R v Bennet - [2018] NSWDC 454

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v BENNET [2018] NSWDC 454
Hearing dates: 21 September 201824 September 2018
Decision date: 02 October 2018
Jurisdiction: Criminal
Before: KING SC DCJ
Decision:
Convicted.
Special circumstances found – to provide for an extended period of supervised parole to assist in drug rehabilitation and to assist the offender in not re-offending.
Form 1 matters taken into account on sentence imposed.
Sentenced to a total term of imprisonment for 5 years, comprising of a NPP of 3 years to commence on 5/9/17 and to expire on 4/9/20 and a balance of term of 2 years to commence on 5/9/20 and to expire on 4/9/22.

Catchwords: CRIMINAL – Sentence – supply prohibited drug on ongoing basis – methylamphetamine – Form 1 offences (supply methlamphetamine) - subjective matters – mental health issues – deprived background – relationship between mental health issues and offending
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (Number 1 of 2002) (2002) NSWCCA 518
R v Beale [2015] NSWCCA 120
DPP (Cth) v De La Rosa (2010) 205 ACrimR 1
R v Bugmy [2013] HCA 37
R v Fernando (1992) 76 A Crim R 58
R v Hoskins [2016] NSWCCA 157
R v McIlwraith [2017] NSWCCA 13
R v Thomson; R v Houlton (2000) 115 ACrimR 104
R v Wasson [2014] NSWCCA 95
Category: Sentence
Parties: Regina
Toni Leanne BENNET
Representation:
Counsel:
Defence: Mr S Fraser
Solicitors:
Crown: Mr A Brookman

File Number(s): 2017/00270388

Judgment

HIS HONOUR: Toni Bennet appears for sentence in respect of a single offence of supply prohibited drugs on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided is 20 years imprisonment and/or 3,500 penalty units. There is no relevant standard non-parole period.
In addition to being sentenced in respect of that offence, she asks the Court to take into account a further four offences contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. Those offences are further offences of Supply:

1. Supply on 18 July 2017 of 0.26 grams of methylamphetamine;

2. Supply on 20 July 2017 of 0.64 grams of methylamphetamine;

3. Supply on 20 July 2017 of 0.21 grams of methylamphetamine;

4. Supply on 5 September 2017 of 1.8 grams of methylamphetamine.

Miss Bennet was arrested on 5 September 2017 and has been in custody since that date solely in relation to these matters.
The facts are as follows:

1. On 14 July 2017 New South Wales Police commenced an authorised controlled operation targeting the supply of prohibited drugs. The operation involved the use of telephone intercepts, physical and electronic surveillance, as well as undercover operatives.

2. Between 17 August 2017 and 5 September 2017 police initiated lawful intercepts of the offender's phones, being 0401 432 532 and 0431 057 880.

3. The offender…

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 Bennet

Details

AGLC: R v Bennet [2018] NSWDC 454
Case: [2018] NSWDC 454
Decision Date: 02 October 2018

CaseChat Overview and Summary

Bennet was convicted for multiple counts of supplying methylamphetamine, a prohibited drug, in the Local Court. The appeal against conviction was dismissed, and the appeal against sentence was allowed in part, with the sentence being varied. The offender appealed against both his conviction and sentence. The primary legal issue was whether the evidence was sufficient to prove the charges beyond reasonable doubt. Additionally, the court had to consider the appropriate sentence, taking into account the offender's background, mental health issues, and the nature of the offences.

The court reviewed the evidence and found it to be sufficient to support the conviction. The court acknowledged the offender's deprived background and mental health issues but emphasised that these factors did not excuse the offending behaviour. The court considered the subjective matters presented but ultimately found that they did not significantly mitigate the seriousness of the offences. The court imposed a sentence of 5 years imprisonment, with a non-parole period of 3 years, followed by a balance of term of 2 years. The court also found special circumstances, ordering an extended period of supervised parole to assist with drug rehabilitation and prevent re-offending.

The court's reasoning focused on the need to balance the offender's circumstances with the seriousness of the offences. While acknowledging the offender's background and mental health issues, the court emphasised the importance of deterrence and protection of the community. The court varied the sentence to provide an opportunity for rehabilitation and support, while also ensuring that the sentence reflected the gravity of the offences.

The final orders included the offender being convicted, with an extended period of supervised parole to assist in drug rehabilitation and to prevent re-offending. The sentence was varied to a total term of imprisonment for 5 years, with a non-parole period of 3 years, to commence on 5 September 2017 and to expire on 4 September 2020, and a balance of term of 2 years, to commence on 5 September 2020 and to expire on 4 September 2022. The court also found special circumstances to be present.

Orders

Orders of the court

Convicted.

Special circumstances found – to provide for an extended period of supervised parole to assist in drug rehabilitation and to assist the offender in not re-offending.

Form 1 matters taken into account on sentence imposed.

Sentenced to a total term of imprisonment for 5 years, comprising of a NPP of 3 years to commence on 5/9/17 and to expire on 4/9/20 and a balance of term of 2 years to commence on 5/9/20 and to expire on 4/9/22.

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 BENNET [2018] NSWDC 454
Hearing dates:	21 September 201824 September 2018
Decision date:	02 October 2018
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Convicted. Special circumstances found – to provide for an extended period of supervised parole to assist in drug rehabilitation and to assist the offender in not re-offending. Form 1 matters taken into account on sentence imposed. Sentenced to a total term of imprisonment for 5 years, comprising of a NPP of 3 years to commence on 5/9/17 and to expire on 4/9/20 and a balance of term of 2 years to commence on 5/9/20 and to expire on 4/9/22.
Catchwords:	CRIMINAL – Sentence – supply prohibited drug on ongoing basis – methylamphetamine – Form 1 offences (supply methlamphetamine) - subjective matters – mental health issues – deprived background – relationship between mental health issues and offending
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (Number 1 of 2002) (2002) NSWCCA 518 R v Beale [2015] NSWCCA 120 DPP (Cth) v De La Rosa (2010) 205 ACrimR 1 R v Bugmy [2013] HCA 37 R v Fernando (1992) 76 A Crim R 58 R v Hoskins [2016] NSWCCA 157 R v McIlwraith [2017] NSWCCA 13 R v Thomson; R v Houlton (2000) 115 ACrimR 104 R v Wasson [2014] NSWCCA 95
Category:	Sentence
Parties:	Regina Toni Leanne BENNET
Representation:	Counsel: Defence: Mr S Fraser Solicitors: Crown: Mr A Brookman
File Number(s):	2017/00270388