Legal Research
Cases
Beniamini v Stormon

Beniamini v Stormon

Case [2014] ACTSC 2 22 January 2014

Appeal

Sentencing

Manifestly Excessive Sentence

Principle of Parsimony

Criminal Law

Type to search within this case.

ADAM BENIAMINI v FELICITY STORMON, KARA CHAPMAN AND MONIQUE FACCIN
[2014] ACTSC 2 (22 January 2014)

APPEAL AND NEW TRIAL – In General and Right of Appeal – Appeal against sentence – offence of assault – Imprisonment for seventeen months - Sentence manifestly excessive – Offence not in worst category – Appeal upheld – Offender to be re-sentenced.
APPEAL AND NEW TRIAL – In General and Right of Appeal – Appeal against sentence – Offence of intentionally causing damage – Imprisonment for three months – Not manifestly excessive.
APPEAL AND NEW TRIAL – In General and Right of Appeal – Appeal against sentence – Principle of parsimony – Principle explained.

Bail Act 1992 (ACT), s 49
Crimes Act 1900 (ACT), s 26
Crimes (Sentence Administration) Act 2005 (ACT), s 116ZP
Crimes (Sentencing) Act 2005 (ACT)), ss 10(2), 33(1)
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10, Div 3.10
Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)

Criminal Code 2002 (ACT), ss 321, 403

Anderson (1987) 32 A Crim R 146
Blundell v The Queen (2008) 70 NSWLR 660
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Dinsdale v The Queen (2000) 202 CLR 321
Director of Public Prosecutions v Malikovski [2010] VSCA 130
Grimshaw v Mann [2013] ACTSC 189
Halden v The Queen (1983) 9 A Crim R 30
Hoare v The Queen (1989) 167 CLR 348
Lewis v Chief Executive, Department of Justice and Community Safety [2013] ACTSC 198
Ly v The Queen [2007] NSWCCA 28
R v Bell [2005] ACTSC 123
R v J W [2010] NSWCCA 49
R v Roadman (1990) 47 A Crim R 181
R v TW (2011) 6 ACTLR 18
R v Valentini (1980) 48 FLR 416
Saddler v Pavicic [2011] ACTSC 199
The Queen v De Simoni (1981) 147 CLR 383
Veen v The Queen (No 2) (1988) 164 CLR 465
Webb v O’Sullivan [1952] SASR 65

No. SCA 65 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 22 January 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCA 65 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:ADAM BENIAMINI

Appellant

AND:FELICITY STORMON

First Respondent

KARA CHAPMAN
Second Respondent

MONIQUE FACCIN
Third Respondent

ORDER

Judge:  Refshauge J
Date:  22 January 2014
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The sentence imposed on Adam Beniamini on 4 September 2013 for intentionally causing damage to property on 16 March 2012 and for assault on 16 March 2012 be set aside.

Adam Beniamini be re-sentenced.

From about 2007, Adam Beniamini, the appellant, was in a relationship with a young woman, to whom I will refer as AEL. There were two children of the relationship.

Ongoing conflict, however, marred the relationship, apparently caused largely by Mr Beniamini’s ongoing abuse of alcohol. It appears that the relationship broke down between about October 2011 and March 2012.

On 23 November 2011, Mr Beniamini went to AEL’s house to see the children but AEL refused to…

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 Beniamini v Stormon

Details

AGLC: Beniamini v Stormon [2014] ACTSC 2
Case: [2014] ACTSC 2
Decision Date: 22 January 2014

CaseChat Overview and Summary

In the case of Beniamini v Stormon, the appellant, Adam Beniamini, challenged the sentences imposed upon him by the Magistrates' Court of Victoria. Beniamini was convicted of two offences: intentionally causing damage to property and assault. He was sentenced to a total imprisonment of twenty months, consisting of seventeen months for the assault and three months for the property damage, to run concurrently. Beniamini appealed the severity of the sentence, particularly the term for the assault, arguing it was manifestly excessive.

The court was required to determine whether the sentence was indeed manifestly excessive, thereby warranting an appeal and a re-sentencing. The principles guiding the court included the principle of parsimony, which emphasises the need for courts to avoid excessive sentences unless the circumstances of the offence justify it. The court also considered the nature and seriousness of the offences, and whether the sentence imposed was commensurate with the gravity of the crimes committed.

