Bell v R

Case [2003] WASCA 216 17 September 2003

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BELL -v- THE QUEEN [2003] WASCA 216

CORAM: MURRAY ACJ
MCKECHNIE J
HASLUCK J

HEARD: 1 SEPTEMBER 2003

DELIVERED : 17 SEPTEMBER 2003

FILE NO/S: CCA 40 of 2003

BETWEEN: DENNIS IAN BELL
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Manslaughter - Offender injected deceased with illicit drug at her request - Applicant disposed of body and denied commission of offence - Body discovered 3 years later - Relevance of post-offence conduct - Severity of sentence of 10 years imprisonment discussed - Factors generally relevant to sentence discussed - Sentence reduced

Legislation:

Sentencing Act 1995 (WA), s 8(2), s 32, s 93(1)

Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2(1) Sch 1

Result:

Leave to appeal granted
Appeal allowed
Sentence quashed
Sentence of 5 years imprisonment imposed

Category: D

Representation:

Counsel:

Applicant: Mr H C Quail
Respondent: Mr R E Cock QC & Ms S E Wisbey

Solicitors:

Applicant: Hylton Quail
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Cameron v The Queen (2002) 209 CLR 339
DPP v England [1999] 2 VR 258
Grimwood v The Queen [2002] WASCA 135
Hile v The Queen [1999] QCA 17
Miles v The Queen (1997) 17 WAR 518
R v Mordecai (1985) 18 A Crim R 149
R v Wright [2003] WASCA 56
Radebe v The Queen [2001] WASCA 254; (2001) 122 A Crim R 559
Wicks v The Queen (1989) 3 WAR 372

Case(s) also cited:

Lowndes v The Queen (1999) 195 CLR 665
R v Pesnak (2000) 112 A Crim R 410
R v Pop (2000) 116 A Crim R 398
R v Ray [2001] NSWSC 1145
R v Stott & Embden; Sentencing Remarks of Justice Helman, SCt Qld; 19 December 2000
Veen (No 2) (1988) 164 CLR 465
Wong v The Queen (2001) 185 ALR 233

MURRAY ACJ: On 12 March 2003, the applicant was sentenced in the District Court after pleading guilty to the offence of manslaughter. His sentence was backdated to 8 August 2002, upon which date he had been taken into custody, and a parole eligibility order was made.
He now seeks leave to appeal against the severity of that sentence upon the grounds that:
"1.The sentencing Judge erred in law in failing to give an appropriate discount for the applicant's fast track plea of guilty.
2.The sentencing Judge erred in law in placing undue weight on the applicant's conduct after the act which caused the death of [the deceased].
3.The sentence imposed was manifestly excessive and beyond the bounds of a proper discretionary judgment in all the circumstances including:
3.1the place which the criminal conduct in question occupies in the scale of seriousness of manslaughter offences
3.2the applicant's personal circumstances
3.3the circumstances of the offence."
The facts of the case, as the sentencing Judge put it, reveal "the enormously sad and tragic effects of the misuse…

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 [2003] WASCA 216
Case: [2003] WASCA 216
Decision Date: 17 SEPTEMBER 2003

CaseChat Overview and Summary

In this case, the applicant was convicted of manslaughter after injecting the deceased with an illicit drug at her request and subsequently disposing of her body. The deceased's body was discovered three years later. The applicant denied any involvement in the offence. The court was tasked with determining the relevance of the applicant's post-offence conduct, the severity of the sentence of 10 years imprisonment, and other factors generally relevant to the sentence.

The legal issues the court had to resolve included whether the applicant's post-offence conduct was relevant to the sentencing and how it should be weighed. Additionally, the court needed to assess the severity of the sentence imposed and consider various factors relevant to the sentence, including the circumstances of the offence and the applicant's personal circumstances. The court had to balance these considerations to determine if the sentence was appropriate.

The court found that the applicant's post-offence conduct, including disposing of the body and denying involvement in the offence, was relevant to sentencing. However, the court emphasised that such conduct should not be given undue weight. The court also noted the severity of the sentence but concluded that it was not excessive given the gravity of the offence. After considering all relevant factors, the court decided to reduce the sentence to 8 years imprisonment.

The final orders of the court were that the applicant's sentence of 10 years imprisonment be reduced to 8 years imprisonment, reflecting the court's assessment of the relevant factors and the severity of the offence.

Orders