Bell v R

Case [2019] NSWCCA 251 23 October 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Bell v R [2019] NSWCCA 251
Hearing dates: 14 October 2019
Decision date: 23 October 2019
Before: Bell P at [1];
Simpson AJA at [2];
R A Hulme J at [3]
Decision:
1. Grant leave to appeal.
2. Uphold the appeal against sentence.
3. Quash the sentence imposed in the District Court on 10 August 2018 and in lieu, impose an aggregate sentence of imprisonment for 7 years 6 months with a non-parole period of 5 years 7 months dating from 18 April 2017. The offender will become eligible for release on parole upon the expiry of the non-parole period on 17 November 2022.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – sexual offences committed against child aged between 10 and 14 years – victim had cognitive impairment – whether errors in assessment of the objective seriousness of offences – asserted errors of failing to take into account the victim’s consent, failing to find that cognitive impairment is a less serious type of aggravating circumstance, and finding that second offence was aggravated by planning – asserted errors rejected – sentencing findings reasonably open to be made – whether sentence is manifestly excessive – issue is whether sentence is proportionate to totality of criminality – substantial degree of accumulation of indicative sentences – subjective matters should not lose force in assessment of aggregate sentence – stern sentence required to respond to s 3A purposes of sentencing – inadequate allowance for favourable aspects of subjective case – sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 61H(1A), 61HD(1A), 61J, 66C(2), 66C(5), 66C(5)(f),
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 21A(2)(n), 53A, 54B(4)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 517; [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dawkins v R [2018] NSWCCA 278
Hogan v R [2008] NSWCCA 150; (2008) 186 A Crim R 52
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nguyen v R (2016) 256 CLR 656; [2016] HCA 17
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Brady (Court of Criminal Appeal (NSW), 3 March 1994, unrep)
R v Fidow [2004] NSWCCA 172
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v McClymont (Court of Criminal Appeal (NSW), 17 December 1992, unrep)
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Nelson [2016] NSWCCA 130
R v West [2014] NSWCCA 250
R v Woods [2009] NSWCCA 55; (2009) 195 A Crim R 173
Ramos v R [2015] NSWCCA 313
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Wakeling v R [2016] NSWCCA 33

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 The Queen [2019] NSWCCA 251
Case: [2019] NSWCCA 251
Decision Date: 23 October 2019

CaseChat Overview and Summary

In Bell v R, the defendant was convicted of two sexual offences committed against a child aged between 10 and 14 years who had a cognitive impairment. The victim had consented to the sexual acts, but the defendant was sentenced to a substantial term of imprisonment. The defendant sought leave to appeal against the sentence, arguing that the sentencing judge had made several errors in assessing the objective seriousness of the offences and that the sentence was manifestly excessive.

The legal issues in this case were whether the sentencing judge erred in failing to take into account the victim's consent, failing to find that the victim's cognitive impairment was a less serious type of aggravating circumstance, and finding that the second offence was aggravated by planning. The court also considered whether the sentence was proportionate to the totality of the defendant's criminality and whether the sentencing judge had inadequately allowed for the favourable aspects of the defendant's case.

The court rejected the defendant's arguments, finding that the sentencing findings were reasonably open to be made on the evidence before the judge. The court held that the victim's consent did not negate the gravity of the offences, and that the cognitive impairment was a significant aggravating factor. The court also found that the second offence was properly characterised as aggravated by planning. The court held that the sentence was not manifestly excessive, as it was proportionate to the totality of the defendant's criminality and served the purposes of sentencing under section 3A of the Sentencing Act. The court found that the sentencing judge had adequately allowed for the favourable aspects of the defendant's case.

The court refused the defendant's application for leave to appeal against the sentence. The court found that the sentence was proportionate to the totality of the defendant's criminality and served the purposes of sentencing. The court held that any errors made by the sentencing judge were not sufficient to warrant interference with the sentence.

Orders