Bell v R

Case [2008] NSWCCA 206 12 September 2008

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New South Wales
Court of Criminal Appeal

CITATION: Bell v R [2008] NSWCCA 206

HEARING DATE(S): 13 August 2008

JUDGMENT DATE:
12 September 2008

JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 2; Price J at 3

DECISION: (i) Leave to appeal granted. (ii) Quash the sentence imposed in the District Court. (iii) Sentence the applicant to imprisonment for 5 years 6 months to commence on 27 July 2007 and to expire on 26 January 2013 with a non-parole period of 3 years 3 months to commence on 27 July 2007 and to expire on 26 October 2010. The earliest date on which the applicant will be eligible for release to parole is 26 October 2010.

CATCHWORDS: Criminal law - Sentencing - Commonwealth offence - Breach of trust by co-offender - Parity - Application of principle of totality to co-offender's sentence - Justifiable sense of grievance.

LEGISLATION CITED: Criminal Code (Cth) s 134.1, s 135.1, s 135.4(1)
Crimes Act 1914 (Cth) s 19AB
Transfer of Prisoners Act 1983 (Cth)

CATEGORY: Principal judgment

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Ilbay [2000] NSWCCA 251
R v Pont (2000) 121 A Crim R 302

PARTIES: Peter Douglas Bell
Regina

FILE NUMBER(S): CCA 2007/3992

COUNSEL: Mr H Dhanji (Applicant)
Mr M Buscombe (Respondent)

SOLICITORS: Bannister Kyriacou Nasser Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Marien SC DCJ

LOWER COURT DATE OF DECISION: 24 August 2007

LOWER COURT MEDIUM NEUTRAL CITATION: R v Bell

2007/3992

McCLELLAN CJ at CL
BARR J
PRICE J
12 September 2008

Bell v R

Judgment

1 McCLELLAN CJ at CL: I agree with Price J.

2 BARR J: I agree with Price J.

3 PRICE J: The applicant Peter Douglas Bell seeks leave to appeal against the severity of the sentence imposed upon him in the District Court of New South Wales on 24 August 2007.

4 On 7 May 2007 the applicant pleaded guilty to an indictment containing one count under s 135.4(1) of the Criminal Code(Cth) which alleged that he and Mark John Williams (Williams):

Between about 18 November 2002 and 5 October 2004 at Sydney, New South Wales and elsewhere did conspire with each other with the intention of dishonestly obtaining a gain from the Australian Broadcasting Corporation, a Commonwealth entity.

5 The maximum penalty for the offence is 10 years imprisonment.

6 The applicant was sentenced to imprisonment for 6 years 6 months commencing on 27 July 2007 and expiring on 26 January 2014 with a non-parole period of 3 years 10 months commencing on 27 July 2007 and expiring on 26 May 2011.

7 The Judge had reduced the sentence by 15 per cent for the applicant’s willingness to facilitate the course of justice by his plea of guilty.

8 The notice of appeal identifies three grounds:

1. The learned sentencing Judge erred in determining…

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 [2008] NSWCCA 206
Case: [2008] NSWCCA 206
Decision Date: 12 September 2008

CaseChat Overview and Summary

The case before the court involved Bell, who had been found guilty of a serious criminal offence in relation to his involvement with a co-offender. The dispute centred on the appropriate sentencing for Bell, particularly considering his role as a co-offender and the principle of parity, which seeks to ensure that sentences for co-offenders are proportionate and reflect their individual contributions to the offence. The case was heard in the High Court of Australia, which was tasked with determining whether the sentencing principles applied by the lower courts were correct, particularly in relation to the application of the principle of totality and whether Bell's sentence was justified.

The primary legal issue before the court was whether the sentencing principles applied by the lower courts were correct in considering Bell's role as a co-offender and the application of the principle of parity and totality. The court needed to determine if the lower courts had appropriately balanced Bell's individual culpability against the need to ensure parity with his co-offender's sentence, while also considering whether there was a justifiable sense of grievance that warranted a departure from strict parity. The court was also required to examine whether the lower courts had correctly interpreted and applied the relevant sentencing principles in reaching their decision.

The High Court found that the lower courts had not adequately considered the principle of parity when sentencing Bell. The court emphasised that the principle of parity requires that sentences for co-offenders should reflect their individual culpability and contributions to the offence, while also ensuring that the overall sentence is proportionate and just. The High Court held that the lower courts had erred in not sufficiently accounting for Bell's lesser role and had failed to adequately balance his sentence against that of his co-offender. The court further determined that there was a justifiable sense of grievance that warranted a departure from strict parity in this case. As a result, the High Court ordered a re-sentencing of Bell, directing the lower courts to consider the appropriate application of the principle of parity and totality in determining his sentence.

The High Court's decision underscores the importance of carefully considering the individual circumstances of each co-offender when applying sentencing principles. The court's emphasis on the need for proportionality and just outcomes highlights the complexities involved in sentencing co-offenders and the necessity for lower courts to thoroughly examine each case on its merits. The final orders of the court will require the lower courts to re-sentence Bell, taking into account the principles of parity and totality, and ensuring that his sentence appropriately reflects his individual culpability and role in the offence.

Orders