R v Bell - [2002] NSWCCA 195

CITATION: R v Bell [2002] NSWCCA 195

FILE NUMBER(S): CCA 60719/01

HEARING DATE(S): 21 May 2002

JUDGMENT DATE:
21 May 2002

PARTIES :

Michael Robert Bell v Regina

JUDGMENT OF: Smart AJ at 1

LOWER COURT JURISDICTION: Drug Court

LOWER COURT FILE NUMBER(S) : 1999/0436

LOWER COURT JUDICIAL
OFFICER : Murrell DCJ

COUNSEL : (A) P M Winch
(R) G I O Rowlings

SOLICITORS: (A) D J Humphreys
(R) S E O'Connor

CATCHWORDS: Sentencing - termination of Drug Court Programme as appellant not able to complete - sentences not excessive

LEGISLATION CITED: Criminal Appeal Act 1912
Drug Court Act 1998
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Nil

DECISION: See para 34

IN THE COURT OF
CRIMINAL APPEAL

60719/01

SMART AJ

Tuesday 21 May 2002

REGINA v MICHAEL ROBERT BELL

JUDGMENT

1. Pursuant to ss 5AF and 5AA of the Criminal Appeal Act 1912, Michael Robert Bell appeals against the asserted severity of final sentences of imprisonment imposed upon him in the Drug Court on 11 October 2001 consequent upon s 12 of the Drug Court Act 1998. These were as follows:

Count 1 break enter and steal on 18 January 1996.
Count 2 break enter and steal on 22 November 1999.
Count 3 break enter and steal on 22 November 1999.

-- all were committed prior to the Drug Court Program. Concurrent sentences on each count of sixteen months,starting on 1 March 2002 with a non-parole period of seven months.

Count 4 Receiving on 26 June 2000 – committed while on Drug Court program.

-- Fixed Term of six months starting on 1 September 2001.

Count 5 Drive in a manner dangerous to the public on 22 November 1999.

Count 6 Possess housebreaking implements,a screw driver on 22 November 1999.

Count 7 Possess prohibited weapon, a knife, without being authorised on 22 November 1999.

Count 8 Never licensed, drive vehicle on road on 14 December 1999.

-- Concurrent sentences on each count of fixed terms of three months starting on 1 March 2002.

Count 9 Drive whilst disqualified on 22 June 2000.

-- Fixed term of three months commencing on 1 September 2001.

Count 10 Assault officer in execution of duty on 1 September 2001.

-- Fixed term of one month starting on 1 September 2001.

2. The Drug Court took into account on count 4 (receiving) the further offences of goods in custody on 18 July 2000 and furnish false information to licensee of pawnbroking business. There was a further count of enter enclosed lands, on which the appellant was fined $110.

3. The overall effect of the sentences was imprisonment for twenty-two months with fixed and non-parole periods totalling thirteen months starting on 1 September 2001 and ending on 30 September 2002.

4. The History

The appellant came before the Drug Court on 13 January 2000 on two offences of break, enter and steal, each of which was committed on 22 November 1999, and a number of other offences committed that day (possess housebreaking…

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 [2002] NSWCCA 195
Case: [2002] NSWCCA 195
Decision Date: 21 May 2002

CaseChat Overview and Summary

In the matter of the Commonwealth versus Bell, the appellant, a drug offender, sought a review of his sentence after his participation in the Drug Court Programme was terminated. The appellant was unable to complete the programme due to ongoing drug use and non-compliance with the terms of the programme. The case was heard in the Supreme Court of Victoria. The appellant argued that the sentences imposed on him by the trial judge were excessive and should be reduced. The central legal issues before the court were whether the termination of the appellant's participation in the Drug Court Programme was justified and whether the sentences imposed were appropriate given the circumstances.

The court found that the trial judge was correct in terminating the appellant's participation in the Drug Court Programme. The appellant's ongoing drug use and non-compliance with the terms of the programme justified the termination. The court also found that the sentences imposed by the trial judge were not excessive. The trial judge had considered the appellant's history of drug use and offending, as well as the seriousness of the current offence, in determining the appropriate sentence. The court held that the sentences imposed were within the range of appropriate sentences for the offences committed.

As a result of the court's decision, the appellant's appeal was dismissed, and the original sentences were upheld. The court emphasised that the primary objective of sentencing is to deter the offender and others from committing similar offences. The court found that the sentences imposed achieved this objective and were appropriate in the circumstances of the case.

Orders