Banks v R - [2018] NSWCCA 41

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Banks v R [2018] NSWCCA 41
Hearing dates: 30 January 2018
Date of orders: 21 March 2018
Decision date: 21 March 2018
Before: Simpson JA
R A Hulme J
Hidden AJ
Decision:
Leave to appeal granted. Appeal allowed.
The sentence in the District Court is quashed and, in lieu, the applicant is sentenced to imprisonment for a non-parole period of 2 years and 9 months, commencing on 31 March 2024 and expiring on 30 December 2026, and a balance of term of 1 year, commencing on 31 December 2026 and expiring on 30 December 2027.

Catchwords: CRIMINAL LAW – sentence appeal – reckless wounding in company – challenge to sentencing judge’s assessment of objective gravity of the offence – sentence wholly accumulated upon lengthy sentences applicant already serving – proportion of effective non-parole periods to overall sentence – re-sentence – partial accumulation ordered.
Legislation Cited: Crimes Act 1900 (NSW) ss 35, 59
Crimes (Sentencing Procedure) Act 1999 s 56
Cases Cited: Jinnette v R [2012] NSWCCA 217
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v Jeremiah [2016] NSWCCA 241
Salafia v R [2015] NSWCCA 141
Category: Principal judgment
Parties: Regina
Ben Christopher Banks
Representation:
Counsel:
N Adams – (Crown)
G Jones – (Applicant)
Solicitors:
Solicitor for the Director of Public Prosecutions
George Sten & Co

File Number(s): 2016/84848
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 March 2017

Before:

McLennan DCJ

File Number(s):

2016/84848

Judgment

THE COURT: The applicant, Benjamin Christopher Banks, seeks leave to appeal against the sentence imposed upon him after he pleaded guilty in the District Court to reckless wounding in company, an offence under s 35(3) of the Crimes Act1900 which carries a maximum sentence of 10 years imprisonment and a standard non-parole period of 4 years. He was sentenced to imprisonment for 4 ½ years, comprising a non-parole period of 3 years and 3 months and a balance of term of 15 months, commencing on 31 December 2025. The offence took place at Parklea Correctional Centre, and at the time he was sentenced he was serving another sentence in respect of which he is eligible for release on parole on that date.

Facts

The agreed facts were that in the early afternoon of 15 July 2015, the applicant, Brandon Moussa and Michael De Gruchy (the victim) were out of their cells during a recreational period. They were standing in a corridor, where there was a public phone box. At the end of the corridor, near the phone box, Moussa pushed De Gruchy up against the wall and punched him several times. While this was happening, the applicant walked towards the victim and stabbed him with a gaol made weapon known as a “shiv”. He then handed the weapon to another inmate, who disposed of it in a nearby bin.
The victim called for assistance, and…

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 Banks v R

Details

AGLC: Banks v The Queen [2018] NSWCCA 41
Case: [2018] NSWCCA 41
Decision Date: 21 March 2018

CaseChat Overview and Summary

The appellant, Banks, was convicted of recklessly wounding another person while acting in company. Banks was sentenced to a term of imprisonment, with the sentencing judge deeming the objective seriousness of the offence to be high. Banks subsequently appealed against the sentence, arguing that the sentencing judge had erred in assessing the objective gravity of the offence and that the sentence should not be wholly accumulated upon the lengthy sentences Banks was already serving. The appeal was heard by the court of criminal appeal, which had to determine whether the sentencing judge’s assessment of the objective seriousness of the offence was correct, and whether the sentence imposed was appropriate in light of the lengthy sentences Banks was already serving.

The court considered the legal principles applicable to the assessment of the objective seriousness of an offence and the appropriateness of a sentence in light of other sentences being served concurrently. The court found that the sentencing judge had not erred in assessing the objective seriousness of the offence, and that the sentence imposed was appropriate in light of the circumstances of the case. However, the court also found that the sentence should not be wholly accumulated upon the lengthy sentences Banks was already serving, and that a proportion of the effective non-parole periods should be served concurrently with those sentences.

Accordingly, the appeal was allowed, and the court ordered a re-sentencing hearing. At the re-sentencing hearing, the sentencing judge ordered that Banks’ sentence be partially accumulated upon the sentences he was already serving. The final orders of the court reflected this decision, with Banks’ sentence being amended to reflect the partial accumulation of his sentences.

Orders