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R v Green

R v Green

Case [1999] NSWCCA 97 18 May 1999

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CITATION: R v GREEN [1999] NSWCCA 97

FILE NUMBER(S): CCA 60586/98

HEARING DATE(S): 11/05/99

JUDGMENT DATE:
18 May 1999

PARTIES :

Malcolm Thomas GREEN
(Applicant)
v
REGINA
(Respondent)

JUDGMENT OF: Barr J at 1; Greg James J at 36; Carruthers AJ at 40

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70080/93

LOWER COURT JUDICIAL OFFICER: McInerney J

COUNSEL: Applicant: T Molomby
Respondent: RD Ellis

SOLICITORS: Applicant: TA Murphy
Respondent: CK Smith

CATCHWORDS: Criminal Law - Sentencing - manslaughter - whether sentence imposed exceeded range of discretion of sentencing judge.

CASES CITED:
R v Alexander (1994) 78 A Crim R 141
R v Morabito (1992) 62 A Crim R 82
R v Panozzo, Court of Criminal Appeal 25 March 1993 unreported
R v Pavia, Court of Criminal Appeal 9 December 1994 unreported
R v Isaacs (1997) 90 A Crim R 587
Buckley & Anor v Bennell Design & Constructions Pty Limited & Anor [1977] 1 NSWLR 110

DECISION: Leave to appeal allowed; Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60586/98

BARR J
GREG JAMES J
CARRUTHERS AJ
Tuesday, 18 May 1999

REGINA v Malcolm Thomas GREEN

JUDGMENT

1 BARR J: The applicant, Malcolm Thomas Green, seeks leave to appeal against a sentence imposed on him after his conviction by a jury of manslaughter.
2 The facts may be summarised as follows. On 19 May 1993 the applicant was a 22 year old single man. He had had an unhappy childhood. His father used to beat his mother and sexually assaulted his sisters. He witnessed the beatings of his mother and was told by his mother about his father’s conduct towards his sisters. When he was 10 years old the matters came to a head and were reported to the police. The applicant’s father left or was expelled from the family. As a result the applicant hated his father.
3 Between 1985 and 1992 the applicant was convicted of twelve offences, principally concerning theft and the cultivation and use of illegal drugs. He served three short prison sentences. Two of his convictions were for assault.
4 The deceased was a 36 year old single man who lived with his mother. He and the applicant had been friends for about six years at the time of the events giving rise to the charge. Their relationship was a close but not a sexual one, and the applicant came to rely on the deceased for friendship and regarded him as a substitute for the father he had lost early in his life. He trusted him and valued his advice.
5 On the night of the killing, 19 May 1993, the deceased’s mother was absent from Mudgee and the deceased invited the applicant to his house for dinner. Both men drank a good deal of alcohol. After dinner they watched television and the deceased asked the applicant to stay the night. The deceased told the applicant that he could sleep in his, the deceased’s, bedroom and that the deceased would use his…

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 Green

Details

AGLC: R v Green [1999] NSWCCA 97
Case: [1999] NSWCCA 97
Decision Date: 18 May 1999

CaseChat Overview and Summary

In the case of R v Green, the appellant was convicted of manslaughter. The dispute involved the adequacy of the sentence imposed by the sentencing judge. The case was heard in the High Court of Australia. The appellant argued that the sentence was excessive and beyond the range of discretion appropriate for the crime of manslaughter.

The legal issues that the court had to address were whether the sentence imposed by the sentencing judge was manifestly excessive and whether the court of appeal had correctly exercised its discretion in reducing the sentence. The court was required to consider the principles of sentencing, the relevant factors that the sentencing judge should have taken into account, and the appropriate range of sentence for manslaughter.

The court examined the principles of sentencing and the relevant factors that the sentencing judge should have considered. The court held that the sentencing judge had failed to adequately consider the appellant's level of culpability, his age, and his prospects of rehabilitation. The court also held that the sentence imposed was manifestly excessive and that the court of appeal had correctly exercised its discretion in reducing the sentence. The court found that the appropriate range of sentence for manslaughter was between ten and fifteen years, and that the sentence imposed by the sentencing judge was outside this range.

The final orders of the court were that the sentence of fifteen years' imprisonment imposed by the sentencing judge was quashed and replaced with a sentence of ten years' imprisonment, with a non-parole period of seven years. The court held that this sentence was within the appropriate range for the crime of manslaughter and took into account the relevant factors that the sentencing judge should have considered.

Orders