Bott v R - [2012] NSWCCA 191

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bott v R [2012] NSWCCA 191
Hearing dates: 27 August 2012
Decision date: 31 August 2012
Before: Macfarlan JA
Price J
McCallum J
Decision:
1. The extension of time to seek leave to appeal is granted. 2. Leave to appeal granted. 3. Appeal dismissed.

Catchwords: Criminal Law - appeal against sentence - kidnapping - standover merchant - whether judge took irrelevant matters into account - whether judge sentenced for aggravated offence - whether error in assessment of prospects of rehabilitation - whether sentence manifestly excessive.
Legislation Cited: Crimes Act 1900 s 86(1)(b), s 86(2)
Crimes (Domestic and Personal Violence) Act 2007 s 13(1)
Crimes (Sentencing Procedure) Act 1999
s 12, s 68, s 69
Cases Cited: Allen v R [2010] NSWCCA 47
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Category: Principal judgment
Parties:
Representation: Mr R Herps (Crown)
Mr M Gleeson (applicant)
Mr S. Kavanagh (Director of Public Prosecutions)
Boss Cher Lawyers (applicant)

File Number(s): 2009/230155
Decision under appeal

Citation:

R v Bott

Before:

Finnane QC DCJ

File Number(s):

2009/230155

Judgment

MACFARLAN JA: I agree with Price J.

PRICE J: The applicant seeks leave to appeal against the sentence imposed upon him by Finnane DCJ (the judge) in the District Court at Sydney on 28 October 2011. He had pleaded guilty to a charge of kidnapping, pursuant to s 86(1)(b) Crimes Act 1900 which carries a maximum penalty of 14 years imprisonment. An offence of intimidation pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 had been included on a Form 1 and was taken into account by the judge on sentence. This offence is punishable by imprisonment for 5 years or 50 penalty units, or both.

The applicant was sentenced to a non-parole period of 12 months, commencing on 27 October 2011 and expiring on 26 October 2012 with a balance of term of 18 months expiring on 26 April 2014. The judge directed that the applicant be released to parole on the expiration of the non-parole period.

The judge had discounted the sentence by twenty five per cent for the utilitarian value of the plea of guilty.

The notice of appeal identifies three grounds:

1.The sentence imposed in all the circumstances was manifestly excessive.

2.The Learned judge erred in considering matters, which were improperly taken into account on passing sentence.

3.The Learned judge erred in his assessment of the applicant's prospects of rehabilitation.

The applicant requires an extension of time in which to make an application for leave to appeal. After an adequate explanation was provided by the applicant for the delay, the Crown withdrew its opposition to an extension of time being granted.

Facts

The circumstances of the applicant's offending were the subject of a five page statement of facts.

When the plea of guilty was entered before Knox DCJ on 3 May 2011, the statement of facts…

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 Bott v R

Details

AGLC: Bott v The Queen [2012] NSWCCA 191
Case: [2012] NSWCCA 191
Decision Date: 31 August 2012

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Bott v R concerns an appeal against a sentence imposed following a conviction for kidnapping. The appellant, Bott, had been found guilty of engaging in a standover activity and subsequently kidnapping a person. The appeal focuses on the severity of the sentence and whether the judge erred in various aspects of the sentencing process.

The court was required to determine whether the judge had taken into account irrelevant matters when sentencing Bott. It was also necessary to assess whether the sentence was imposed for an aggravated offence, whether there was an error in the assessment of Bott's prospects of rehabilitation, and whether the sentence was manifestly excessive. These issues revolve around the principles of sentencing, the role of the judge in considering relevant and irrelevant matters, and the proportionality of the sentence in relation to the offence.

The court held that the sentence was not manifestly excessive and that the judge did not err in considering the relevant matters. The sentence was considered proportionate to the gravity of the offence, taking into account Bott's criminal history and the nature of the kidnapping incident. The court also determined that the prospects of rehabilitation assessment were not flawed and that the sentence was not imposed for an aggravated offence. Therefore, the appeal was dismissed, and the original sentence was upheld.

Bott's appeal against his sentence was dismissed. The court found that the sentence was proportionate to the offence, and that the judge had appropriately considered the relevant sentencing factors. The assessment of Bott's prospects of rehabilitation was deemed accurate, and the sentence was not imposed for an aggravated offence. The original sentence was therefore upheld.

Orders