Legal Research
Cases
R v Bennett

R v Bennett

Case [2011] SASCFC 68 24 August 2011

Type to search within this case.

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BENNETT
[2011] SASCFC 68
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice David)
24 August 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING GUIDELINES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
Appeal against sentence – appellant pleaded guilty to aggravated driving without due care – two features of aggravation, viz death of cyclist and driving disqualified – breach of good behaviour bond imposed for prior drive disqualified offence – sentence of 15 months imprisonment for the drive disqualified cumulative on 8 months for aggravated driving without due care – non-parole period of 14 months – licence disqualification for 5 years cumulative upon previous disqualification of 2 years and 8 months.
Whether Judge erred by sentencing appellant for the drive disqualified offence on a mistaken factual basis – whether penalty imposed for the drive disqualified offence was manifestly excessive – no finding of contumacy – sentence imposed higher than prevailing sentencing standards.
Appeal allowed – sentence for drive disqualified offence reduced to a period of 7 months imprisonment to be served cumulative upon sentence of 8 months for offence of aggravated driving without due care – total sentence 15 months - non-parole period of 10 months – appellant resident in rural community with limited transport – licence disqualification particularly onerous with respect to future employment – appeal allowed to reduce disqualification to a term of 2 years to commence when the first period of disqualification of 2 years and 8 months expires.
Motor Vehicles Act 1959 s 91(5); Road Traffic Act 1961 (SA) ss 45 and 169B(1), referred to.
Police v Cadd (1997) 69 SASR 150; R v Gathercole [2001] SASC 248, distinguished.
Sadler v Crossman (1988) 47 SASR 331; Peart v Police [2003] SASC 274; Nash v Police [2009] SASC 112; Khammash v Police [1999] SASC 225; R, J v Police [2006] SASC 153; Nattrass v Police [2008] SASC 267; Police v Jachmann [2010] SASC 345; Jones v Police [2001] SASC 346, considered.

R v BENNETT
[2011] SASCFC 68
Court of Criminal Appeal: Doyle CJ, Nyland and David JJ

DOYLE CJ: I agree with the orders proposed by Nyland J. I agree also with the reasons for making those orders.
NYLAND J: This is an appeal against sentence. The appellant pleaded guilty to the offence of aggravated driving without due care which occurred at Minlaton on 5 March 2010 when the appellant’s motor car collided with a bicycle being ridden by Chris Hudson, thereby causing Mr Hudson’s death. At that time the appellant was disqualified from holding or obtaining a driver’s licence. The appellant was not charged with a separate offence of drive disqualified but that was alleged as a circumstance of aggravation.
Prior history
The appellant’s antecedent report discloses a number of…

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 [2011] SASCFC 68
Case: [2011] SASCFC 68
Decision Date: 24 August 2011

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Mr Bennett, by a judge of the District Court. Mr Bennett had pleaded guilty to aggravated driving without due care, with the aggravating factors being the death of a cyclist and driving whilst disqualified. He also breached a good behaviour bond imposed for a prior offence of driving whilst disqualified. The judge sentenced him to 15 months imprisonment for the aggravated driving offence and a further cumulative sentence of 8 months for the drive disqualified offence, with a non-parole period of 14 months. A licence disqualification of 5 years was also imposed, cumulative upon a previous disqualification.

The central legal issues before the Court of Criminal Appeal were whether the sentencing judge erred by basing the sentence for the drive disqualified offence on a mistaken factual basis, and whether the total penalty imposed was manifestly excessive, particularly in light of prevailing sentencing standards and the absence of any finding of contumacy. The court was also asked to consider the impact of the cumulative licence disqualification on the appellant's future employment prospects.

The Court of Criminal Appeal allowed the appeal, finding that the penalty for the drive disqualified offence was indeed excessive. The court reduced the sentence for this offence to 7 months imprisonment, to be served cumulatively on the 8 months for the aggravated driving offence, resulting in a total sentence of 15 months imprisonment. The non-parole period was reduced to 10 months. Furthermore, the court acknowledged the significant impact of the cumulative licence disqualification on the appellant, who resided in a rural community, and reduced the disqualification period to 2 years, to commence upon the expiry of the existing disqualification.

Orders