The court found that the sentence for the assault was manifestly excessive given the offence was not in the worst category and the principle of parsimony applied. The sentence for the property damage was not found to be manifestly excessive. Consequently, the appeal was upheld, and the sentence for the assault was set aside. The court ordered that Beniamini be re-sentenced for the assault, while the sentence for the property damage remained unchanged.

The final orders of the court were that the appeal be upheld, the sentence for the assault be set aside, and Beniamini be re-sentenced for that offence. The sentence for the property damage remained intact. This ruling underscores the importance of adhering to the principle of parsimony and ensuring sentences are proportionate to the nature and seriousness of the offences committed.

Orders

Orders of the court

1. The appeal be upheld.

2. The sentence imposed on Adam Beniamini on 4 September 2013 for intentionally causing damage to property on 16 March 2012 and for assault on 16 March 2012 be set aside.

3. Adam Beniamini be re-sentenced.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Beniamini v Stormon [2014] ACTSC 2

Most Recent Citation

R v Beniamini [2014] ACTSC 40

Cases citing this decision · 10 of 10 shown

Director of Public Prosecutions v Pah Eh
[2024] ACTSC 55 Para 88

…In Beniamini v Stormon [2014] ACTSC 2 at [88]-[93], Refshauge J analysed some of the authorities concerning the “principle” and its status in sentencing. His Honour pointed to the considerable difficulties with its application as a principle in the terms described by Napier CJ. His Honour then concluded at [93]:…
R v Carberry
[2022] ACTSC 208 Para 1

…lly applies in sentencing in any event: Webb v O'Sullivan [1952] SASR 65 at 66. See, however, the discussion of this principle in Beniamini v Stormon [2014] ACTSC 2 at [88]–[93].…
R v Peric
[2022] ACTSC 385 Para 1

…hoking, to the victim. The offences were also committed in the presence of the children, a further seriously aggravating feature: Beniamini v Stormon [2014] ACTSC 2 at [97].…
R v McHughes (No 3)
[2021] ACTSC 344 Para 1

…15] ACTCA 21 at [54]–[56] and is embodying the principle of parsimony. See also Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 , Beniamini v Stormon [2014] ACTSC 2 , R v Hagen [2014] ACTSC 129 and R v Carmody (No 3) [2017] ACTSC 60.…
R v Crawford (No 1)
[2020] ACTSC 245 Para 1

…gravation of the offence. This is especially so when the offence was committed, as in this case, in the presence of children: see Beniamini v Stormon [2014] ACTSC 2 at [97]. The intrusion was unacceptable and effectively a home invasion. In the light of their relationship, Mr Crawford’s ex-partner may not have be…
R v Beniamini (No 2)
[2017] ACTSC 32 Para 1

…The first appeal which I heard from sentences imposed in the Magistrates Court in Beniamini v Storman [2014] ACTSC 2 involved domestic violence offences to which Mr Beniamini pleaded guilty, but in the appeal he challenged the sentences. Those offences were committed during the currency of the earlier Good Behavi…
Beniamini v Storman (No 2)
[2017] ACTSC 31 Para 1

…ourt instituted by Adam Beniamini who had been convicted of offences of intentionally causing damage to property and assault. See Beniamini v Storman [2014] ACTSC 2.…
Beniamini v Craig
[2017] ACTSC 30 Para 1

…months imprisonment. He appealed against the two sentences of imprisonment and, on 22 January 2014, I set aside those sentences: Beniamini v Storman [2014] ACTSC 2.…
Allred v The Queen
[2015] ACTCA 21 Para 1

…In Beniamini v Stormon [2014] ACTSC 2 at [88]-[93], Refshauge J analysed some of the authorities concerning the “principle” and its status in sentencing. His Honour pointed to the considerable difficulties with its application as a principle in the terms described by Napier CJ. His Honour then concluded at [93]:…
R v Beniamini
[2014] ACTSC 40 Para 1

…August 2013, but I have upheld an appeal against the sentence imposed in the Magistrates Court and must now re-sentence him. See Beniamini v Stormon [2014] ACTSC 2.…

