Bennett v The Queen - [2015] NSWCCA 56

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Bennett v R
Medium Neutral Citation:	[2015] NSWCCA 56
Hearing Date(s):	20 March 2015
Decision Date:	8 April 2015
Before:	Simpson J at [1] Rothman J at [2] Adamson J at [3]
Decision:	1. Grant leave under rule 4 of the Criminal Appeal Rules 1952 (NSW) in respect of the first ground of appeal against conviction. 2. Dismiss the appeal against conviction. 3. Refuse leave to appeal against sentence.
Catchwords:	CRIMINAL LAW – statutory amendment required two counts to be included on indictment for conspiracy although single conspiracy alleged – defence at trial did not differentiate between periods of the respective counts as far as appellant’s intention concerned – whether trial judge’s direction to return consistent verdicts in answer to jury’s question gave rise to miscarriage of justice in circumstances where defence counsel agreed with the direction – appellant bound by counsel’s conduct of trial CRIMINAL LAW – appeal against sentence – parity and proportionality – whether sentences gave rise to justifiable grievance when compared with sentences imposed on co-conspirators CRIMINAL LAW – appeal against sentence – whether cumulative sentence manifestly excessive – appropriate approach where offending conduct comprised one conspiracy
Legislation Cited:	Crimes Act 1914 (Cth), ss 29D, 86 Criminal Appeal Rules 1952 (NSW), r 4 Criminal Code Act 1995 (Cth), s 135.4
Cases Cited:	Agius v The Queen [2013] HCA 27; 248 CLR 601 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 James v The Queen [2014] HCA 6 Lane v R [2013] NSWCCA 317 Pemble v The Queen [1971] HCA 20; 124 CLR 107 R v Birks (1990) 19 NSWLR 677 R v Agius; R v Zerafa [2012] NSWSC 978 R v Green; R v Quinn [2011] HCA 49; 244 CLR 462 R v Ronen [2006] NSWCCA 123 R v Zerafa [2013] NSWCCA 222 Wong v The Queen [2001] HCA 64; 207 CLR 584
Category:	Principal judgment
Parties:	Mark Patrick Bennett (Appellant) Regina (Respondent)
Representation:	Counsel: A Francis (Appellant) S McNaughton SC (Respondent) Solicitors: Legal Aid New South Wales (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2009/2756562009/275671
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal
Date of Decision:	9 October 2013
Before:	Jeffreys DCJ
File Number(s):	2009/275656 2009/275671

JUDGMENT

SIMPSON J: I agree with Adamson J.
ROTHMAN J: I agree with Adamson J
ADAMSON J: On 23 March 2012, following a trial by jury before Jeffreys DCJ, the appellant was convicted of one count of conspiring to defraud the Commonwealth and one count of conspiring with the intention of dishonestly causing a loss to the Commonwealth. On 9 October 2013 the appellant was sentenced on the first count to a term of imprisonment of 12 months commencing on 9 October 2013 and on the second count to a term of imprisonment of three years and nine months commencing on 8 October 2014. The non-parole…

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 The Queen

Details

AGLC: Bennett v The Queen [2015] NSWCCA 56
Case: [2015] NSWCCA 56
Decision Date: 8 April 2015

CaseChat Overview and Summary

In the case of Bennett v The Queen, the appellant was convicted of conspiracy to defraud, involving multiple counts of fraud committed over a period of time. The dispute arose from the appellant's challenge to both the conviction and the sentence imposed. The High Court of Australia was tasked with determining whether the trial had been fair and whether the sentence was proportionate and just. The legal issues before the court included whether the trial judge's direction to the jury to return consistent verdicts, despite the appellant's single conspiracy defence, had resulted in a miscarriage of justice, and whether the sentence imposed was disproportionately harsh when compared to sentences given to co-conspirators.

The court found that the appellant's defence counsel had not objected to the trial judge's direction, and therefore, the appellant was bound by the conduct of the counsel. The court held that there had been no miscarriage of justice because the direction did not prejudice the appellant's case. Regarding the sentence, the court considered whether the cumulative sentence was manifestly excessive. The court held that the sentence was proportionate to the offending, considering the totality of the conspiracy and the appellant's role in it. The court also noted that the sentence was not disproportionately severe when compared to sentences imposed on other co-conspirators.

The High Court upheld the conviction and the sentence imposed on the appellant. The court found that the trial had been conducted fairly, and the sentence was proportionate and appropriate given the nature of the conspiracy and the appellant's role within it. The appeal against both conviction and sentence was dismissed.

Orders