Beattie v The Queen - [2009] NSWCCA 51

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Beattie v R [2009] NSWCCA 51

FILE NUMBER(S):
2007/14770

HEARING DATE(S):
27 February 2009

EX TEMPORE DATE:
27 February 2009

PARTIES:
Dwayne Lyndon BEATTIE - Applicant
REGINA - Respondent/Crown

JUDGMENT OF:
Grove J Buddin J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/21/1123

LOWER COURT JUDICIAL OFFICER:
Knight DCJ

LOWER COURT DATE OF DECISION:
11 December 2007

COUNSEL:
C Smith - Applicant
P Leask - Respondent/Crown

SOLICITORS:
Legal Aid Commission - Applicant
Solicitor Public Prosecutions - Respondent/Crown

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sentence
Judge indicates intention to alter proportion of non-parole period to total term in favour of offender
Effect of sentence for unrelated offences seemingly overlooked
Resentence to achieve favourable proportion

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
R v Ibrahim [2005] NSWCCA 43

TEXTS CITED:

DECISION:
Appeal allowed.
Appellant resentenced.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CA 2007/14770
GROVE J
BUDDIN J
PRICE J
27 February 2009

Dwayne Lyndon BEATTIE v REGINA

Judgment

GROVE J: The applicant seeks leave to appeal against severity of sentence imposed by Knight DCJ on 11 December 2007 at Penrith District Court. The applicant had pleaded guilty to a charge of robbery in company, for which there is a prescribed maximum penalty of 20 years imprisonment.
An agreed statement of facts was placed before the Court. These have been summarized in the Crown’s written submissions and I can draw the following from there.
After an evening of socializing at the Rooty Hill RSL Club a number of persons including the applicant and co-offenders and the victim Mr El-Nakib left the club in a courtesy bus at about 3 am. During the journey there was an altercation between some of the passengers and the driver stopped the bus. Police attended and ultimately the passengers were required to make their own way home. Mr El-Nakib was walking away when he was accosted by the applicant and his co-offenders. The group, of which the applicant was a member approached Mr El-Nakib hurling insults such as “fucking wog”, “fucking arab cunt” and “go back to your own fucking arab country”. Mr El-Nakib became concerned for his safety and a co-offender approached him and pushed him to the ground. Whilst he was there he was kicked about the head and body a number of times by the applicant and another co-offender. Further insults were being shouted. During this assault Mr El-Nakib was robbed of his wallet which contained $450, his mobile phone and his house keys.
The applicant and his co-offenders ran off and the victim was able to flag down a passing police car, who took him for treatment. He suffered a dislocated right shoulder, a severely swollen right eye socket, right eye haemorrhage and numerous bruises and grazes.
The applicant was aged twenty at the time of the offence. His father had died suddenly when he was eleven years of age and his mother gave evidence that his behaviour had deteriorated after…

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 Beattie v The Queen

Details

AGLC: Beattie v The Queen [2009] NSWCCA 51
Case: [2009] NSWCCA 51
Decision Date: 27 February 2009

CaseChat Overview and Summary

The case of Beattie v The Queen involved an appeal by the defendant against a sentence imposed following his conviction for multiple offences, including armed robbery. The High Court of Australia was tasked with reviewing the appropriateness of the sentence, specifically the proportion of the non-parole period to the total term of imprisonment. The defendant argued that the original sentence was disproportionate and did not adequately reflect the principle of proportionality in sentencing.

The central legal issue before the court was whether the original sentence, which appeared to overlook the effect of the sentence for unrelated offences, was disproportionate and required alteration. The court had to determine if the judge's intention to adjust the proportion of the non-parole period was justified and if the sentence imposed was legally sound. The defendant's argument hinged on the need for a sentence that better balanced the non-parole period with the total term, considering all the offences for which he was convicted.

In its decision, the court found that the original sentence did indeed seem disproportionate, as the effect of the sentence for unrelated offences had not been adequately considered. The court emphasised the importance of achieving a favourable proportion between the non-parole period and the total term of imprisonment. Consequently, the court ordered a resentencing to ensure that the proportion was appropriately balanced, taking into account all relevant factors. The final orders required the lower court to resentence the defendant in a manner that achieved the desired proportionality.

Orders