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Green v The Queen

Green v The Queen

Case [2000] NTCCA 1 11 February 2000

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Green v R [2000] NTCCA 1
PARTIES:HARRISON GREEN

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL
JURISDICTION:  APPEAL FROM SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA22 of 1998 (9721574)
DELIVERED:  11 February 2000
HEARING DATES:  3 June 1999
JUDGMENT OF:  GALLOP, ANGEL and MILDREN JJ
CATCHWORDS:
Criminal Law – Sentencing Act 1995 (NT) – Indefinite sentences for violent
offenders - Appeal against sentence – Judicial discretion to impose indefinite
sentences

Sentencing Act 1995 (NT), ss 65(8), (9) and (10)

R v Tait and Bartley (1979) 24 ALR 473 at 476, applied
Singh v R (1984) 55 ALR 692 at 695, applied
R v Wilson (Court of Appeal, Queensland, unreported 12 August 1997), considered

R v Fletcher (Court of Criminal Appeal, Queensland, unreported,
25 September 1998), discussed
R v Moffatt (1998) 2 VR 229, discussed

Statues – Acts of Parliament – Interpretation – Sentencing Act 1995 (NT) – Indefinite
sentences for violent offenders – Words and Phrases – conjunction “and/or” – whether an “offender is a serious danger to the community” – whether the nature of the offence is “exceptional”

Sentencing Act 1995 (NT) ss 65(8), (9) and (10)

R v Moffatt (1998) 2 VR 229 at 254-255, applied

Criminal Law – Sentencing – Sentencing Act 1995 (NT) – Indefinite
sentences for violent offenders – “offender is a serious danger to the community” – “dangerousness” – time for determining whether an offender is a serious danger to the community

Chester (1988) 165 CLR 611, discussed
        R v Wilson (Court of Appeal, Queensland, unreported, 12 August 1997), applied
        Lowndes v R (1997) 95 A Crim R 516 at 524, applied
        R v Fletcher (Court of Criminal Appeal, Queensland, unreported,
25 September 1998) applied
        Carr v R (1996) 1 VR 585 at 592, discussed
Criminal Law – Evidence – Sentencing – Relevance of opinion evidence of lay
            witnesses – Relevance of pre-sentence reports
Sentencing Act 1995 (NT), ss 104, 105 and 106
R v Davey (1980) 50 FLR 60, applied
        Munungurr v R (1994) 4 NTLR 63 at 71-73, applied
REPRESENTATION:
Counsel:
Appellant:K Kilvington
Respondent:  R Wild QC
Solicitors:
Appellant:Centralian Australian Aboriginal Legal Aid Service
Respondent:  Director of Public Prosecutions
Judgment category classification:               A
Judgment ID Number:  ang99006
Number of pages:  38

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
No. CA22 of 1998 (9721574)
Green v R [2000] NTCCA 1

BETWEEN:

HARRISON GREEN
Appellant

AND:

THE QUEEN
Respondent

CORAM: GALLOP, ANGEL and MILDREN JJ
REASONS FOR JUDGMENT
(Delivered 11 February 2000)
GALLOP J:

I have read the judgments of Angel and Mildren JJ in draft form in this matter. I agree with their conclusion that leave to appeal should be granted and the appeal dismissed for the reasons set out in the judgments.
As Mildren J has observed, this is the first occasion upon which this Court has been called upon to consider the provisions of Subdivision 4 Division 5 of Part 3 of the Sentencing Act which is headed “Indefinite Sentences…

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 Green v The Queen

Details

AGLC: Green v The Queen [2000] NTCCA 1
Case: [2000] NTCCA 1
Decision Date: 11 February 2000

CaseChat Overview and Summary

Green appealed against an indefinite sentence imposed by the Supreme Court of the Northern Territory. The appeal concerned the application of the Sentencing Act 1995 (NT) regarding the imposition of indefinite sentences for violent offenders.

The central legal issue before the Court of Criminal Appeal was the scope of judicial discretion in imposing an indefinite sentence under the Act. Specifically, the court had to consider the circumstances under which such a sentence could be justified and the evidentiary basis required to support a finding that an offender posed an ongoing risk of committing further violent offences.

The court affirmed that an indefinite sentence is a severe penalty and should only be imposed when the evidence clearly demonstrates a significant and ongoing risk of future violent offending. It reiterated that the primary purpose of an indefinite sentence is the protection of the public, not punishment. The court emphasised that the sentencing judge must be satisfied, based on cogent evidence, that the offender's past behaviour and current disposition indicate a likelihood of future violence, and that a finite sentence would not adequately address this risk. The appeal was dismissed.

Orders