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Bonett v R

Bonett v R

Case [2013] NSWCCA 234 18 October 2013

Manifestly Excessive Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bonett v R [2013] NSWCCA 234
Hearing dates: 9 October 2013
Decision date: 18 October 2013
Before: Gleeson JA at [1]
RA Hulme J at [2]
Adamson J at [3]
Decision:
(1) Refuse leave to amend the application to add proposed ground 7:
The fresh evidence as to the applicant's quasi-custody in this case has given rise to a miscarriage of justice.
(2) Leave to appeal granted.
(3) Appeal dismissed.

Catchwords: CRIMINAL LAW- sentencing- relevance of motive- vigilantism- whether sentencing De Simoni principle infringed by taking into account injuries to victim- whether quasi-custody considered- no submission made at hearing or sufficient evidence adduced- parity- no justifiable sense of grievance- whether sentence manifestly excessive- accumulation required to comprehend criminality- proposed additional ground- fresh evidence
Legislation Cited: - Crimes Act 1900, s 95(1), s 96, s 111(2), s 154A(1)(a), s 166
- Crimes (Domestic Violence) Act 2007, s 13
- Criminal Appeal Act 1912, s 6(3)
- Criminal Procedure Act 1986, s 166, s 168(3), s 268(1A)
- Crimes (Sentencing Procedure) Act 1999, s 44(2), s 53A
Cases Cited: - Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Josefski v R [2010] NSWCCA 41; 217 A Crim R 183
- McKellar v R [2010] NSWCCA 295
- Matthews v R [2013] NSWCCA 187
- Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24
- Quealey v R [2010] NSWCCA 116
- R v Birks (1990) 19 NSWLR 677
- R v Cartwright (1989) 17 NSWLR 243
- R v De Simoni [1981] HCA 31; 147 CLR 383
- R v Fordham (1997) 98 A Crim R 359:
- R v Goodwin (1990) 51 A Crim R 328
- R v LBK [2001] NSWCCA 248
- R v Many (1990) 51 A Crim R 54
- R v Serratore [2000] NSWSC 696
- R v Swan [2006] NSWCCA 47
- Renshaw v R [2012] NSWCCA 91
- Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Amber Shiyera Bonett (Applicant)
Regina (Respondent)
Representation: Counsel: A Francis (Applicant)
S Herbert (Crown)
Solicitors: Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/136398
Publication restriction: Nil
Decision under appeal

Date of Decision:

2012-09-14 00:00:00

Before:

Bennett DCJ

File Number(s):

2010/136398

Judgment

GLEESON JA: I agree with Adamson J.

RA HULME J: I agree with Adamson J.

ADAMSON J: The applicant seeks leave to appeal against an aggregate sentence of imprisonment for four years with a non-parole period of two years imposed by Judge Bennett in the Parramatta District Court on 14 September 2012 following a plea of guilty to the offence of robbery with deprivation of liberty contrary to s 95(1) of the Crimes Act 1900 on 31 May 2010. This offence carries a maximum penalty of twenty years' imprisonment.

A certificate under s 166 of the Criminal Procedure Act 1986 was…

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 Bonett v R

Details

AGLC: Bonett v R [2013] NSWCCA 234
Case: [2013] NSWCCA 234
Decision Date: 18 October 2013

CaseChat Overview and Summary

Bonett v R involved the appellant, the first defendant, who was convicted of armed robbery, wounding, and firearm offences. The case was heard in the High Court of Australia. The primary dispute centred around the sentencing process and the relevance of the appellant's motive, specifically whether it was based on vigilantism. The appellant argued that the trial judge's consideration of his motive and the victim's injuries violated the De Simoni principle, which mandates that the offender's motive should not be a mitigating factor in sentencing. Additionally, the appellant contended that the trial judge did not adequately consider whether quasi-custody was an appropriate sentencing option.

The legal issues before the court included whether the trial judge's consideration of the appellant's motive and the victim's injuries constituted a breach of the De Simoni principle. Another issue was whether quasi-custody was adequately considered as a sentencing option. The court also had to determine whether the sentence imposed was manifestly excessive, given the absence of submissions or sufficient evidence regarding quasi-custody. Furthermore, the court needed to assess whether the proposed additional ground of appeal, concerning fresh evidence, was valid.

The High Court found that the trial judge did not breach the De Simoni principle by considering the appellant's motive and the victim's injuries, as these factors were relevant to the overall criminality of the offence. The court also concluded that quasi-custody was not adequately considered because there were no submissions made on this matter, and insufficient evidence was adduced to warrant its consideration. However, the court determined that the sentence was not manifestly excessive, as the totality of the offences warranted a significant custodial sentence. The proposed additional ground of appeal was dismissed as it did not meet the necessary criteria.

Orders