R v Argent

CITATION: REGINA v Bevan John ARGENT [2004] NSWCCA 270

HEARING DATE(S): 10/8/04

JUDGMENT DATE:
10 August 2004

JUDGMENT OF: James J at 1; Adams J at 42; Bell J at 2

DECISION: 1. Grant leave to appeal; 2. Allow the appeal and vary the sentences imposed in the District Court in the following respects; (i) Direct that the 12 months fixed term sentences imposed on counts 1, 2, 3 and 4 of the committal for sentence (the Group B offences) commence in each case on 26 October 2002 and expire on 25 October 2003; (ii) Confirm the sentences of four years and six months imposed in respect of counts 1, 2, 3, 4 and 5 in the indictment (the Group A offences) and direct that these sentences commence on 26 October 2003. Those sentences will expire on 25 October 2008. Vary the non-parole periods with respect to each of these sentences by the specification of a non-parole period of two years and six months. The non-parole period will commence in each case on 26 October 2003. The first date on which the application will be eligible for release on parole on 25 April 2006.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Summary Offences Act 1988

CASES CITED: R v Howard [2001] NSWCCA 309
R v LWP [2003] NSWCCA 215
R v Ponfield (1999) 48 NSWLR 327

PARTIES :
Bevan John ARGENT (Applicant)
REGINA

FILE NUMBER(S): CCA 60184/04

COUNSEL: H Dhanji (Applicant)
GIO Rowling (Crown)

SOLICITORS: S E O'Connor (Applicant)
S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0593

LOWER COURT
JUDICIAL OFFICER : Twigg DCJ

60184/04

JAMES J
ADAMS J
BELL J
Tuesday 10 August 2004

REGINA v Bevan John ARGENT

Judgment

1 JAMES J: I will call upon Bell J to give the first judgment.

2 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant by his Honour Judge Twigg (the Judge) on 12 September 2003. The applicant was sentenced on eight counts of breaking, entering and stealing and one count of breaking and entering with intent to steal. The Judge was asked to take three further offences into account pursuant to s 33 of the Criminal Procedure Act 1986. These comprised one charge of breaking, entering and stealing, one of possession of housebreaking implements and one of the possession of a pair of scissors (being an offence under the Summary Offences Act 1988).

3 The applicant pleaded guilty to each of the offences. They fell into two groups. The first group, Group A, were committed between 29 March and 18 April 2002. Each was an offence of breaking, entering and stealing contrary to s 112 of the Crimes Act 1900. The applicant was arrested in relation to these offences on 18 April 2002. He was remanded in custody until his release on bail on 20 May 2002.

4 On 24 May 2002, three days after…

CaseChat Overview and Summary

In this case, the applicant, Bevan John Argent, sought leave to appeal against the sentences imposed by the District Court. The applicant was sentenced for multiple counts of breaking, entering, and stealing, as well as breaking and entering with intent to steal. The Court of Criminal Appeal was required to determine whether the District Court had erred in its sentencing, specifically whether the court had failed to give the applicant credit for time spent in custody and whether it had properly taken into account the special circumstances of the case in setting the non-parole period. The applicant argued that the District Court had not correctly accounted for the 33 days he spent in custody prior to being released on bail and that the court had not adequately addressed his need for rehabilitation in setting the non-parole period. The Crown contended that any perceived errors were inconsequential due to the relatively lenient sentences imposed.

The Court found merit in the applicant's arguments. Firstly, the Court observed that the sentences did not reflect the 33 days the applicant spent in custody before being released on bail, which was a clear error. Secondly, while the District Court had found special circumstances justifying a departure from the statutory proportion between the sentence and the non-parole period, the structure of the sentences did not reflect this finding adequately. The non-parole period specified in the sentences for the Group A offences was excessive, considering the need for rehabilitation. The Court concluded that the sentences should be varied to ensure they appropriately reflect the applicant's pre-sentence custody and the need for rehabilitation, thereby allowing the appeal and varying the sentences as specified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	REGINA v Bevan John ARGENT [2004] NSWCCA 270
HEARING DATE(S):	10/8/04
JUDGMENT DATE:	10 August 2004
JUDGMENT OF:	James J at 1; Adams J at 42; Bell J at 2
DECISION:	1. Grant leave to appeal; 2. Allow the appeal and vary the sentences imposed in the District Court in the following respects; (i) Direct that the 12 months fixed term sentences imposed on counts 1, 2, 3 and 4 of the committal for sentence (the Group B offences) commence in each case on 26 October 2002 and expire on 25 October 2003; (ii) Confirm the sentences of four years and six months imposed in respect of counts 1, 2, 3, 4 and 5 in the indictment (the Group A offences) and direct that these sentences commence on 26 October 2003. Those sentences will expire on 25 October 2008. Vary the non-parole periods with respect to each of these sentences by the specification of a non-parole period of two years and six months. The non-parole period will commence in each case on 26 October 2003. The first date on which the application will be eligible for release on parole on 25 April 2006.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Summary Offences Act 1988
CASES CITED:	R v Howard [2001] NSWCCA 309 R v LWP [2003] NSWCCA 215 R v Ponfield (1999) 48 NSWLR 327
PARTIES :	Bevan John ARGENT (Applicant) REGINA
FILE NUMBER(S):	CCA 60184/04
COUNSEL:	H Dhanji (Applicant) GIO Rowling (Crown)
SOLICITORS:	S E O'Connor (Applicant) S Kavanagh

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0593
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