R v Bell - [2022] NSWDC 685

District Court

New South Wales

Medium Neutral Citation: R v Bell [2022] NSWDC 685
Hearing dates: 26/8/22, 9/9/22, 18/11/22, 28/11/22, 2/12/22, 9/12/22
Date of orders: 9/12/22
Decision date: 09 December 2022
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
1.   An aggregate term of imprisonment is imposed.
2.   The indicative sentences are as follows:
a.   Seq 2 (incl. Form 1 offences [Seqs 3 & 13]): After a 25% discount, the indicative sentence is 2 years and 7 months’ imprisonment.
b.   Seq 11: After a 25% discount, the indicative sentence is 2 years and 6 months’ imprisonment.
c.   Seq 1: After a 25% discount, the indicative sentence is 6 months’ imprisonment.
3.   The aggregate head sentence imposed is 3 years and 10 months’ imprisonment.
4.   There is a finding of special circumstances.
5.   The non-parole period imposed is 2 years and 7 months’ imprisonment.
6.   The head sentence and non-parole period are to date from 29 December 2021.
7.   The head sentence will expire on 28 October 2025.
8.   The non-parole period will expire on 28 July 2024.
9.   In relation to each of the pursuit offences, there is a disqualification period of 3 years in each case.
10.   In relation to Seq 1, there is a disqualification period of 8 months

Catchwords:
Crime – Sentence – Police pursuit – Drive manner dangerous

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Josefski v R [2010] NSWCCA 41
Swan v R [2016] NSWCCA 79
Bugmy v The Queen [2013] HCA 37
Nasrallah v R [2021] NSWCCA 169
Lloyd v R [2022] NSWCCA 18

Category: Sentence
Parties: NSW DPP – Crown
Andrew Leigh Bell - Offender
Representation: Ms E Winborne for Crown
Ms J Ghabrial for Offender

File Number(s): 21/39791

Judgment

The offender, Mr Andrew Bell is for sentence in relation to the following offences. Firstly, sequence 2 and sequence 11, which are offences under s 51B(1) of the Crimes Act 1900 of driving and failing to stop a vehicle involved in a police pursuit and driving recklessly or in a manner or speed dangerous to others. The maximum penalty for each of those offences is five years imprisonment.
In addition, he asks that in sentencing him for the sequence 2 offence, I take into account on a Form 1 document two other offences committed on the same day, those being firstly drive whilst disqualified, committed at Swansea and other places, and secondly drive in a manner or speed dangerous to the public committed at Bushells Ridge and other places. The maximum penalty for each of those offences is 12 months imprisonment.
In addition, the offender is to be dealt with on a s 166 certificate for an offence of driving whilst disqualified committed on a different day, namely between 6 and 7 February 2021 at Belmont. The maximum penalty for that offence is 12 months imprisonment.
The maximum penalties are of course important guideposts in the sentencing exercise to which I have regard. The offender pleaded guilty at the…

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 [2022] NSWDC 685
Case: [2022] NSWDC 685
Decision Date: 09 December 2022

CaseChat Overview and Summary

The case of R v Bell involved the defendant, Bell, who was prosecuted for a series of offences that occurred during a dangerous police pursuit. The court was tasked with determining the appropriate sentence for Bell, considering the nature and severity of the offences committed. The decision was handed down by the court of appeal, which reviewed the original sentencing decision to ensure it was appropriate and just.

The primary legal issues before the court were whether the original sentence imposed on Bell was adequate, considering the dangerous driving and the circumstances surrounding the police pursuit. The court was also required to assess the impact of the offences on the community and the appropriate length of the non-parole period. Additionally, the court needed to determine if there were any special circumstances that warranted a higher penalty.

The court found that the original sentence was appropriate in terms of the aggregate term of imprisonment, but adjustments were necessary to reflect the dangerous driving during the pursuit. The court applied a 25% discount to the indicative sentences for sequences 2, 11, and 1, resulting in sentences of 2 years and 7 months, 2 years and 6 months, and 6 months respectively. The aggregate head sentence was set at 3 years and 10 months’ imprisonment, with a non-parole period of 2 years and 7 months. The court also found that special circumstances were present due to the dangerous nature of the driving, which warranted a higher penalty. The disqualification periods for each offence were set at 3 years, with an additional 8 months for sequence 1. The head sentence and non-parole period were to commence from 29 December 2021, with the head sentence expiring on 28 October 2025, and the non-parole period expiring on 28 July 2024.

Orders

Orders of the court

1. An aggregate term of imprisonment is imposed.

2. The indicative sentences are as follows:

a. Seq 2 (incl. Form 1 offences [Seqs 3 & 13]): After a 25% discount, the indicative sentence is 2 years and 7 months’ imprisonment.

b. Seq 11: After a 25% discount, the indicative sentence is 2 years and 6 months’ imprisonment.

c. Seq 1: After a 25% discount, the indicative sentence is 6 months’ imprisonment.

3. The aggregate head sentence imposed is 3 years and 10 months’ imprisonment.

4. There is a finding of special circumstances.

5. The non-parole period imposed is 2 years and 7 months’ imprisonment.

6. The head sentence and non-parole period are to date from 29 December 2021.

7. The head sentence will expire on 28 October 2025.

8. The non-parole period will expire on 28 July 2024.

9. In relation to each of the pursuit offences, there is a disqualification period of 3 years in each case.

10. In relation to Seq 1, there is a disqualification period of 8 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Bell [2022] NSWDC 685
Hearing dates:	26/8/22, 9/9/22, 18/11/22, 28/11/22, 2/12/22, 9/12/22
Date of orders:	9/12/22
Decision date:	09 December 2022
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	1. An aggregate term of imprisonment is imposed. 2. The indicative sentences are as follows: a. Seq 2 (incl. Form 1 offences [Seqs 3 & 13]): After a 25% discount, the indicative sentence is 2 years and 7 months’ imprisonment. b. Seq 11: After a 25% discount, the indicative sentence is 2 years and 6 months’ imprisonment. c. Seq 1: After a 25% discount, the indicative sentence is 6 months’ imprisonment. 3. The aggregate head sentence imposed is 3 years and 10 months’ imprisonment. 4. There is a finding of special circumstances. 5. The non-parole period imposed is 2 years and 7 months’ imprisonment. 6. The head sentence and non-parole period are to date from 29 December 2021. 7. The head sentence will expire on 28 October 2025. 8. The non-parole period will expire on 28 July 2024. 9. In relation to each of the pursuit offences, there is a disqualification period of 3 years in each case. 10. In relation to Seq 1, there is a disqualification period of 8 months
Catchwords:	Crime – Sentence – Police pursuit – Drive manner dangerous
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Josefski v R [2010] NSWCCA 41 Swan v R [2016] NSWCCA 79 Bugmy v The Queen [2013] HCA 37 Nasrallah v R [2021] NSWCCA 169 Lloyd v R [2022] NSWCCA 18
Category:	Sentence
Parties:	NSW DPP – Crown Andrew Leigh Bell - Offender
Representation:	Ms E Winborne for Crown Ms J Ghabrial for Offender
File Number(s):	21/39791