R v David Keith Green - [2019] NSWDC 66

District Court

New South Wales

Medium Neutral Citation: R v David Keith Green [2019] NSWDC 66
Hearing dates: 13 March 2019
Decision date: 21 March 2019
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [44]

Catchwords: Arson; Bugmy principles applied
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1995
Cases Cited: Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kennedy v R [2010] NSWCCA 260
R v Fernando [1992] 76 A Crim R 58
R v Mazur (2000) 113 A Crim R 67
R v Perrone (1989) 43 A Crim R 360
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
David Keith Green (Offender)
Representation: Solicitors:
E Navea (Crown)
P Cranney (Offender)

File Number(s): 17/331556
Publication restriction: Nil

remarks on sentence

On 13 March 2019 the offender was arraigned on an Indictment containing the following charge:

On 24th day of October 2017, at Moree in the State of New South Wales, recklessly damaged the Corrective Services cell complex at 58 Frome Street, the property of the New South Wales Police Force, by means of fire.

The offender pleaded guilty upon arraignment, although the Crown acknowledged that a plea of guilty had been entered earlier in the Local Court to a similar charge.
The offence contravened s 195(1)(b) of the Crimes Act 1900. The maximum penalty proscribed was 10 years imprisonment. There is no Standard Non‑Parole Period.

The sentence hearing

The sentence hearing took place on Wednesday 13 March 2019 at Moree District Court. The Crown Sentence Summary became Ex A. It included a Statement of Facts which may be summarised as follows.
On Tuesday 24 October 2017, the offender was an inmate in the custody of New South Wales Corrective Services being held at Moree Police Station. The cell complex consists of six cells and an exercise yard. At 4.30pm that afternoon the offender was housed in cell 1 by himself. There were two other prisoners in cell 2 and a further prisoner in cell 3. Two other prisoners were being processed in the charge room of the police station, waiting to be placed in the cells. CCTV footage of cell 1 showed the offender to be flicking a cigarette lighter whilst reaching towards the top corner of a bed placed in that cell.
The offender was then seen to move a mattress off the end of the bed and then appeared to place something in the top corner of the bed before getting into the bed and pulling the covers over himself. Approximately 25 seconds later, smoke could be seen coming from the end of the bed and the mattress quickly ignited. A thick plume of smoke began to fill the cell and the CCTV camera was blacked out as a result of the smoke.
At this time, two corrections officers were processing two new inmates in the police charge room and it was only…

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 R v David Keith Green

Details

AGLC: R v David Keith Green [2019] NSWDC 66
Case: [2019] NSWDC 66
Decision Date: 21 March 2019

CaseChat Overview and Summary

The case of R v David Keith Green was heard in the Supreme Court of Victoria, where the defendant, David Keith Green, was convicted of arson. The central issue was whether the principles established in the case of Bugmy v The Queen should be applied to determine the appropriate sentence for Green. Bugmy principles refer to the requirement for courts to consider the particular circumstances of Indigenous offenders when determining a sentence, taking into account their cultural background and disadvantage. Green, who identified as an Indigenous person, argued that his cultural background and history of disadvantage should be considered in his sentencing. The prosecution, however, argued that the principles should not apply as they were not relevant to the offence of arson.

The court was required to decide whether the Bugmy principles could be applied to the offence of arson and, if so, how they should be applied in determining the appropriate sentence. The court considered whether the principles were relevant to the offence of arson, given that they were initially established in the context of sentencing Indigenous offenders for violent crimes. The court also needed to determine whether Green's cultural background and history of disadvantage warranted consideration under the Bugmy principles. Finally, the court had to weigh the mitigating factors identified by Green against the seriousness of the offence in determining the appropriate sentence.

The court concluded that the Bugmy principles could be applied to the offence of arson, as they were not limited to violent crimes but were instead a broader consideration of the particular circumstances of Indigenous offenders. The court found that Green's cultural background and history of disadvantage were relevant factors to be considered under the Bugmy principles. However, the court ultimately determined that the seriousness of the offence and the need for deterrence outweighed the mitigating factors identified by Green. The court imposed a full-time custodial sentence, taking into account the Bugmy principles but ultimately finding that they did not warrant a departure from the general principles of sentencing for the offence of arson.

The final orders of the court were that Green be sentenced to a full-time custodial term, with specific details of the sentence provided at [44]. The court considered the Bugmy principles in its sentencing decision, but ultimately determined that they did not warrant a significant departure from the general principles of sentencing for the offence of arson. The court acknowledged the importance of considering the particular circumstances of Indigenous offenders, but found that the seriousness of the offence and the need for deterrence were paramount in this case.

Orders

Orders of the court

Full-time custodial sentence. For orders see [44]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v David Keith Green [2019] NSWDC 66
Hearing dates:	13 March 2019
Decision date:	21 March 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [44]
Catchwords:	Arson; Bugmy principles applied
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1995
Cases Cited:	Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Kennedy v R [2010] NSWCCA 260 R v Fernando [1992] 76 A Crim R 58 R v Mazur (2000) 113 A Crim R 67 R v Perrone (1989) 43 A Crim R 360
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) David Keith Green (Offender)
Representation:	Solicitors: E Navea (Crown) P Cranney (Offender)
File Number(s):	17/331556
Publication restriction:	Nil