R v Bell - [2005] NSWCCA 81

CITATION:
Regina v Bell [2005] NSWCCA 81

HEARING DATE(S): 7 March 2005

JUDGMENT DATE:

7 March 2005

JUDGMENT OF:
Spigelman CJ at 19; Grove J at 2; Bell J at 20

DECISION:
Appeal dismissed

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - SENTENCE - ATTEMPT TO STRANGLE WITH INTENT TO KILL - PLEA OF GUILTY - EVIDENCE OF INTENTION IN VOLUNTEERED ADMISSION BY OFFENDER - APPROPRIATE ALLOWANCES FOR MATTERS OF MITIGATION BY SENTENCING JUDGE -

LEGISLATION CITED:

s29 Crimes Act 1900

CASES CITED:
R. v Ellis 1986 6 NSWLR 603
Ryan v The Queen 2001 206 CLR 267

PARTIES:
Regina v Michael Joseph Bell

FILE NUMBER(S):
CCA 2004/2861

COUNSEL:
D. Frearson SC (Crown)
S. Kluss (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
James Fuggle & Associates (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/51/0163

LOWER COURT JUDICIAL OFFICER:
Ducker ADCJ

2004/2861

SPIGELMAN CJ
GROVE J
BELL J
7 March 2005

REGINA v MICHAEL JOSEPH BELL

Judgment

1 SPIGELMAN CJ: I will ask Grove J to give the first judgment.

2 GROVE J: The applicant seeks leave to appeal against severity of sentence imposed by Ducker ADCJ at Lismore District Court on 29 May 2003. On 26 May 2003 the applicant was to be presented for trial at that court on an indictment charging that he attempted to strangle Debera Bell with intent to murder her contrary to s 29 of the Crimes Act 1900 for which the prescribed maximum penalty is twenty five years imprisonment. On arraignment the applicant pleaded guilty and his Honour imposed a sentence of imprisonment of four years with a non parole period of two years and six months. The earliest date of eligibility of the applicant for release is 28 November 2005.

3 The facts of the offence were put before the Court in an agreed statement signed by the Crown Prosecutor. The content of that statement was:

“Michael Bell and Debera Bell were involved in a defacto relationship for about 13 years. As a result of the relationship, they have two children, Keira Bell (born 6/5/90) and Jacob Bell (born 10/7/92). Both parties still reside in the same house however they have been separated for about 18 months.

Since the breakdown of the relationship, there have been a number of ongoing problems between Michael Bell and Debera Bell. The problems have related to Debera Bell frequently being absent from home for Army Reserve training, family law issues and child support issues.

About 4.45pm on Tuesday 21 May 2002, Debera Bell rang Michael Bell at his work requesting he mind their children for the evening whist she attend Army Reserve training at Lismore. Debera Bell then arrived at Michael Bell’s work place at about 5.10pm where an argument took place over him still being at work. Debera Bell then conveyed Michael Bell home with a heated argument occurring along the way.

After arriving at home, Michael Bell drove the children to the Casino RSM (sic) Club, where he purchased a carton of VB full strength beer…

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 Bell

Details

AGLC: R v Bell [2005] NSWCCA 81
Case: [2005] NSWCCA 81
Decision Date: 7 March 2005

CaseChat Overview and Summary

In the Supreme Court, Bell pleaded guilty to an attempted murder charge. The incident involved Bell attempting to strangle a victim with intent to kill. The court was tasked with determining the appropriate sentence given the gravity of the offence and the plea of guilt. The legal issues included assessing the gravity of the attempted murder, the defendant's plea, and the need to consider mitigating factors presented by the defence. The court had to weigh the severity of the crime against the mitigating evidence provided.

The court considered the nature of the offence and the defendant's voluntary admission of intent. The seriousness of the attempted murder was underscored by the clear intent to kill, as evidenced by the defendant's actions. The court acknowledged the plea of guilty as a mitigating factor and carefully reviewed the mitigating evidence presented, including any personal circumstances that might warrant leniency. The court determined that while the offence was severe, the mitigating factors should be appropriately balanced against the gravity of the crime.

In reaching its decision, the court emphasised the need for a sentence that reflects both the heinous nature of the attempted murder and the defendant's plea of guilty. The court found that the mitigating factors, while relevant, did not sufficiently outweigh the severity of the crime. Consequently, the court imposed a sentence that was substantial but considered the totality of the circumstances, including the defendant's plea and the mitigating evidence. The final orders reflect the court's considered judgment on the appropriate punishment for the offence committed.

Orders