R v Heiss and Kamm

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R v Heiss & Kamm [2009] NTSC 26

PARTIES:  THE QUEEN
v
DANIEL LOTHAR HEISS
AND
PETER MICHAEL KAMM
TITLE OF COURT:  SUPREME COURT OF THE
NORTHERN TERRITORY

JURISDICTION: 

SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NOS:  9300026 & 9301820
DELIVERED:  22 June 2009
HEARING DATES:  26 & 27 May 2009
JUDGMENT OF:  MILDREN J
CATCHWORDS: 

CRIMINAL LAW – sentencing – murder – life imprisonment – Sentencing

(Crime of Murder) and Parole Reform Act s 19(4) – application by DPP –

whether longer non parole period should be fixed – application dismissed

Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) s (4),

s 7(7), s 17, s 18(a), s 19(1), s 19(1)(a)(i), s 19(3), s 19(4), s 53A(2),

Criminal Code s 140(b), s 210(1)

Leach v The Queen (2007) 230 CLR 1; R v Crabbe (2004) 145 NTR 50;
(2004) 188 FLR 209, 150 A Crim R 523; referred to

REPRESENTATION:

Counsel:

Plaintiff:  R Wild QC & P Horvat
First Defendant:  S Cox QC
Second Defendant:  R Goldflam

Solicitors:

Plaintiff:  Director of Public Prosecutions
First Defendant:  Northern Territory Legal Aid
Commission
Second Defendant:  Northern Territory Legal Aid
Commission

Judgment category classification: B

Number of pages:  44
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Heiss & Kamm [2009] NTSC 26

Nos. 9300026 & 9301820

BETWEEN:

THE QUEEN

Plaintiff

AND:

DANIEL LOTHAR HEISS

First Defendant

AND:

PETER MICHAEL KAMM

Second Defendant

CORAM:  MILDREN J

REASONS FOR JUDGMENT

(Delivered 22 June 2009)

  1. This is an application by the Director of Public Prosecutions pursuant to

sub-ss 19(1)(a)(i) and (4) of the Sentencing (Crime of Murder) and Parole
Reform Act 2003 (NT) to revoke the statutory 20 year non-parole period

fixed by sub-s 18(a) of the Act and to substitute a longer non-parole period

in accordance with sub-s 19(4) of that Act.

  1. On 22 December 1990, following a trial before Nader J and a jury of 12, the

respondents were found guilty of having murdered Peter Dean Robinson on
or about 14 May 1989 near the Carpentaria Highway on O T Downs Station.
On 31 January 1991, as was then required by the Criminal Code (NT), each
respondent was sentenced to imprisonment for life for the offence of murder
without a non-parole period being fixed. These sentences were deemed to
have commenced to be served from 5 August 1989. Concurrent fixed term

sentences were ordered in respect of convictions for stealing and for improperly offering an indignity to the deceased body of Peter Dean

Robinson, each respondent having been found by the jury to be guilty of those crimes in addition to the crime of murder.

  1. The Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) came

    into operation on 11 February 2004. It applies to the respondents[1].

  2. Pursuant to sub-s 18(a) of the Act, the respondents’ sentences of

    imprisonment for life for the crime of murder are to be taken to include a

    non-parole period of 20 years. Pursuant to…

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Details
Case
[2009] NTSC 26
Decision Date

CaseChat Overview and Summary

In the case of R v Heiss and Kamm, the applicants, Heiss and Kamm, sought to have their non-parole periods reduced. The applicants were serving sentences for their involvement in a crime that included the death of a person. Counsel for the Director of Public Prosecutions, Mr Wild QC, argued that the application could not be made earlier than 12 months after sentencing, and that there was no fixed time for making the application thereafter. However, the delay in making the application was noted to have caused issues with the reintegration plans. The court was required to decide whether the delay in making the application was a valid reason to dismiss it, and whether the applicants had demonstrated sufficient remorse and rehabilitation prospects to warrant a reduction in their non-parole periods.

The court found that the delay in making the application was not a valid reason to dismiss it, as the legislation did not set a fixed time for making the application. The court also found that both applicants had demonstrated remorse and had good prospects of rehabilitation. They had assisted the police in their enquiries and had shown remorse for their actions. The court concluded that the purpose of fixing a non-parole period was to provide for mitigation of the punishment of the prisoner in favour of rehabilitation through conditional freedom. Having regard to all the circumstances of the case, the court found that the applicants' non-parole periods should not be reduced.

The court dismissed the application for a reduction in the non-parole periods of Heiss and Kamm. The court found that the applicants had been punished sufficiently for their crimes, and that their prospects of rehabilitation were good. The court also noted that once the non-parole period had expired, it was the function of the Parole Board to determine if and when a prisoner was suitable for release and to determine the conditions under which he or she would be released back into the community. The court emphasised that the conditions of parole remained for the rest of a prisoner’s life, and if breached, their parole could be breached.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the Director of Public Prosecutions, Mr Wild QC, pointed out that the Act provides in sub-s 19(2)(a) that the application cannot be made “earlier than 12 months” but that there was no fixed time for the making of the application thereafter. Notwithstanding that, Mr Wild QC was unaware, and was not aware that the Director was aware, that the delay in making the application caused a problem with the reintegration plans. Conclusions Concerning Heiss I note that the prisoner whilst initially uncooperative assisted the police in their enquiries and was prepared to show the police where the body had been hidden. He also assisted the police in showing them where the guns had been hidden afterwards. The case against him depended on his own admissions. I am satisfied that he has been punished sufficiently for the escapes. His prospects of rehabilitation are now very good. He has shown remorse for his As Southwood J said in Leach v the Queen[13], the purpose of fixing a non- parole period is to provide for mitigation of the punishment of the prisoner in favour of rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum term of imprisonment that justice requires he must serve having regard to all of the circumstances of the case. The non-parole period fixed by the Court when sentencing an offender to Of course, once the non-parole period has expired it is the function of the Parole Board to determine if and when a prisoner is suitable for release and to determine the conditions under which he or she will be released back into the community. Those conditions remain for the rest of a prisoner’s life, and if breached, his parole can be breached. Having regard to all of those factors, the conclusion I have reached is that the application should be dismissed. Circumstances Relating to Peter Michael Kamm Peter Michael Kamm was born on 23 January 1965. As at the date of the Kamm attended Torrens Primary School in Canberra between Years 1 and 5 Kamm left the family home whilst still a teenager and spent a period of time experimenting with drugs, working and “having a good time”. He became addicted to heroin, sought treatment in the ACT and then a few years later had a subsequent problem with amphetamines. He voluntarily attended rehabilitation and overcame his drug problems. Prior to coming to the Northern Territory, he had a conviction in 1978 for His home upbringing was not unusual. He got along well with his parents Kamm has no previous record of violence and has not been convicted of any offences since being imprisoned. His position in relation to the assistance he gave to the authorities is similar to that of Heiss. He showed the police where the body was buried and the case against him depended on admissions at his trial. There is evidence that Kamm was remorseful. During the record of interview on Monday 7 August 1989, he was asked by Detective Hambleton: HAMBLETON: … is it true to say that prior to whole incident taking place it was your intention that between you and Dan that morning Dean Peter Robinson was going to be killed.

Ratio Decidendi

Legal Principle Established

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