R v Bennett - [2009] VSCA 42

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 135 of 2008

THE QUEEN
	v
CLINTON BENNETT

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JUDGES:	VINCENT and NETTLE JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2009
DATE OF JUDGMENT:	12 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 42

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CRIMINAL LAW – Sentencing – Trafficking in a drug of dependence – Specific deterrence – Manifest excessiveness – Whether lack of remorse indicative of need for specific deterrence – Whether sentence of 28 months’ imprisonment with 10 months suspended for two years manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr G M Hughan	Robert Stary & Associates

VINCENT JA:

I will invite Nettle JA to deliver the first judgment in this matter.

NETTLE JA:

This is an appeal, with leave, against a sentence of 28 months' imprisonment, of which 10 months were suspended for two years, imposed on the appellant on pleading guilty to one count of trafficking in a drug of dependence. The appellant also pleaded guilty to one count of being in possession of a registered general category handgun, not being a collector or licensed, for which he was fined $1,000. But there is no complaint about that aspect of the sentence.

There are three grounds of appeal. The first is a complaint that the judge was guilty of specific error in concluding that specific deterrence was an important sentencing consideration. Secondly, it is contended that the judge erred in finding that the evidence was not sufficient to persuade her on the balance of probabilities that the appellant had been addicted to the drug in which he trafficked. Thirdly, it is said that the sentence is manifestly excessive.

In my view, there is nothing of substance in any of the three complaints.

Specific deterrence

In dealing with the mitigatory considerations urged on behalf of the appellant in the course of the plea, the judge said this:

In mitigation of the sentence, I have also allowed a discount for your plea of guilty, which followed the committal hearing, as this has spared the community the cost of a contested trial, and the witnesses the inconvenience of attending court. This plea, and to the extent that your father gave evidence that for you your arrest was an ‘eye opener’, I am quoting him, are indicators of a level of remorse, as is the fact that you have taken steps to improve your lifestyle and establish yourself in steady employment, all of which bode well for your future.
However, these matters notwithstanding, I have had difficulty in establishing from the material before me any direct evidence of regret on your part, beyond your concern about the predicament you find yourself in. Therefore, whilst there is evidence of good progress with your rehabilitation, specific deterrence nevertheless remains an important sentencing consideration.

Counsel for the appellant submitted that the judge…

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 [2009] VSCA 42
Case: [2009] VSCA 42
Decision Date: 12 March 2009

CaseChat Overview and Summary

The case of R v Bennett was heard in an Australian court, where the appellant, Bennett, appealed against the sentence imposed for trafficking in a drug of dependence. The dispute centred on the appropriateness and severity of the sentence, with Bennett arguing that it was manifestly excessive and did not appropriately consider his lack of remorse. The court was tasked with determining whether the sentence imposed was proportionate and whether Bennett’s lack of remorse warranted a specific deterrent sentence.

The primary legal issue before the court was whether the sentence of 28 months' imprisonment, with 10 months suspended for two years, was manifestly excessive and whether the court had failed to adequately consider Bennett’s lack of remorse in determining the appropriate sentence. The court had to weigh the need for specific deterrence against the overall severity of the sentence. The appeal hinged on the interpretation of the principles of sentencing and the application of the doctrine of manifest excessiveness.

The court, in dismissing the appeal, held that the sentence was not manifestly excessive. The primary judge had considered the principles of sentencing and the need for specific deterrence in light of Bennett’s lack of remorse. The court found that the sentence was proportionate to the offence and the offender, and did not err in its approach. The appeal was dismissed, affirming the sentence imposed by the trial judge.

The court did not make any further orders beyond dismissing the appeal, affirming the original sentence.

Orders