R v Green - [2004] VSCA 67

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 15 of 2003

THE QUEEN
	v.
GRAEME LESLIE GREEN

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JUDGES:	CHARLES and BATT, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 April 2004
DATE OF JUDGMENT:	22 April 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 67

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MURDER – Application to appeal against sentence of 18 years with non-parole period of 14 years – Whether sufficient weight given to the fact that applicant stood trial three times over four years – Whether error made by the judge taking into account the effect on the family of deceased of repeated proceedings – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	In person

CHARLES, J.A.:

I will invite O'Bryan, A.J.A. to give the first judgment.

O'BRYAN, A.J.A.:

The applicant was 27 years of age when he was convicted of the murder of Tracey Lianne Holmes at Wangaratta on 28 August 1998 and sentenced to be imprisoned for 18 years. A non-parole period of 14 years was fixed and a period of 1572 days pre-sentence detention was certified as already served pursuant to s.18(4) of the Sentencing Act 1991.

Due to circumstances beyond the control of the applicant he stood trial on three occasions. The first trial was terminated before verdict in October 1999. The second trial resulted in a guilty verdict on 5 June 2000. The applicant appealed successfully and a new trial was ordered. The third trial also resulted in a guilty verdict on 18 September 2002.

The sentence imposed following the third trial was identical to the sentence imposed following the second trial.

The applicant has relied upon two grounds:

1.The judge failed to give sufficient weight to the fact that the applicant stood trial for murder three times and that it took over four years for his matter to be finalised. The judge's sentence failed to reflect that this in itself was a significant punishment.
2.The judge erred in taking into account the effect on the family of the deceased of the "repeated proceedings" in this matter.

The murder was not premeditated, but the circumstances of the killing and the applicant's conduct thereafter were found by the judge to be callous. A short history of the circumstances will suffice.

On the day Ms Holmes was killed the applicant was 23 years of age and single. The victim was 24 years of age and had a three-year-old son. The applicant was released from Beechworth Prison at 11.30 a.m. on the day of the killing, having completed a two-month sentence for theft. He travelled to Wangaratta and booked a room in a motel. During the afternoon he consumed a quantity of alcohol and won about $200 playing gaming machines in a local hotel.

Early in the evening the applicant booked the services of a prostitute for an hour at his motel room commencing at 8.40 a.m. Ms Holmes duly arrived at the motel and after about…

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 [2004] VSCA 67
Case: [2004] VSCA 67
Decision Date: 22 April 2004

CaseChat Overview and Summary

The case of R v Green involved the appellant, Green, who was convicted of murder and sentenced to 18 years imprisonment with a non-parole period of 14 years. Green sought to appeal against his sentence, arguing that the trial judge did not sufficiently consider the impact of his repeated trials on his family, particularly the family of the deceased. The appeal was heard in the relevant appellate court.

The central legal issues in the appeal were whether the trial judge appropriately weighed the fact that Green had already stood trial three times over a four-year period, and whether the judge erred in considering the impact of these repeated proceedings on the deceased’s family. The court needed to determine if the sentence was manifestly inadequate or excessive in light of these considerations.

The court found that the trial judge had indeed considered the impact of the repeated trials on Green's family but did not believe that this factor warranted a lesser sentence. The court held that the judge had appropriately balanced the circumstances and did not make any errors in taking into account the broader effects of the repeated proceedings. Consequently, the application for an appeal against the sentence was dismissed.

The court’s decision was based on its assessment that the trial judge had appropriately exercised discretion in sentencing and did not err in the considerations made. Therefore, the sentence of 18 years with a non-parole period of 14 years was upheld.

Orders