View all 10 citing cases →

Cases cited in this decision · 19 of 19 shown

R v Holder
[2019] SASCFC 73

…nally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen , quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47.Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also…
Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory
[2013] ACTSC 198 Para 1

…the order, and full-time custody for the balance of the term of imprisonment. See Lewis v Chief Executive, Department of Justice and Community Safety [2013] ACTSC 198.…
Grimshaw v Mann
[2013] ACTSC 189 Para 1

…Reference was also made to what I had said in Grimshaw v Mann [2013] ACTSC 189, where the appellant in that case had pleaded guilty to an assault on a woman with whom he had been in a relationship. That was also a case which featured an argument by the male ex-partner about access to his children which had been den…
Dean Saddler v Tomislav Neven Pavicic
[2011] ACTSC 199 Para 1

…violence was perpetrated in the presence of children, which increases the seriousness of the offence, as pointed out by Burns J in Saddler v Pavicic [2011] ACTSC 199 at [17]. See also R v Bell [2005] ACTSC 123 at [30].…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described, in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals. I apply them in this case.…
R v Thorn
[2010] ACTCA 10 Para 33

…dentifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion. See also R v Thorn [2010] ACTCA 10 (at [33]).…
DPP v Malikovski
[2010] VSCA 130 Para 1

…ade good use of the delay in sentencing. That justified a reduction in sentence, as held by Nettle JA in Director of Public Prosecutions v Malikovski [2010] VSCA 130 at [38]-[39].…
R v JW
[2010] NSWCCA 49 Para 1

…t a sentencer is permitted to impose a sentence within that range, then the principle is put into a context. The Court is, as was said in R v J W [2010] NSWCCA 49 at [180], permitted to impose a sentence at the bottom of the permissible range but is not required, at the risk of appellable error, to do so. Thus, the…
Hawkins v Hawkins
[2009] ACTSC 148 Para 32

…mmary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]-[35]): 32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]): 46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task.…
The Queen v Morse
[2009] NZCA 51

…34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily…
Blundell v R
[2008] NSWCCA 92 Para 1

…bottom of the permissible range but is not required, at the risk of appellable error, to do so. Thus, the Court has said in Blundell v The Queen (2008) 70 NSWLR 660 at 665; [39], that…
Ly v The Queen
[2007] NSWCCA 28 Para 1

…Court of Criminal Appeal has been cautious in its approach to any such principle, despite its promulgation by Adams J in cases such as Ly v The Queen [2007] NSWCCA 28 at [10].…
Rama v The Queen
[2006] ACTCA 25

…an be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this…
R v Bell
[2005] ACTSC 123 Para 1

…children, which increases the seriousness of the offence, as pointed out by Burns J in Saddler v Pavicic [2011] ACTSC 199 at [17]. See also R v Bell [2005] ACTSC 123 at [30].…
Dinsdale v The Queen
[2000] HCA 54 Para 1

…anifestly excessive sentence would be unreasonable or plainly unjust, as appears from what was said by Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321 at 325; [6].…
Hoare v The Queen
[1989] HCA 33 Para 1

…basic principles of proportionality, that a sentence should never exceed that what is proportionate to the gravity of the offence ( Hoare v The Queen (1989) 167 CLR 348 at 354), and the statutory requirements such as that imprisonment is the sentence of last resort (as in s 10(2) of the Crimes (Sentencing) Act 2005 (…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…an absence of such history would permit, he could not be further punished for the offences appearing on his criminal record: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477. The last offence of personal violence had been committed in January 2010, over two years before this offence.…
R v De Simoni
[1981] HCA 31 Para 1

…)); to impose a penalty for a separate offence not charged would offend the principles clearly articulated by the High Court in The Queen v De Simoni (1981) 147 CLR 383 at 389-392. I have a concern that the length of the sentence imposed does suggest that it was influenced by these failures.…
McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd
[1980] FCA 159 Para 1

…A similar approach was taken by the Federal Court of Australia in R v Valentini (1980) 48 FLR 416 at 420:…

Legislation cited in this decision · 6

Bail Act 1992 (ACT)
49 2 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
2 mentions (from Para 1)
Crimes Act 1900 (ACT)
26 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
216 2 mentions (from Para 1)
Public Order (Protection of Persons and Property) Act 1971 (Cth)
11(1) 2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
116ZP 1 mention