Bennett v The Queen - [2011] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0227
SIMON BENNETT	Applicant
v
THE QUEEN	Respondent

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JUDGES	ASHLEY, REDLICH and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 August 2011
DATE OF JUDGMENT	25 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 253
JUDGMENT APPEALED FROM	[2010] VSC 276 (Coghlan J)

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CRIMINAL LAW – Intentionally causing serious injury – Sentence of six years imprisonment with non-parole period of four years – Whether sentence manifestly excessive – Expert evidence of applicant’s mental state at time of offending – Connection between mental disturbance and offending – Continuing mental disturbance – Burden of imprisonment unusually onerous – Verdins principles applied – Application granted, appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Applicant	Self-represented
For the Crown	Mr M Roper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA
REDLICH JA
HANSEN JA:

On 21 April 2010 the applicant, Simon Bennett, pleaded guilty before a judge in the Supreme Court to a count of intentionally causing serious injury. The maximum penalty for the offence is 20 years’ imprisonment. On 17 June 2010 he was sentenced to be imprisoned for six years. The judge fixed a non-parole period of four years.

The applicant was refused leave to appeal against sentence by a single judge of this Court on 12 May this year. He renewed his application. It was that application which was listed before the Court as presently constituted. The parties having consented, the Court decided to entertain at the one time the renewal application and the appeal which would ensue if the application was granted. That was appropriate to the circumstances of this matter.

The offending

The offending can be simply described. The applicant is a man born 13 March 1979, and thus now aged 32. The victim, a man whom it is sufficient to refer to as W, had been known to the applicant since the mid 1990s. Some few weeks before the assault, which took place on 29 April 2009, the applicant went to live at W’s rented premises in East Malvern. There was an issue whether the applicant requested W to provide accommodation, or whether W extended an invitation to the applicant to stay with him. Nothing immediately turns on it.

In any event, for reasons which must be later discussed, the applicant was drinking alcohol to excess at the time. There was increasing unhappiness between them, to some of the detail of which we will later refer. On the day of the offending, there was argument about the applicant drinking on the premises. The argument escalated. The applicant invited W to hit him. W declined. There was then a threat by the applicant to kill W. The latter rang the police and reported an emergency. The applicant made further threats to kill. Then, very shortly before he assaulted W, according to the Crown case, the applicant said ‘you killed my sugar daddy, now it’s time to kill you’.

The attack consisted of the…

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 [2011] VSCA 253
Case: [2011] VSCA 253
Decision Date: 25 August 2011

CaseChat Overview and Summary

Bennett, an appellant, faced the Crown in a criminal matter where the dispute centred on the severity of the sentence imposed on the appellant for intentionally causing serious injury. The case was heard in the High Court of Australia. The appellant had been sentenced to six years' imprisonment with a non-parole period of four years. The appellant contested the sentence, arguing that it was manifestly excessive. The appellant's arguments were supported by expert evidence relating to the appellant's mental state at the time of the offence and the ongoing mental disturbance, which was said to have played a significant role in the offending behaviour. The appellant also contended that the burden of imprisonment would be unusually onerous given his mental condition.

The court was required to determine whether the sentence imposed was manifestly excessive and whether the appellant's mental state at the time of the offence, and the ongoing mental disturbance, should be considered in assessing the appropriate sentence. The court needed to weigh the principles of Verdins, which guide the assessment of the severity of a sentence in relation to the crime committed and the offender's circumstances. The court also needed to consider whether the appellant's mental condition should result in a lesser sentence, as the burden of imprisonment would be unusually onerous for him.

The court granted the appellant leave to appeal against the sentence, finding that the sentence was indeed manifestly excessive. The court accepted the expert evidence regarding the appellant's mental state at the time of the offence and the connection between his mental disturbance and the offending behaviour. The court also found that the appellant's continuing mental disturbance made the burden of imprisonment unusually onerous. The court applied the Verdins principles and re-sentenced the appellant, imposing a sentence of five years' imprisonment with a non-parole period of three years.

The High Court allowed the appeal and re-sentenced the appellant to five years' imprisonment with a non-parole period of three years. This decision reflects the court's consideration of the appellant's mental state at the time of the offence, the connection between the mental disturbance and the offending behaviour, and the ongoing mental disturbance, which made the burden of imprisonment unusually onerous. The court's decision demonstrates the importance of considering an offender's mental condition when determining an appropriate sentence.

Orders

Orders of the court

In our opinion, the applicant should be granted leave to appeal against sentence, the appeal should be allowed, and the applicant should be re-sentenced. We will impose a sentence of five years’ imprisonment, and we will fix a non-parole period of three years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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