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Bonwick v R

Bonwick v R

Case [2010] NSWCCA 177 2 September 2010

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New South Wales
Court of Criminal Appeal

CITATION: Bonwick v R [2010] NSWCCA 177
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 August 2010

JUDGMENT DATE:
2 September 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Davies J at 3

DECISION: (1) Leave to appeal granted. (2) Appeal allowed. (3) Quash the sentences imposed in the District Court. (4) Sentence the Appellant as follows - Count 2: Appellant to enter a bond to be of good behaviour for 12 months commencing 3 November 2009 - Count 3: Appellant is sentenced to a fixed term of imprisonment for 3 months commencing on 3 November 2009 and expiring on 2 February 2010. Count 4: Appellant is sentenced to a non-parole period of 9 months to commence on 3 November 2009 and to expire on 2 August 2010 with an additional term of 9 months to commence on 3 August 2010 and to expire on 2 May 2011 - Count 5: Appellant is sentenced to a non-parole period of 12 months to commence on 3 November 2009 and to expire on 2 November 2010 with an additional term of 12 months to commence on 3 November 2010 and to expire on 2 November 2011.

CATCHWORDS: CRIMINAL LAW - sentence - appeal against severity - indecent assault of a child under 16 years - first such offences - offender assessed as borderline mildly retarded - offences could have been dealt with in the Local Court - no regard paid to that principle - whether standard non-parole period displaced consideration of that principle - failure to consider offences separately - sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: Ciaron McCullough v R [2009] NSWCCA 94
Collins, Marcus Shane v R [2010] NSWCCA 13
Corby v R [2010] NSWCCA 146
Frigiani v R [2007] NSWCCA 81
HMP v R [2010] NSWCCA 63
MLP v Regina [2006] NSWCCA 271
Pearce v The Queen (1998) 194 CLR 610
R v Crombie [1999] NSWCCA 297
R v Hanslow [2004] NSWCCA 163
R v Way (2004) 60 NSWLR 168
Regina v AJP (2004) 150 A Crim R 575
Regina v Palmer [2005] NSWCCA 349
Regina v Said El Masri [2005] NSWCCA 167
Walton v R [2009] NSWCCA 243

PARTIES: Craig Thomas Bonwick (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/9177

COUNSEL: R Burgess (Appellant)
V Lydiard (Respondent)

SOLICITORS: Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/9177

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 14 December 2009

- 18 -

2009/9177

MCCLELLAN CJ AT CL, JAMES & DAVIES JJ

2 SEPTEMBER 2010

BONWICK V R

Judgment

1 McCLELLAN CJ at CL: I agree with Davies J.

2 JAMES J: I agree with Davies J.

: On 21 July 2009 the Applicant was indicted on the following offences:

1. That Craig…

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 Bonwick v R

Details

AGLC: Bonwick v R [2010] NSWCCA 177
Case: [2010] NSWCCA 177
Decision Date: 1/1/2010

CaseChat Overview and Summary

In the case before the court, Bonwick was the appellant and the Crown was the respondent. The matter involved an appeal against the severity of the sentence imposed on Bonwick for indecent assault of a child under 16 years of age, where these were the first such offences committed by the appellant. Bonwick was assessed as borderline mildly retarded. The issue was whether the Local Court principle, which generally allows for such offences to be dealt with in the Local Court, was overlooked in sentencing. The court also had to consider whether the standard non-parole period should override this principle and whether the court had failed to consider the offences separately, leading to a sentence deemed manifestly excessive.

The primary legal issue before the court was whether the trial judge's failure to take into account the principle that offences of this nature could have been dealt with in the Local Court, and the appellant's intellectual assessment, led to an inappropriate sentence. The court examined if the standard non-parole period could preclude the application of this principle and if the offences should have been assessed individually. The appellant argued that the sentence was manifestly excessive given the circumstances, including the nature of the offences and the offender's background.

The court found that the trial judge did not properly consider the principle that the offences could have been dealt with in the Local Court, nor did they appropriately weigh the appellant's intellectual assessment. The standard non-parole period did not override the need to consider the Local Court principle, and the court should have evaluated the offences separately. The cumulative effect of these errors resulted in a sentence that was manifestly excessive. The court concluded that the sentence imposed was disproportionate to the nature and circumstances of the offences and the offender, leading to a decision to allow the appeal and reduce the sentence.

The final orders of the court involved reducing the sentence imposed on Bonwick, reflecting the appropriate consideration of the principles and factors that should have been applied during the original sentencing process. The court's decision emphasised the need for a more balanced approach that appropriately weighed the mitigating factors and the nature of the offences.

Orders