Gleeson JA at [1] N Adams J at [189] Ierace J at [200]
Decision:
(1) Grant leave to appeal against sentence, including an extension of time to appeal.
(2) Appeal allowed in part.
(3) The sentence imposed in the District Court on 16 August 2020 is quashed.
(4) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 35 years commencing on 14 January 2017 with a non-parole period of 26 years 3 months expiring on 13 April 2043, with the balance of term expiring on 13 January 2052.
Catchwords:
CRIME – Appeals – appeal against sentence – lengthy aggregate sentence for 31 sexual offences against 14 victims – whether error in determination of aggregate sentence – where indicative sentence for one count exceeded maximum penalty for offence – whether error capable of affecting aggregate sentence – requirement to re-sentence given error
CRIME – Appeals – appeal against sentence – where multiple victims of sexual offending – whether failure to consider and apply concurrency, accumulation and totality principle – complaint of lack of transparency in aggregate sentence – extent of reasons required to explain degree of notional concurrency and accumulation when imposing aggregate sentence for multiple offences committed against multiple victims
CRIME – Appeals – appeal against sentence – whether failure to give reasons – where some indicative non-parole periods less than the relevant standard non-parole period – where some indicative non-parole periods two thirds of the indicative sentences – Crimes (Sentencing Procedure) Act 1999, ss 44 and 54B
[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.
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Details
AGLC
Benn v R [2023] NSWCCA 24
Case
[2023] NSWCCA 24
Decision Date
CaseChat Overview and Summary
In the matter of Benn v R, the respondent appealed against the sentence imposed by the Supreme Court of New South Wales, which found him guilty of 31 sexual offences against 14 victims. The respondent argued that the aggregate sentence was erroneous, as the indicative sentence for one count exceeded the maximum penalty for the offence, and that the trial judge failed to consider and apply the principles of concurrency, accumulation, and totality. The respondent also contended that the reasons provided by the trial judge were insufficient to explain the degree of notional concurrency and accumulation when imposing the aggregate sentence.
The legal issues before the court included whether the error in the determination of the aggregate sentence could affect the outcome, and if the failure to consider and apply the principles of concurrency, accumulation, and totality constituted a significant error. The court also had to consider whether the reasons provided by the trial judge were adequate to explain the aggregate sentence imposed. Additionally, the court had to assess whether the trial judge failed to give reasons where some indicative non-parole periods were less than the relevant standard non-parole period, and where some indicative non-parole periods were two-thirds of the indicative sentences.
The court found that there was an error in the determination of the aggregate sentence, as the indicative sentence for one count exceeded the maximum penalty for the offence. This error was capable of affecting the aggregate sentence, and the court required the case to be re-sentenced. The court also found that the trial judge had failed to consider and apply the principles of concurrency, accumulation, and totality, and that the reasons provided by the trial judge were insufficient to explain the degree of notional concurrency and accumulation when imposing the aggregate sentence. The court held that the failure to give reasons where some indicative non-parole periods were less than the relevant standard non-parole period and where some indicative non-parole periods were two-thirds of the indicative sentences, constituted a significant error. The appeal was allowed, and the case was remitted to the Supreme Court of New South Wales for re-sentencing.
The final orders included that the appeal be allowed, and the case be remitted to the Supreme Court of New South Wales for re-sentencing. The court held that the error in the determination of the aggregate sentence and the failure to consider and apply the principles of concurrency, accumulation, and totality constituted significant errors, and that the reasons provided by the trial judge were insufficient to explain the aggregate sentence imposed.