R v Bell - [1999] NSWCCA 423

CITATION: REGINA v BELL [1999] NSWCCA 423

FILE NUMBER(S): CCA 60423/98

HEARING DATE(S): 27 October 1999

JUDGMENT DATE:
27 October 1999

PARTIES :

REGINA v TREVOR DEAN BELL JUNIOR

JUDGMENT OF: Simpson J at 1; Smart AJ at 25

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/1127

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL: R D Ellis - Crown
P J D Hamill - Applicant

SOLICITORS: S E O'Connor - Crown
T A Murphy - Applicant

CATCHWORDS:

ACTS CITED: Crimes Act 1900
Sentencing Act 1989

CASES CITED:
R v Fernando [1992] 76 A Crim R 58

DECISION: Leave to appeal granted; Appeal allowed and sentence varied.; The applicant be sentenced to a total term of penal servitude for five years made up of a minimum term of two and a half years commencing on 21 February 1998 and expiring on 20 August 2000 and an additional term of two and a half years commencing on 21 August 2000 and expiring on 20 February 2003.

IN THE COURT OF
CRIMINAL APPEAL

60423/98

SIMPSON J
SMART AJ

27 October 1999

REGINA v TREVOR DEAN BELL JUNIOR

JUDGMENT

SIMPSON J :

1 The applicant seeks leave to appeal a sentence imposed on him in the District Court by Nield DCJ following his plea of guilty to a single charge of aggravated break enter and steal. The charge was brought under section 112(2) of the Crimes Act 1900 and carries a maximum penalty of twenty years penal servitude. The sentence imposed by his Honour was one of a total term of penal servitude for six years. His Honour declined to find special circumstances within the meaning of section 5(3) of the Sentencing Act 1989 existed and divided the term conventionally into a minimum term of four-and-a-half years and an additional term of one-and-a-half years.
2 The offence was committed on 21 February 1998. The applicant smashed the bedroom window of a house and with his defacto wife entered the house and proceeded to collect a large amount of property. In smashing the window the applicant injured his hand and while the two were in the house he shed a good deal of blood throughout the house and on the property of the occupants. Having been notified of the entry, police arrived and encountered the two offenders in the premises. As a result no property was in fact removed from the premises but a great deal was damaged as a result of the blood shed by the applicant. The female occupant of the premises estimated the damaged property to be valued at about $3,000. The applicant and his defacto were arrested immediately. He declined to be interviewed by police. However, he subsequently entered a plea of guilty and the sentencing judge accepted that this was entered at the first available opportunity.
3 The applicant was born either on 31 August 1964 or 31 August 1965. The material is conflicting in this respect. He has an extremely lengthy criminal history. Judge Nield tallied…

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 [1999] NSWCCA 423
Case: [1999] NSWCCA 423
Decision Date: 27 October 1999

CaseChat Overview and Summary

In the case of Regina v Bell, the applicant, Trevor Dean Bell Junior, sought leave to appeal against the sentence imposed on him by the District Court. Bell was found guilty of aggravated break enter and steal under section 112(2) of the Crimes Act 1900, which carries a maximum penalty of twenty years of penal servitude. The District Court sentenced Bell to a total term of penal servitude for six years, divided into a minimum term of four-and-a-half years and an additional term of one-and-a-half years, without finding special circumstances as defined by section 5(3) of the Sentencing Act 1989. The applicant argued three main issues on appeal: the disparity in sentencing compared to his co-offender, the lack of consideration of his early life and drug addiction, and the refusal to find special circumstances.

The Court of Criminal Appeal found that the sentencing judge did not adequately consider the disparity in sentencing between Bell and his co-offender, Ms Knock. Although the sentencing judge acknowledged the differences between the two offenders, the Court found that the disparity in the minimum terms of their sentences was too significant and likely unjust. The Court also noted that the sentencing judge did not sufficiently consider Bell's early life experiences and drug addiction, which could have contributed to his criminal behaviour. Furthermore, the Court found that the sentencing judge erred in not finding special circumstances in Bell's case, as his background and circumstances warranted such a finding, and it would have allowed for a more appropriate sentence.

Based on these findings, the Court of Criminal Appeal granted leave to appeal and allowed the appeal, varying the sentence imposed on Bell. The Court sentenced Bell to a total term of penal servitude for five years, made up of a minimum term of two-and-a-half years commencing on 21 February 1998 and expiring on 20 August 2000, and an additional term of two-and-a-half years commencing on 21 August 2000 and expiring on 20 February 2003. This new sentence better reflected the appropriate considerations in sentencing Bell, taking into account his background, early life experiences, and drug addiction.

Orders