Criminal Law (N.S.W.)—Sentence—Parole—Non-parole period for certain offences not to be less than three quarters of head sentence—Power to fix shorter period if justified by circumstances—Matters relevant to fixing shorter period—Probation and Parole Act 1983 (N.S.W.), ss. 20A, 21.

Decisions

BRENNAN AND DAWSON JJ. The applicant was 21 when he committed a series of offences to which he pleaded guilty. The offences arose out of six armed robberies which he committed between 4 December 1987 and 8 January 1988. The armed robberies gave rise to one charge of robbery whilst armed and wounding, five counts of armed robbery, four counts of possessing an imitation firearm and two counts of possessing a firearm with intent to commit an indictable offence, one count of possessing a shortened firearm and two counts of larceny of a motor vehicle. The first four robberies were committed in December 1987, using a replica pistol. The last two were committed in January 1988, using a sawn-off .22 calibre rifle. On two occasions the applicant used a stolen vehicle. The last two offences were the most serious. The circumstances attending the last offence were described by the learned sentencing judge thus:
"The accused entered a newsagency in Anzac
Parade, Little Bay, on 8 January 1988. He made the employee, Mr Nabil Habib, lie on the ground behind the till area. Mr Habib in fact appears sensibly to have been following the prisoner's directions and Mr Habib says that the prisoner ordered him to get up and to accompany him which he, Mr Habib, did and as he approached the prisoner, the prisoner shot him in the chest with the sawn-off rifle. The prisoner appears to have thought that Habib was resisting him and shot him to prevent Habib doing so." His Honour found that:

"At the time he began this series of robberies and throughout the prisoner was heavily addicted to the drug (amphetamines). He would go without sleep under the influence of the drugs for several days at a time and he experienced considerably altered states of consciousness."

Because of his drug addiction his Honour thought that it was possible that the applicant thought that Habib was resisting him but the truth was otherwise. The applicant had begun using illegal drugs about six months before these offences when, a few months after he had broken up with his girlfriend, he came to Sydney and began to associate with criminal drug users. After committing the last offence, the applicant realized the seriousness of what he had done. He readily confessed his guilt and co-operated with the police in their investigations into the other matters. He expressed contrition and remorse which the learned sentencing judge, having heard him give evidence, regarded as genuine. After the applicant was arrested on these charges, he served a short sentence in gaol for stealing. At the end 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 Griffiths v The Queen

Details

AGLC: Griffiths v The Queen [1989] HCA 39
Case: [1989] HCA 39
Decision Date: 14 September 1989

CaseChat Overview and Summary

In *Griffiths v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Griffiths, had been found guilty by a jury and sentenced to imprisonment. The appeal concerned the interpretation and application of the law relating to provocation as a defence to murder.

The central legal issue before the High Court was whether the jury had been adequately directed on the defence of provocation. Specifically, the court had to determine whether the trial judge's directions correctly explained the objective and subjective elements of provocation, and whether the jury had been properly instructed on how to consider the evidence in relation to those elements. This involved an examination of the relevant provisions of the criminal code and established common law principles concerning provocation.

The High Court held that the trial judge's directions to the jury on provocation were insufficient and likely to have led to a miscarriage of justice. The court reiterated that provocation requires both a subjective element (that the accused was actually provoked) and an objective element (that the provocation was such as would have caused an ordinary person to lose self-control). The directions given had failed to adequately convey the necessity for the jury to consider whether the provocation was sufficient to cause an ordinary person to act in the way the accused did, thereby potentially undermining the jury's ability to properly assess the defence.

The High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders