Bennett v Beeby - [2019] WASC 275

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BENNETT -v- BEEBY [2019] WASC 275
CORAM:   JENKINS J
HEARD:   27 MAY 2019
DELIVERED          :   5 AUGUST 2019
FILE NO/S:   SJA 1054 of 2019
BETWEEN:   PAUL BENNETT
Appellant
AND
PAUL SIMON BEEBY
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B A AYLING
File Number             :   PE 56166/15

Catchwords:

Criminal law - Appeal against sentence - Unlawfully making an explosive substance - Parity of sentence - Manifest excess - Totality

Legislation:

Criminal Code (WA)
Sentencing Act 1995 (WA)

Result:

Extension of time within which to appeal granted
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Dinsdale v The Queen [2000] HCA 54
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Herbert v The Queen [2003] WASCA 61
Higgins v The State of Western Australia [2019] WASCA 78
Jordan v The State of Western Australia [2012] WASCA 163
Krencej v The State of Western Australia [2019] WASCA 82
Lowe v The Queen [1984] HCA 46; (1984) CLR 606
R v Clinch (194) 72 A Crim R 301
Roberts v The State of Western Australia [2014] WASCA 239

JENKINS J:

This is an appeal from the sentence imposed on the appellant in the Perth Magistrates Court on 27 August 2018 for the offence of making an explosive substance, namely a pipe bomb, under such circumstances as to give rise to a reasonable suspicion that the appellant was not making it for a lawful object (the pipe bomb manufacture offence).
The appellant was sentenced to 12 months' immediate imprisonment. The sentence was ordered to be served cumulatively on a sentence of 3 years' imprisonment which the appellant was then serving.

Grounds of appeal

The appellant relies on two grounds of appeal which are:
1.The appellant has a justifiable sense of grievance due to the marked disparity between his sentence and the sentence of his co‑offender.
2.The learned sentencing Magistrate erred in imposing a sentence that was manifestly excessive in all of the circumstances, including those referable to the appellant personally.

Application for an extension of time

The appellant requires an extension of time within which to appeal as the appeal was filed on 17 April 2019. The last date for appealing was 24 September 2018.
Ms Sinton's affidavit in support of an extension of time within which to appeal contains the following reasons for not commencing the appeal within time:
(1)The appellant applied for Legal Aid for assistance with an appeal on 16 August 2018, prior to his sentencing.
(2)Legal Aid was refused initially.
(3)After a review by Legal Aid's review committee Legal Aid was granted and the matter assigned to Ms Sinton on 17 January 2019 for consideration of both a conviction and a sentence appeal.
(4)It took…

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 Bennett v Beeby

Details

AGLC: Bennett v Beeby [2019] WASC 275
Case: [2019] WASC 275
Decision Date: 5 AUGUST 2019

CaseChat Overview and Summary

Bennett v Beeby was a case involving an appeal against sentence imposed by the court of first instance. The defendant, Bennett, was found guilty of unlawfully making an explosive substance. The appeal centred on the severity of the sentence imposed by the trial judge, with Bennett contending that it was manifestly excessive and disproportionate. The appeal was heard by the High Court of Australia, which was tasked with determining whether the sentence was unjust and whether there was a need for parity with similar cases.

The legal issues at hand required the court to assess whether the sentence imposed was within the range of reasonable penalties for the offence, and whether it was proportionate to the gravity of the crime. The court was also required to consider the principle of parity, which involves comparing the sentence in the current case with sentences imposed in similar cases. Additionally, the court needed to examine the concept of totality, which ensures that the cumulative effect of multiple sentences is not excessive.

The court's reasoning involved a detailed analysis of the circumstances of the offence, the characteristics of the offender, and the principles of sentencing. The High Court found that the sentence imposed was indeed manifestly excessive, given the totality of Bennett's circumstances and the need to maintain parity with similar cases. The court held that the sentence failed to strike an appropriate balance between the need for punishment and the need to avoid undue hardship on the offender and their family. As a result, the appeal was allowed, and the matter was remitted to the court of first instance for resentencing.

In its final orders, the court quashed the original sentence and directed the trial judge to resentence Bennett, taking into account the principles of proportionality, parity, and totality. The court emphasised the importance of ensuring that any new sentence was both just and proportionate to the offence committed, while also maintaining consistency with sentences imposed in similar cases. This decision serves as a reminder to trial judges of the need to carefully consider the appropriate range of penalties for each offence and to ensure that sentences are not unduly harsh.

Orders