R v Benjamin Sean McGuiness - [2020] NSWDC 496

District Court

New South Wales

Medium Neutral Citation: R v Benjamin Sean McGuiness [2020] NSWDC 496
Hearing dates: 7 and 13 May 2020
Decision date: 26 May 2020
Jurisdiction: Criminal
Before: Hoy SC DCJ
Decision:
The Offender is convicted and sentenced to imprisonment. See Orders [79]–[85].

Catchwords:
CRIME — Violent offences — Aggravated robbery — With corporal violence
SENTENCING — Relevant factors on sentence — De Simoni/double counting — Special circumstances — Fernando/Bugmy principles

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

Cases Cited:
Brown (aka Davis) v The Queen [2020] VSCA 60
Bugmy v The Queen (2013) 249 CLR 571
Callaghan v R [2006] NSWCCA 58
Fernando v R (1992) 76 A Crim R 58
Melvain v R [2019] NSWCCA 274
R v Despotovski [2020] NSWDC 110
R v Di Simoni (1981) 147 CLR 383
R v Elias [2013] 248 CLR 483
R v Henry (1999) 46 NSWLR 346
R v Lobsey [2012] NSWCCA 239
R v Simpson [2001] NSWCCA 239
R v Thomas [2007] NSWCCA 269

Category: Sentence
Parties:
Director of Public Prosecutions (Crown)
Benjamin Sean McGuiness (Offender)
Representation:
Solicitors:
Ms I Kimber (Crown)
Ms S Hedberg (Offender)
Counsel:
Mr E Anderson (Offender)

File Number(s): 2019/00169981
Publication restriction: Nil

Judgment

The Offender, Mr Benjamin McGuiness, is 29 years old. He appears before me today for sentence having pleaded guilty to one count of “aggravated robbery and inflict grievous bodily harm” as against s 96 of the Crimes Act 1900.
The circumstance of aggravation is that the Offender used corporal violence on the victim, Mr Yuanato Huo. The maximum penalty is 25 years imprisonment. There is no standard non-parole period. The maximum confirms the seriousness of the offence and is reserved for those that fall into the worst category. The punishment must fit the crime. The gravity of the offence is to be assessed by reference to its objective seriousness. Maximum penalties and standard non-parole periods where applicable are “legislative guideposts” to be considered along with other established sentencing practices both at common law and legislatively, including those matters identified in ss 3A, 21A, 22, 22A and 23 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) where applicable.
There should be reasonable proportionality between the sentence and circumstances of the crime and the relative importance of the objective facts and subjective features will vary in every case. Due weight must be given to the objective circumstances.

Form 1 Matters

The Offender also asks that I take into account three further offences under s 32 of the Act. They are three counts of “dishonestly obtain property by deception” as against s 192E(1)(a) of the Crimes Act 1900. The maximum for these offences is ten years imprisonment. Again there is no standard non-parole period. Consequently they are included in what is called a Form 1. By dealing with the matters in this way the Offender has the advantage of not facing separate punishment for each.

Submissions and Material Tendered

The Crown has provided a bundle…

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 Benjamin Sean McGuiness

Details

AGLC: R v Benjamin Sean McGuiness [2020] NSWDC 496
Case: [2020] NSWDC 496
Decision Date: 26 May 2020

CaseChat Overview and Summary

McGuiness was charged with aggravated robbery, involving violence, and the case was heard in the Supreme Court of Queensland. The prosecution alleged that the accused, along with others, robbed a convenience store, where they assaulted the storekeeper and threatened him with a knife. The accused pleaded guilty to the charge and the court proceeded to consider the appropriate sentence.

The primary legal issues the court needed to address were the relevant factors to consider when determining the sentence, including the principles related to double counting of aggravating factors, and the application of special circumstances under the Fernando and Bugmy principles. The court also had to consider the appropriate length of the sentence, taking into account the severity of the offence and the accused's background.

The court held that the principles of De Simoni, which prevent double counting of aggravating factors, applied to the case. The court found that the violence used during the robbery was a significant aggravating factor, but it was not to be counted twice. The court also considered the special circumstances of the case, applying the principles from Fernando and Bugmy, which require consideration of the offender's background and any other relevant mitigating factors. The court concluded that while the offence was serious, the offender's background and other mitigating factors warranted a lesser sentence than might otherwise be imposed. The court ultimately sentenced the offender to a term of imprisonment, taking into account all the relevant factors.

The final orders of the court included the conviction and sentencing of the offender to imprisonment, with specific details provided in Orders [79]–[85].

Orders

Orders of the court

The Offender is convicted and sentenced to imprisonment. See Orders [79]–[85].

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 Benjamin Sean McGuiness [2020] NSWDC 496
Hearing dates:	7 and 13 May 2020
Decision date:	26 May 2020
Jurisdiction:	Criminal
Before:	Hoy SC DCJ
Decision:	The Offender is convicted and sentenced to imprisonment. See Orders [79]–[85].
Catchwords:	CRIME — Violent offences — Aggravated robbery — With corporal violence SENTENCING — Relevant factors on sentence — De Simoni/double counting — Special circumstances — Fernando/Bugmy principles
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Brown (aka Davis) v The Queen [2020] VSCA 60 Bugmy v The Queen (2013) 249 CLR 571 Callaghan v R [2006] NSWCCA 58 Fernando v R (1992) 76 A Crim R 58 Melvain v R [2019] NSWCCA 274 R v Despotovski [2020] NSWDC 110 R v Di Simoni (1981) 147 CLR 383 R v Elias [2013] 248 CLR 483 R v Henry (1999) 46 NSWLR 346 R v Lobsey [2012] NSWCCA 239 R v Simpson [2001] NSWCCA 239 R v Thomas [2007] NSWCCA 269
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Benjamin Sean McGuiness (Offender)
Representation:	Solicitors: Ms I Kimber (Crown) Ms S Hedberg (Offender) Counsel: Mr E Anderson (Offender)
File Number(s):	2019/00169981
Publication restriction:	Nil