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.: 

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

O'BRYAN, A.J.A.:

1. 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.

1. 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.

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

1. 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.

1. 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.

1. 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.

1. 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 twenty minutes she telephoned her agency and extended the booking to two hours.

1. Very little is known about the events in the room between the telephone call and the discovery of Ms Holmes's naked body in the room at 10.50 p.m.  The body was found lying dead on the floor and she had been manually strangled to death by the applicant.  In a police interview the applicant admitted strangling the victim with his hands, intending to kill her.

1. The motive for the killing was never revealed by the applicant.  It is mere speculation that the applicant became angry because he was unable to complete an act of sexual intercourse and attacked her as a consequence.  He was affected by alcohol to some degree and condoms on the floor did not contain ejaculate.

1. The applicant fled the room taking his belongings and the victim's money in her bag.  He went back to the same hotel and played the gaming machines, winning about $500.  The following morning police located the applicant and he was charged with murder.

1. The victim was a young woman and the mother of a young child.  Her death caused considerable sadness and grief to her family, including her mother, and left the child motherless.  These matters were properly drawn to the attention of the sentencing judge.

1. The applicant was examined by Dr Walton and found not to have a psychiatric condition.  He was considered to have positive prospects of rehabilitation.

1. The grounds of appeal do not include a ground that the head sentence was manifestly excessive.  Nor did the applicant complain about the non-parole period.  Indeed the substantial period of parole is consistent with the judge's finding that the applicant had positive prospects of rehabilitation.

1. The first ground of appeal has no substance in my opinion.  The delay of almost five years between the murder and completion of the third trial was not inordinate in the circumstances and was not due in any way to the conduct of the Office of Public Prosecutions.  No doubt the experience of three trials and an appeal was distressing to the applicant, as they must have been also for the victim's family.  The period of pre-sentence detention was unusually long but every day so served must be taken into account by the Corrections Department.  The judge said he recognised the strain on the applicant of not knowing his fate for several years and took it into account.

1. The first ground fails.

1. The second ground has no substance.  Nothing in the judge's sentencing remarks suggests that he increased the sentence because the victim's family had to endure a longer than usual period before the stress and strain of the trials and an appeal were over.

1. The sentence considered appropriate by the judge was identical to the sentence imposed by the judge who conducted the second trial. The applicant applied for leave to appeal the sentence pursuant to s.582 of the Crimes Act and was refused leave.  Altogether, two experienced judges consider the sentence now appealed just and fair in the circumstances.  I agree that 18 years was within the range and would dismiss the application for leave to appeal.

CHARLES, J.A.: 

1. I agree.

BATT, J.A.:

1. I also agree.

CHARLES, J.A.: 

1. The order of the Court today is that the application for leave to appeal is dismissed.

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