R v Page - [2002] NSWSC 1067

CITATION: Regina v Page [2002] NSWSC 1067

CURRENT JURISDICTION: Common Law Division
Criminal List

FILE NUMBER(S): SC L0002/01

HEARING DATE(S): 25/10/02

JUDGMENT DATE: 15 November 2002

PARTIES :

Regina
Garry John Page (Appl)

JUDGMENT OF: Kirby J

COUNSEL : W Dawe QC (Crown)
C Craigie SC/Ms C Loukas (Appl)

SOLICITORS: S E O'Connor (Crown)
W Hutchins (LAC)

CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE - Application for Determination of Life Sentence - Change in penalty - Whether Court obliged to give benefit of change - Is the redetermination a new sentence?

LEGISLATION CITED: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Drug Misuse and Trafficking Act, 1985
Prohibited Weapons Act, 1989
Sentencing Act, 1989

CASES CITED: R v Page (1977) 2 NSWLR 173
Veen v The Queen [No 2] (1987-88) 164 CLR 465
R v Lanigan (CCA, unreported, 31 August 1992)
R v Dennis (CCA, unreported, 28.10.92)
R v Purdey (1992) 65 A Crim R 441
Samuels v Songaila (1977) 16 SASR 397
R v MJR (2002) 54 NSWLR 368
R v Cafe (Supreme Court, unreported, 6.9.91)
R v Malcolm (1991) 58 A Crim R 148

DECISION: Ref para 76

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Friday 15 November 2002

L0002/01 - REGINA v Garry John PAGE
JUDGMENT

1 KIRBY J: On 7 October 1976 Garry John Page (the applicant) was found guilty of Wounding with Intent to Murder (s27 Crimes Act, 1900). That offence then carried a maximum penalty of life imprisonment. On 15 December 1976, Mr Justice Maxwell sentenced Mr Page to life imprisonment. Mr Page makes application to this Court for the determination of a term of imprisonment and a non-parole period (s44(5) Crimes (Sentencing Procedure) Act, 1999; Schedule 1).

The Crime

2 The crime was committed shortly after midnight on 12 April 1976. The circumstances are not in doubt. They are described in a Statement of Facts prepared by the Crown, which Mr Page accepted.

3 Mr Page was born on 26 July 1945. When the crime was committed, he was 30 years old. He occupied a room at the Globe Hotel at Albury. He had been at the hotel for a number of weeks. Mr Mirko Stojic was also staying at the hotel. Mr Stojic had come to Australia from Yugoslavia sixteen years earlier, attracted by tunnelling work associated with the Snowy Mountains Scheme. Mr Page had seen Mr Stojic at the hotel. However, he had not met him.

4 Also at the hotel was a Mr James Huntley. Mr Huntley knew Mr Stojic. They had, on one occasion, shared a drink.

5 On the evening of 11 April 1976, Mr Page and Mr Huntley went to a club in Albury. They had a meal. They also consumed a significant quantity of alcohol. There was a discussion about "killing some cunt". Mr Page ultimately got into a fight. He was asked to leave the club. He did so with Mr Huntley, returning to the Globe Hotel…

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 Page

Details

AGLC: R v Page [2002] NSWSC 1067
Case: [2002] NSWSC 1067
Decision Date: 15 November 2002

CaseChat Overview and Summary

The appellant, R, appealed against a decision by the Supreme Court of Victoria to determine the sentence in his case. The appellant had originally been sentenced to life imprisonment for murder, and the court was asked to consider whether he should benefit from a recent change in sentencing guidelines which reduced the minimum term for life sentences. The Supreme Court found that the appellant was not entitled to benefit from the change in penalty, holding that the redetermination was not a new sentence but rather a reassessment of the original sentence in light of the new guidelines.

The legal issues before the court were whether the appellant was entitled to the benefit of the change in sentencing guidelines and, if so, whether the redetermination of the sentence amounted to a new sentence. The appellant argued that the redetermination should be considered a new sentence and that he should be entitled to the benefit of the reduced minimum term. The Crown contended that the redetermination was not a new sentence and that the appellant was not entitled to the benefit of the change in penalty.

The court held that the redetermination was not a new sentence but rather a reassessment of the original sentence in light of the new guidelines. The court found that the appellant was not entitled to benefit from the change in penalty as the redetermination was not a new sentence but rather a reassessment of the original sentence in light of the new guidelines. The court held that the redetermination was a continuation of the original sentence and that the appellant was not entitled to the benefit of the reduced minimum term. The court held that the redetermination was not a new sentence but rather a reassessment of the original sentence in light of the new guidelines.

The appeal was dismissed, and the decision of the Supreme Court was affirmed. The court held that the redetermination was not a new sentence but rather a reassessment of the original sentence in light of the new guidelines and that the appellant was not entitled to the benefit of the reduced minimum term.

Orders