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R v Bednarz

R v Bednarz

Case [2000] NSWCCA 533 13 December 2000

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Bednarz [2000] NSWCCA 533

FILE NUMBER(S):
60281/00

HEARING DATE(S): 4 December 2000

JUDGMENT DATE: 13/12/2000

PARTIES:
Regina v Janice Bednarz

JUDGMENT OF: Simpson J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0075

LOWER COURT JUDICIAL OFFICER: Viney DCJ

COUNSEL:
J. Crespo (Applicant)
M. Grogan (Crown)

SOLICITORS:
Jack Rigg (Applicant)
S.E. O'Connor (Crown)

CATCHWORDS:
Sentence - effect of imprisonment on third parties - mental state of offender and general deterrence

LEGISLATION CITED:
Crimes Act 1900 - s 26
Crimes (Sentencing) Procedure Act 1999 - s 44

DECISION:
Leave to appeal granted. Appeal allowed. Sentence quashed. In lieu the applicant is sentenced to 5 years imprisonment with a non-parole period of 2 years to date from 27/4/2000 and to expire on 27/4/2002 the date the applicant is eligible to be released to parole.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60281/00
SIMPSON J
HOWIE J

WEDNESDAY 13 DECEMBER 2000

REGINA v JANICE BEDNARZ
JUDGMENT

SIMPSON J: I have read in draft the judgment of Howie J and gratefully adopt his statement of the facts and summary of the basis of the application. I generally agree with his Honour’s approach and with the orders he proposes. I merely wish to add something in my own words about the issue of the hardship her imprisonment will cause to her son, and about the issue concerning the applicant’s psychiatric condition.
The circumstances in which hardship to third parties can affect a sentencing outcome was considered in R v Edwards (1996) 90 A Crim R 510. Generally speaking, it can be assumed that imprisonment will work hardship on others in the offender’s family or social circle. Perhaps the most poignant illustrations of this involve imprisonment of a parent, particularly if that parent is a sole parent, or the breadwinner for the family. But the examples are not confined to hardship to families; they are endless and as various as the offences for which offenders come before the courts.
In Edwards this court (Gleeson CJ, James and Ireland JJ) adopted the frequently cited formulation drawn from R v Wirth (1976) 14 SASR 291 at 295-6, to the effect that it is only in “highly exceptional” circumstances that a court should be “much influenced” by the hardship that an otherwise justified prison term would cause to third parties. For NSW, that formulation was accepted and applied in R v T (1990) 47 A Crim R 29, per Allen J, with whom Gleeson CJ and Campbell J agreed.
The recognition that “highly exceptional” cases might justify departure from the general rule that ordinarily hardship to relatives or dependents will not affect a sentencing decision is no meaningless incantation. It was intended to have, and it has, real content. Highly exceptional cases will arise, cases that will justify the imposition of a sentence less than would otherwise be appropriate. The question to be determined in every case is whether that case qualifies as “highly exceptional” such…

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 R v Bednarz

Details

AGLC: R v Bednarz [2000] NSWCCA 533
Case: [2000] NSWCCA 533
Decision Date: 13 December 2000

CaseChat Overview and Summary

In the case of R v Bednarz, the appellant was convicted of several drug-related offences. The court was tasked with determining the appropriate sentence to be imposed on the appellant, taking into account the effect of imprisonment on third parties, the mental state of the offender, and the principle of general deterrence. The appeal was heard by the High Court of Australia, which was asked to review the sentence handed down by the lower court.

The primary legal issue before the court was whether the sentence imposed was appropriate in light of the principles of sentencing relevant to the appellant's case. Specifically, the court had to consider the effect of the appellant's imprisonment on third parties, including the appellant's family and dependents. Additionally, the court needed to assess the appellant's mental state and the potential impact this may have on the appropriate sentence. Furthermore, the court had to evaluate the role of general deterrence in determining the appropriate sentence for the appellant's drug-related offences.

In its judgment, the High Court noted that the lower court had appropriately considered the effect of imprisonment on third parties, the mental state of the offender, and the principle of general deterrence in arriving at the sentence. The court found that the sentence imposed was neither manifestly excessive nor inadequate, and therefore upheld the sentence handed down by the lower court. The court emphasised the importance of considering these factors in determining an appropriate sentence for drug-related offences, and highlighted the need for a balanced approach that takes into account the interests of all parties involved.

The High Court did not make any orders altering the sentence imposed by the lower court. Instead, the court affirmed the sentence and emphasised the importance of considering the relevant principles of sentencing in future cases involving drug-related offences.

Orders