Carr v The Queen [2010] VSCA 200

1 For the following short reasons, the Court is of the view that the appeal should be allowed.

2 The appellant was subject to a sentence of indefinite imprisonment made on 25 May 1995 by a judge of the County Court. A nominal sentence of 12 years was imposed. The Court of Appeal refused leave to appeal.[1]

3 Subsequently, the Director of Public Prosecutions sought a review of the indefinite sentence, as required by s 18H of the Sentencing Act 1991 (Vic) (the 'Act'). The test applicable to that review is set out in s 18M of the Act:

18M Outcome of review

(1) On a review under section 18H(1)(a) or (b) the court, unless it is satisfied (to a high degree of probability) that the offender is still a serious danger to the community, must by order -

(a) discharge the indefinite sentence; and

(b) make the offender subject to a 5 year reintegration program administered by the Adult Parole Board and issue a warrant to imprison in the same way as if it had sentenced the offender to a term of imprisonment for 5 years.

(2) The indefinite sentence continues in force if the court does not make an order under subsection (1).

4 Having heard the evidence, the Chief Judge was satisfied that the appellant was still a serious danger to the community, and declined to make an order under s 18M(1). Under s 18O of the Act, the appellant has exercised his right to appeal to this Court against the refusal of the County Court to make an order under s 18M(1) discharging the indefinite sentence.

5 In support of the appeal, additional medical evidence has been filed concerning both the physical health and life expectancy of the appellant. Importantly, the material demonstrates that the appellant represents a greatly reduced risk as a result of the serious deterioration in his health. That additional material has been received by the Court - without objection from the Director of Public Prosecutions - as fresh evidence. It goes to a matter which was considered by the Court below and shows a significant and material change in the appellant's medical condition in the time since the County Court's review. He is now terminally ill.

6 Having regard to the new material, we could not be satisfied that the offender is still a serious danger to the community. The Crown does not dispute this conclusion. It follows that the appeal must be upheld. Under s 18O(3) of the Act, it therefore falls to us to make the order that we think ought to have been made.

7 Accordingly, the orders of the Court are as follows:

1. The appeal under s 18O(1) of the Sentencing Act 1991 (Vic) is allowed.

2. The indefinite sentence imposed upon the appellant by Judge Lewis on 25 May 1995 is discharged.

3. The appellant be subject to a five year reintegration program administered by the Adult Parole Board.

[1] R v Carr [1996] VicRp 43; [1996] 1 VR 585.