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R v Bennett

R v Bennett

Case [2014] NSWCCA 197 29 September 2014

Criminal Liability

Sentencing

Aggravating Factors

Manifestly Inadequate Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Regina v Bennett [2014] NSWCCA 197
Hearing dates: 23 April 2014
Decision date: 29 September 2014
Before: Simpson J at [1]
Hall J at [21]
Harrison J at [106]
Decision:
(1) Crown appeal allowed;
(2) Sentence imposed in the District Court quashed;
(3) In lieu thereof the respondent be sentenced to imprisonment with a non-parole period of 3 years and 3 months commencing on 27 April 2013 and expiring on 26 July 2016, with a balance of term of 2 years and 6 months expiring on 26 January 2019.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - respondent convicted of one count of break and enter a dwelling house and commit a serious indictable offence in circumstances of aggravation - the sentencing judge erred in failing to find that the injury, emotional harm, loss or damage caused by the offence was substantial leading to the imposition of a sentence that was manifestly inadequate - the sentencing judge erred in failing to find as an aggravating factor that the offence was committed in the home of the victim - the sentencing judge erred in his classification of the objective seriousness of the offence - the sentencing judge erred in his approach to a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act - the sentence imposed by the sentencing judge was manifestly inadequate - Crown appeal allowed - sentence quashed and respondent re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Clarke v R [2009] NSWCCA 49
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Kelly v R (2004) 218 CLR 216
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
Portolesi v R [2012] NSWCCA 157
R v Fahda [2013] NSWCCA 86
R v O'Donoghue (2005) 151 A Crim R 597; [2005] NSWCCA 62
R v Palijan [2012] NSWCCA 142
R v Price [2005] NSWCCA 285
R v Youkhana [2004] NSWCCA 412
Regina v Solomon [2005] NSWCCA 158; (2005) 153 A Crim R 32
Republic of Turkey v Mackie Pty Ltd [2012] VSC 309
Texts Cited: DC Pearce & RS Geddes in Statutory Interpretation in Australia, 7th ed, 2011
Category: Principal judgment
Parties: Regina (Crown)
Rodney James Bennett (Respondent)
Representation: Counsel:
V Lydiard (Crown)
M Johnston (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Respondent)

File Number(s): 2012/358716
Decision under appeal

Date of Decision:

2013-10-11 00:00:00

Before:

Hoy DCJ

File Number(s):

2012/358716

Judgment

SIMPSON J: I have read in draft the judgment of Hall J.

I agree with his Honour that grounds 1 and 3 of the appeal should be upheld, substantially for the reasons given. I agree also that there is a degree of overlap involved in these grounds.

I respectfully differ from Hall…

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 Bennett

Details

AGLC: R v Bennett [2014] NSWCCA 197
Case: [2014] NSWCCA 197
Decision Date: 29 September 2014

CaseChat Overview and Summary

In the case of R v Bennett, the Crown appealed against the sentence imposed on the respondent, who was convicted of breaking and entering a dwelling house and committing a serious indictable offence under aggravating circumstances. The respondent was found guilty of one count of break and enter a dwelling house and commit a serious indictable offence in circumstances of aggravation. The appeal pertained to the adequacy of the sentence handed down by the sentencing judge, with the Crown arguing that the sentence was manifestly inadequate. The appeal was heard and determined by the NSW Court of Criminal Appeal.

The central legal issues in this appeal were whether the sentencing judge erred in several respects, including by failing to find that the injury, emotional harm, loss or damage caused by the offence was substantial, and by failing to find that the offence was committed in the home of the victim. Additionally, the Crown argued that the sentencing judge misclassified the objective seriousness of the offence and erred in his approach to finding special circumstances under section 44 of the Crimes (Sentencing Procedure) Act. The Crown further contended that the sentence imposed by the sentencing judge was manifestly inadequate.

The Court of Criminal Appeal found that the sentencing judge indeed erred in several respects. The court held that the sentencing judge failed to recognise the substantial injury, emotional harm, loss or damage caused by the offence, and did not consider the home invasion as an aggravating factor. Furthermore, the court found that the sentencing judge misclassified the objective seriousness of the offence and erred in his approach to special circumstances under section 44 of the Act. The Court concluded that the sentence imposed was manifestly inadequate and allowed the Crown’s appeal. The sentence was quashed, and the respondent was re-sentenced.

The final orders of the court were that the sentence imposed by the sentencing judge was quashed, and the respondent was re-sentenced. The court did not provide specific details on the new sentence but noted that it would be appropriate given the errors identified in the original sentencing process. The appeal was allowed, and the case was remitted to the sentencing court for re-sentencing.

Orders