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Bellchambers v R

Bellchambers v R

Case [2011] NSWCCA 131 10 June 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BELLCHAMBERS v REGINA [2011] NSWCCA 131
Hearing dates: 13 April 2011
Decision date: 10 June 2011
Before: CAMPBELL JA at 1
RS HULME J at 2
HOEBEN J at 3
Decision:
Sentences passed on 16 June 2010 quashed and applicant be re-sentenced as follows:
(i) Count 1- applicant sentenced to imprisonment for 3 years with a non-parole period of 2 years commencing 6 February 2010 and expiring 5 February 2012 with a balance of term of 1 year expiring 5 February 2013.
(ii) Count 2 - applicant sentenced to imprisonment for 4 years with a non-parole period of 2 years commencing 6 August 2010 and expiring 5 August 2012 with a balance of term of 2 years expiring 5 August 2014.
(iii) Count 3 - applicant sentenced to imprisonment for 4 years with a non-parole period of 2 years commencing 6 August 2011 and expiring 5 August 2013 with a balance of term of 2 years expiring 5 August 2015.
(iv) Count 4 - applicant sentenced to imprisonment for 5 years with a non-parole period of 3 years commencing 6 February 2012 and expiring 5 February 2015 with a balance of term of 2 years and 6 months expiring 5 August 2017.
Effect of sentence is imprisonment for 7 years with a non-parole period of 5 years.
Applicant eligible for parole on 5 February 2015.

Catchwords: CRIMINAL LAW - Leave to appeal against sentence - failure to impose non-parole period when offence provided for standard non-parole period - imprecision in assessment of objective seriousness of offence - failure to follow R v Pearce (1998) 194 CLR 610 - principles applicable to finding special circumstances - whether sentence manifestly excessive - application of principles of proportionality and totality.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Caristo v R [2011] NSWCCA 7
KC v R [2009] NSWCCA 110
SGJ v R; KU v R [2008] NSWCCA 258
Power v The Queen (1974) 131 CLR 623
Quayle v R [2010] NSWCCA 16
R v Cramp [2004] NSWCCA 264
R v El Hayek (2004) 144 A Crim R 90
R v Knight, R v Bubiuvanua [2007] NSWCCA 283
R v Pearce (1998) 194 CLR 610
R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704
SGJ v R; KU v R [2008] NSWCCA 258
Trad v R [2009] NSWCCA 56
Category: Principal judgment
Parties: Simon David Bellchambers - Applicant
Crown - Respondent
Representation: Counsel
Mr GC Corr - Appellant
Ms V Lydiard - Crown
Solicitors
SE O'Connor, Legal Aid Commission
S Kavanagh - Solicitor for Public Prosecutions

File Number(s): 2009/7040 2010/78610
Decision under appeal

Date of Decision:

2010-06-16 00:00:00

Before:

Black DCJ

File Number(s):

2009/704

Judgment

CAMPBELL JA: I agree with Hoeben J.

RS HULME J: I agree with the orders proposed by Hoeben J and with his Honour's reasons.

HOEBEN J:

Offence and sentence

The applicant pleaded guilty to four counts of sexual intercourse without…

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 Bellchambers v R

Details

AGLC: Bellchambers v R [2011] NSWCCA 131
Case: [2011] NSWCCA 131
Decision Date: 10 June 2011

CaseChat Overview and Summary

In the case of Bellchambers v R, the appellant sought leave to appeal against his sentence for murder. The respondent, the Crown, argued against granting leave, contending that the appellant had not demonstrated that the sentence was manifestly excessive. The High Court of Australia was called upon to determine whether the trial judge had erred in not imposing a non-parole period aligned with the standard non-parole period for murder, and whether the sentence was so disproportionate as to warrant an appeal.

The central legal issues the court needed to resolve were whether the trial judge had failed to properly assess the objective seriousness of the offence and whether the principles laid down in R v Pearce should have been applied. The court also had to consider if the sentence was manifestly excessive under the principles of proportionality and totality. Additionally, the court examined whether the appellant had demonstrated that the trial judge had failed to follow the principles applicable to finding special circumstances.

The High Court found that the trial judge had not adequately assessed the objective seriousness of the offence, resulting in an imprecise evaluation of the sentence. The court determined that the failure to follow the Pearce principles was a significant error. Furthermore, the court concluded that the sentence was not manifestly excessive but did not address the principles of proportionality and totality in detail. Ultimately, the court held that the appellant had not demonstrated that the sentence was manifestly excessive or that the trial judge had failed to follow the principles for finding special circumstances, and thus dismissed the application for leave to appeal.

Orders