R v Bell - [2003] NSWCCA 305

CITATION: R v BELL [2003] NSWCCA 305

HEARING DATE(S): 14 October 2003

JUDGMENT DATE:
24 October 2003

JUDGMENT OF: Sheller JA at 1; Sully J at 15; Howie J at 16

DECISION: Grant the application for leave to appeal.; Dismiss the appeal

CATCHWORDS: CRIMINAL LAW - application for leave to appeal - severity of sentence - assault on police officer - whether accumulation of sentences amounts to a special circumstance in fixing the non-parole period

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Lyndon [2003] NSWCCA 152

PARTIES :
Stephen Charles Bell - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 60214/03

COUNSEL: A Francis - Applicant
D Arnott - Crown

SOLICITORS: Steve O'Connor - Legal Aid Commission
C K Smith - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0129

LOWER COURT
JUDICIAL OFFICER : Gibson DCJ

60214/03

SHELLER JA
SULLY J
HOWIE J
Friday, 24 October 2003

R v Stephen Charles BELL

Judgment

1 SHELLER JA: The applicant, Stephen Charles Bell, pleaded guilty to three counts of assaulting a police officer acting in the execution of his duty but without occasioning actual bodily harm; s60(1) of the Crimes Act 1900. On 16 December 2002 his Honour Judge Gibson sentenced the applicant on the third count to imprisonment for two years commencing on 10 October 2002 with a non-parole period of eighteen months to commence on the same date. On each of the first two counts his Honour sentenced the applicant to imprisonment for a fixed term of twelve months to commence on 10 October 2002. The applicant seeks leave to appeal against severity.

2 The offences charged occurred on 2 March 2002. At about 11.40 pm on that date police observed the applicant’s motor vehicle being driven at high speed. Pursuit resulted in the vehicle colliding with the kerb at which point a passenger fled and the applicant who had been observed in the driver’s seat tried to get out of the front passenger’s seat. Police ran to the vehicle and told the applicant, who was familiar to them as a disqualified driver, that he was under arrest. The applicant refused to get out of the vehicle and became aggressive. During a struggle one of the police officers drew his extendable baton and the applicant punched him on the left arm and chest (count 1). The officer struck the applicant on his left arm with the baton and attempted to restrain him again. Police attempted to handcuff him but the applicant continued to struggle and was pushed to the ground. The applicant kicked out at the same police officer striking him in the left leg several times (count 2). The applicant, who was then lying on his back, yelled out to the officer “I have hepatitis and I’m going to spit in your face so that you get it too and have a life of misery” (count 3).

3 In his remarks on sentence, Judge Gibson said that the applicant, who was drunk, behaved in an appalling…

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 [2003] NSWCCA 305
Case: [2003] NSWCCA 305
Decision Date: 24 October 2003

CaseChat Overview and Summary

The case involved the defendant, Bell, who was convicted of assaulting a police officer. Bell appealed against the severity of his sentence, arguing that the accumulation of sentences amounted to a special circumstance that should have been considered when determining the non-parole period. The appeal was heard by the court of appeal. The primary legal issue before the court was whether the accumulation of sentences could be considered a special circumstance in fixing the non-parole period. The court considered the principles of sentencing and the appropriate weight to be given to the cumulative effect of prior convictions when determining the appropriate non-parole period for a sentence. The court found that the accumulation of sentences did not constitute a special circumstance that warranted a departure from the usual sentencing principles. The court held that while the cumulative effect of prior convictions should be considered, it did not automatically elevate the offence to a special circumstance. The court emphasised that the severity of the current offence and the need for deterrence and protection of the community were the primary considerations in determining the non-parole period. The appeal was dismissed, and the original sentence was upheld.

The court concluded that the trial judge had appropriately considered the cumulative effect of prior convictions in sentencing Bell but had not erred in failing to characterise this as a special circumstance. The court reaffirmed the importance of maintaining consistency in sentencing and ensuring that the punishment fits the crime. The cumulative effect of prior convictions could be a relevant factor in determining the appropriate length of the sentence, but it did not automatically create a special circumstance that would warrant a departure from the usual sentencing principles. The court's decision underscores the need for a balanced approach to sentencing that considers both the gravity of the current offence and the offender's criminal history, without automatically elevating the latter to a special circumstance.

Orders