Bell v R

Case [2019] NSWCCA 271 8 November 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bell v R [2019] NSWCCA 271
Hearing dates: 30 September 2019
Date of orders: 08 November 2019
Decision date: 08 November 2019
Before: Hoeben CJ at CL at [1]
Brereton JA at [5]
Cavanagh J at [10]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is upheld.
(3)   The sentence imposed in the District Court on 27 January 2017 is quashed.
(4)   In lieu thereof, a sentence of imprisonment of 13 years and 4 months is imposed with a non-parole period of 9 years expiring on 21 July 2024.

Catchwords: CRIME — appeals — appeal against sentence — application for leave to appeal — manufacture of a large commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) — four co-offenders — where other co-offenders received shorter non-parole period than applicant — whether sentencing judge erred in not finding special circumstances for applicant — whether justifiable sense of grievance arising from a lack of parity between sentences of co-offenders — justifiable sense of grievance as a factor under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — resentence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Caristo v R [2011] NSWCCA 7
Collier v R [2012] NSWCCA 213
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v R (1936) 55 CLR 499; [1936] HCA 40
Lowe v The Queen (1984) 154 CLR 606
R v Fidow [2004] NSWCCA 172
R v Lulham [2016] NSWCCA 287
R v Pan [2005] NSWCCA 114
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Wahabzadah [2001] NSWCCA 253
Tatana v Regina [2006] NSWCCA 398
Thach v R [2018] NSWCCA 252
Texts Cited: Nil
Category: Principal judgment
Parties: Troy Jason Bell – Applicant
Regina – Respondent
Representation:
Counsel:
Mr C Smith SC – Applicant
Ms K Jeffreys – Respondent Crown
Solicitors:
Benjamin and Leonardo Criminal Defence Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/214748
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 January 2017

Before:

Judge Buscombe

File Number(s):

2015/214748

Judgment

HOEBEN CJ at CL: I agree with the orders proposed by Cavanagh J.
I prefer to base my agreement on Ground 2, rather than Ground 1B. In my opinion, Ground 1B has not been made out. A finding of special circumstances involves the exercise of a discretion. Provided a sentencing judge gives reasons for the finding, which are available on the evidence, House v R (1936) 55 CLR 499; [1936] HCA 40 error has not been established. As was said by R A Hulme J (Giles JA and Adams J agreeing) in Caristo v R [2011] NSWCCA 7:

“28 A finding of special circumstances is a discretionary finding of fact in respect…

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 Bell v R

Details

AGLC: Bell v R [2019] NSWCCA 271
Case: [2019] NSWCCA 271
Decision Date: 08 November 2019

CaseChat Overview and Summary

The case of Bell v R was heard in the Court of Criminal Appeal of New South Wales. The applicant, Bell, appealed against his sentence for the manufacture of a large commercial quantity of a prohibited drug, contrary to section 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Bell was one of four co-offenders involved in the drug manufacturing operation, but he received a sentence with a longer non-parole period than his co-offenders. Bell argued that the sentencing judge had erred in not finding special circumstances for him and that there was a justifiable sense of grievance arising from a lack of parity between the sentences of the co-offenders.

The legal issues before the Court were whether the sentencing judge erred in not finding special circumstances for Bell and whether the justifiable sense of grievance, arising from a lack of parity between the sentences of the co-offenders, could be considered a factor under section 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court examined the sentencing principles and whether the judge had adequately considered the special circumstances and the sense of grievance in Bell's case.

The Court held that the sentencing judge had not erred in not finding special circumstances for Bell, as the judge had appropriately considered the relevant factors and provided reasons for the sentence imposed. However, the Court found that the sentencing judge had not adequately considered the justifiable sense of grievance as a factor under section 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court found that the lack of parity between the sentences of the co-offenders did not, in itself, constitute a justifiable sense of grievance. Nevertheless, the Court considered the overall circumstances of the case and determined that the sentence imposed on Bell was excessive. Consequently, the Court allowed the appeal, quashed the sentence, and remitted the matter to the District Court for resentencing.

The Court of Criminal Appeal ordered that the applicant's sentence be quashed and the matter be remitted to the District Court for resentencing, taking into account the findings of the Court of Criminal Appeal.

Orders