The Queen v Albury - [2004] NTSC 59

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PARTIES: THE QUEEN

ALBURY, Andrew Christopher

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 832057

DELIVERED: 12 November 2004

HEARING DATES: 26 & 27 July and 26 & 27 October 2004

JUDGMENT OF: MARTIN (BR) CJ

CATCHWORDS:

CRIMINAL LAW
Sentencing – murder – life imprisonment – Sentencing (Crime of Murder) Parole Reform Act 2003 – Part 5 Transitional Provisions – application by the Director of Public Prosecutions pursuant to s 19(5) – whether to refuse to fix a non-parole period.

Sentencing (Crime of Murder) Parole Reform Act 2003, s 18 and s 19
Veen v The Queen [No 1] (1979) 143 CLR 458; Veen v The Queen [No 2] (1988) 164 CLR 465, pp 473, 475; considered.

REPRESENTATION:

Counsel:
Plaintiff: R Wild QC & S Ozolins
Defendant: R Goldflam

Solicitors:
Plaintiff: DPP
Defendant: NTLAC

Judgment category classification: A
Judgment ID Number: Mar0414
Number of pages: 27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Albury [2004] NTSC 59
No. 832057

BETWEEN:

THE QUEEN
Plaintiff

AND:

ANDREW CHRISTOPHER ALBURY
Defendant

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 12 November 2004)

Introduction
[1] This is an application by the Director of Public Prosecutions (“the Director”) pursuant to the provisions of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (“the Act”). The respondent is serving a sentence of life imprisonment for the crime of murder. In substance the Director seeks an order revoking the non-parole period of 20 years fixed by the Act together with an order refusing to fix a non-parole period in respect of the sentence.
[2] This application was heard together with an identical application in the matter of R v Martin Leach [2004] NTSC 60. The Act commenced operation on 11 February 2004 and these applications are the first of their type.
History
[3] By indictment dated 2 July 1984 the respondent was charged that on about 25 November 1983 he murdered Gloria Pindan. On 5 July 1984 the respondent was convicted by a jury. As required by the legislation, the learned sentencing Judge sentenced the respondent to imprisonment for life.
[4] The history of the relevant legislation is set out in the reasons for judgment in Leach. At the time the respondent was sentenced the legislation did not permit the court to fix a non-parole period. Imprisonment for life meant imprisonment for the term of the respondent’s natural life without any possibility of release other than by way of Executive clemency.
The New Scheme
[5] The relevant provisions of the Act, including the transitional provisions, are set out in the reasons for judgment in Leach. By the operation of s 18, a non-parole period of 20 years has been fixed in respect of the sentence of life imprisonment currently being served by the respondent. The Director…

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 The Queen v Albury

Details

AGLC: The Queen v Albury [2004] NTSC 059
Case: [2004] NTSC 59
Decision Date: 12/11/2004

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the case of The Queen v Albury, Andrew Christopher concerns an application by the Director of Public Prosecutions to revoke a non-parole period of 20 years fixed by the Sentencing (Crime of Murder) Parole Reform Act 2003, and to refuse to fix a new non-parole period. Albury, the respondent, is serving a life sentence for murder. The primary legal issues are whether the court should set aside the fixed non-parole period and refuse to fix a new one, given the extreme nature of the crime and Albury's high likelihood of reoffending if released.

The court found that Albury's culpability was extremely high, as he not only intended to kill but also enjoyed the violence and the act of killing. The brutal nature of the crime, including the mutilation of the victim's body, underscored this culpability. Additionally, the court accepted evidence indicating that Albury is a violent and dangerous individual who would almost certainly kill again if released. Despite this, the court emphasised that while the protection of society is an important factor, a sentence cannot be extended beyond what is proportionate solely for this purpose. The court also highlighted that it is not sentencing afresh but considering an application under the Act's directions.

Ultimately, the court concluded that Albury's level of culpability was so extreme that the community interest in retribution, punishment, protection, and deterrence could only be met by imprisoning him for life without parole. Therefore, the court revoked the 20-year non-parole period and refused to fix a new one.

Orders