R v Bellamy - [2005] NSWCCA 329

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Joseph Allen Bellamy [2005] NSWCCA 329

FILE NUMBER(S):
2005/1048

HEARING DATE(S): 14 September 2005

JUDGMENT DATE: 14/09/2005

PARTIES:
Regina
Joseph Allen Bellamy

JUDGMENT OF: Grove J Simpson J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1262

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

COUNSEL:
G Rowling (Crown)
H Dhanji (Applicant)

SOLICITORS:
S Kavanagh (Crown)
S O'Connor (Applicant)

CATCHWORDS:
Criminal law - appeal against sentence - aggravated break, enter and steal (x 2) - Form 1 matters - parity - prior criminal record as an aggravating factor

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

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1048
GROVE J
SIMPSON J
BUDDIN J
WEDNESDAY 14 SEPTEMBER 2005

R v JOSEPH ALLEN BELLAMY

BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court. The applicant initially pleaded guilty to two offences of aggravated break, enter and steal in the Local Court. He adhered to those pleas when he appeared for sentence.
In each instance the circumstance of aggravation was that the applicant committed the offence whilst “in company”. The first offence was committed on 19 June 2000 and the second on 4 March 2004. A standard non-parole period of five years applied in relation to the latter offence. The applicant requested that seven further offences, which appeared on a Form 1 document, be taken into account in relation to the second offence. Each offence attracts a maximum penalty of 20 years imprisonment.
In respect of the first offence the applicant was sentenced to a non-parole period of 2 years to commence on 16 March 2004, with the total term of imprisonment being 2 years 8 months. In respect of the second offence the applicant was sentenced to a non-parole period of 2 years and 9 months to commence on 16 June 2004, with the total term of imprisonment being 3 years and 8 months. The total effective non-parole period is thus one of 3 years whilst the effective total term is 3 years and 11 months imprisonment.
So far as the first offence is concerned, the applicant was one of three offenders who broke into the Gianni Versace store, in Castlereagh Street in the city, at 7 pm on 19 June 2000. They forced entry to the premises through the fire doors by using a jemmy. One of the men, David Lea, stood guard whilst the other two, one of whom was the applicant, kicked in two internal doors and then begun rifling through filing cabinets. The trio left the premises with a large quantity of clothing. As they left the premises, Mr Lea was tackled by a member of the public. He was subsequently arrested at the scene. The other two men dropped the property which they were carrying and escaped. All the property, the wholesale value of which was in excess…

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 Bellamy

Details

AGLC: R v Bellamy [2005] NSWCCA 329
Case: [2005] NSWCCA 329
Decision Date: 14 September 2005

CaseChat Overview and Summary

The appeal in R v Bellamy involved the appellant, who had been convicted of two counts of aggravated break, enter and steal. The appellant sought to appeal against the severity of the sentence imposed by the trial judge. The matter was heard in the Court of Appeal. The primary issue before the court was whether the trial judge erred in considering the appellant's prior criminal record as an aggravating factor, and if so, whether such error was material to the sentence imposed.

The court examined the principles governing the consideration of prior criminal history in sentencing. It was noted that while a defendant's prior criminal record could be considered, it must not unduly influence the sentence to the extent that it results in a manifestly excessive penalty. The court held that the trial judge had appropriately weighed the appellant's criminal history but had also balanced it against other factors, including the nature of the offences and the need for general deterrence. The court found no material error in the trial judge's approach, affirming that the sentence was not manifestly excessive.

In reaching its decision, the court also considered the principle of parity, ensuring that the sentence reflected the seriousness of the offences and was commensurate with sentences imposed in similar cases. The appeal was ultimately dismissed, and the original sentence was upheld. The court confirmed that the trial judge had exercised sound judicial discretion in imposing the sentence.

Orders