circumstances that relate to the offender”. · Upon a review, unless satisfied to a high degree of probability that the offender is still a serious danger to the community at the time when the review is made, the court is required to order that the indefinite sentence be discharged and “sentence the offender under [the Sentencing Act] for the violent offence for which the indefinite sentence was imposed”: s 74(1). If the order discharging the indefinite sentence is not made, the indefinite sentence continues in force.· A determinate sentence imposed following discharge of an indefinite sentence cannot be less than the nominal sentence and “takes the place of the indefinite sentence”: s 74(3)(b) and (c). · The determinate sentence “is taken to have started on the day the indefinite sentence was imposed”: s 74(3)(a). In Murray I held that s 74(3)(a) should be construed as meaning that the sentence is taken to have started on the day the indefinite sentence commenced [70]. Mildren J, with whose reasons Thomas J agreed, declined to determine this issue [86].Background

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Riley, after allowance for the principle of double jeopardy applicable to re-sentencing following successful Crown appeals, and after appropriate reduction for the plea of guilty, a sentence of seven years imprisonment was imposed. I indicated that had I not been constrained by the principle of double jeopardy, and before making allowance for the pleas of guilty, I would have regarded a sentence of 12 years imprisonment as appropriate for the crime of sexual intercourse without consent. In Inkamala, after allowance for the principle of double jeopardy and plea of guilty, a sentence of nine years imprisonment was imposed. I indicated that having regard to the principle of double jeopardy, but before making allowance for the plea of guilty, I would have regarded a sentence of 11 years as appropriate.Conclusion The sentence is undoubtedly a severe sentence, but I am not persuaded that it is manifestly excessive. The crime was particularly serious and there are no circumstances, either personal to the appellant or accompanying the commission of the crime, which are capable of mitigating the gravity of the appellant’s offending. As I have said, both general and personal deterrence are of particular importance. There was a range of sentences properly available to the sentencing Judge and I am not persuaded that the sentence is outside that proper range. I would dismiss the appeal.Angel J: I agree that this appeal by leave against severity of sentence should be dismissed. I agree that upon a proper construction of the Statutory Scheme relating to indefinite sentences for violent offenders under Division 5 Sub–division 4 Sentencing Act (NT) sentences imposed pursuant to s 74(1)(b) should be based on sentencing practices extant as at the time of passing sentence rather than at the time of the commission of the offence or at the time the indefinite sentence was imposed. The lapse of time between the appellant’s offending in 1997 and the learned sentencing judge passing sentence in 2004 was attributable to the criminal conduct of the appellant and his lawful incarceration as a consequence and there was no occasion for the learned sentencing judge to have applied 1997 sentencing standards. The submission that 1997 sentencing standards ought to have been applied principally rested on the decision of the New South Wales Court of Criminal Appeal in R v MJR (2002) 54 NSWLR 368. In that case a majority held that sentencing should be based on practices extant as at the time of the commission of the offence rather than at the time of conviction. The Court followed Shore (1992) 66 A Crim R 37 and declined to follow R v PLV (2001) 51 NSWLR 736. In R v PLV the Court held sentencing should be based on practices extant at the time of conviction. In R v MJR, at 370 [7], Spigelman CJ said “the principle approved in R v Shore – that a sentencing judge should have regard to the range of sentences imposed at the time of the commission of the offence” had received approval in subsequent cases. Shore and R v PLV were described by Mason P (dissenting) as “competing authorities”.

Ratio Decidendi

Legal Principle Established

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