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Beale v R

Beale v R

Case [2015] NSWCCA 120 29 May 2015

Sentencing

Joint Criminal Enterprise

Moral Responsibility

Totality Principle

Special Circumstances

Criminal Law

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Beale v R
Medium Neutral Citation:	[2015] NSWCCA 120
Hearing Date(s):	20 May 2015
Date of Orders:	29 May 2015
Decision Date:	29 May 2015
Before:	Hoeben CJ at CL at [1] R A Hulme J at [2] Beech-Jones J at [6]
Decision:	(1) Leave to appeal be granted; and (2) The appeal be dismissed.
Catchwords:	SENTENCE APPEAL – two serious home invasions – seven offences – aggregate sentence imposed – whether sentencing judge attributed “moral responsibility” for all acts of participants in joint criminal enterprise to the applicant – approach to sentencing where evidence does not enable differentiation between participants in joint criminal enterprise – risk of institutionalisation – special circumstances – whether sentencing judge erred in not finding special circumstances even though applicant institutionalised – totality – alleged error in failing to have adequate regard to totality – whether aggregate sentence manifestly excessive. HELD: no error shown – leave to appeal granted but appeal dismissed.
Legislation Cited:	- Crimes Act 1900 – s 86; s 97, s 105A, s 112, s 113, s 154F, s 195A - Crimes (Sentencing Procedure) Act 1999 – s 44, s 53A
Cases Cited:	- AB v R [2014] NSWCCA 31 - Behman v R [2014] NSWCCA 239 - Cullen v R, [[2014] NSWCCA 162 - House v R [1936] HCA 40; 55 CLR 499 - Jackson v R [2010] NSWCCA 162 - Jinnette v R [2012] NSWCCA 217 - JM v R [2014] NSWCCA 297 - KR v R [2012] NSWCCA 32 - Markarian v R [2005] HCA 25; 228 CLR 357 - Martin v R [2014] NSWCCA 124 - Mill v R [1988] HCA 70; 166 CLR 59 - Pearce v R [1998] HCA 57; 194 CLR 610 - PD v R [2012] NSWCCA 242 - R v Brown [2012] NSWCCA 199 - R v Carter [2003] NSWCCA 243 - R v JW [2010] NSWCCA 49 - R v Olbrich [1999] HCA 54; 199 CLR 270 - R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 - R v Sukkar [2011] NSWCCA 140 - R v Tuuta [2014] NSWCCA 40 - R v Wright [2009] NSWCCA 3 - RL v R [2015] NSWCCA 106 - SHR v R [2014] NSWCCA 94
Category:	Principal judgment
Parties:	Dwayne Beale – Applicant Director of Public Prosecutions – Respondent
Representation:	Counsel: C.J. Bruce SC – Applicant Ms S. Dowling SC – Respondent Solicitors: Aboriginal Legal Service – Applicant Director of Public Prosecutions – Respondent
File Number(s):	2012/215302; 2012/302208
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	27/02/2014
Before:	Colefax DCJ
File Number(s):	2012/215302 2012/302208

JUDGMENT

HOEBEN CJ at CL: I agree with Beech-Jones J.
R A HULME J: I agree with the reasons of Beech-Jones J and with the orders he proposes.
In relation to Ground 3, the manner in which the learned sentencing judge approached the task of applying the…

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 Beale v R

Details

AGLC: Beale v R [2015] NSWCCA 120
Case: [2015] NSWCCA 120
Decision Date: 29 May 2015

CaseChat Overview and Summary

In Beale v R, the appellant challenged his sentence for involvement in two serious home invasions, in which he was convicted of seven offences. The case was heard in the High Court of Australia. The appellant contended that the sentencing judge had not properly considered the principles of moral responsibility, special circumstances, and the totality of the sentence. He argued that he should not bear full responsibility for all acts committed by participants in the joint criminal enterprise, and that the risk of institutionalisation should have been recognised as a special circumstance.

The court examined whether the sentencing judge had erred in attributing full moral responsibility to the appellant for all acts committed by participants in the joint criminal enterprise, and whether there was a failure to consider special circumstances and the totality of the sentence. The court found that the sentencing judge had correctly applied the principles of moral responsibility, and that there was no error in the approach taken to attributing responsibility. The court also found that there was no error in the sentencing judge's failure to find special circumstances, as there was no evidence of institutionalisation. The court held that the sentence, while severe, was not manifestly excessive when considering the totality of the appellant's offending.

The High Court dismissed the appeal and granted leave to appeal. The appeal was ultimately dismissed, affirming the original sentence imposed by the sentencing judge.

Orders