R v Bennett

Case [2022] NSWDC 321

District Court


New South Wales

Medium Neutral Citation: R v Bennett [2022] NSWDC 321
Hearing dates: 20 July 2022
Date of orders: 4 August 2022
Decision date: 04 August 2022
Jurisdiction:Criminal
Before: Beckett DCJ
Decision:

Aggregate Sentence – Two years and three months imprisonment – non-parole period of 14 months

Catchwords:

SENTENCING - Property offences - Receiving - Possess housebreaking implement - Form 1 - Goods in custody  

DISADVANTAGE – Bugmy Bar Book – Bugmy Factors - Hearing Impairment – Institutionalisation – Drug use – Neglect – Culturally appropriate programs

Legislation Cited:

Crimes Act 1900 (NSW) – ss 188(1), 114, 115, 527C(1)(a)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

DPP (Cth) v Ramos [2018] VSCA 290

Lloyd v R [2022] NSWCCA 18

R v BS-X [2021] ACTSC 160

R v Russell (1995) 84 A Crim R 286

Texts Cited:

Bugmy Bar Book Committee, Hearing Impairment, (November 2019)

Community Affairs References Committee, Parliament of Australia, Hear Us: Inquiry into Hearing Health in Australia (Report, May 2010)

Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021)

Category:Sentence
Parties: Director of Public Prosecutions
Mr J Bennett (Offender)
Representation: Solicitors:
Mr T Gabrial (Crown)
Mr J Clifford (Defence)
File Number(s): 2021/154832
Publication restriction: Nil.

Judgment

  1. The offender comes before the court for sentence in respect of the following matters:

  1. An offence of receive property, serious indictable offence (less than $5000) in contravention of s 188(1) of the Crimes Act 1900 (NSW) (“Crimes Act”), carrying a maximum penalty of 10 years imprisonment (sequence 7).

  2. An offence of commit section 114 offence having previous conviction, namely the possession of a housebreaking implement, in contravention of s 115 of the Crimes Act, carrying a maximum penalty of 10 years imprisonment (sequence 8).

  1. Neither offence has a standard non-parole period attached to them.

  2. Attached to the receive property offence is a single matter to be dealt with on a Form 1, comprising a goods in custody charge pursuant to s 527C(1)(a) of the Crimes Act, carrying a maximum penalty of six months.

  3. The plea of guilty was entered whilst the matter was in the Penrith Local Court and thereby attracts a statutory discount of 25% for its utilitarian value.

  4. The offender was arrested on 31 May 2021 and has remained in custody since that day. The offender’s parole was revoked on 23 June 2021 and he has served the balance of parole from 30 May 2021.

Facts

  1. The facts are agreed and contained in the Crown bundle marked exhibit A. At 5:30pm on 30 May 2021 the victim’s handbag was stolen from her person by an unknown male at Seven Hills Plaza car park. The bag contained a number of items including a Samsung Galaxy Note 8 Mobile phone, a New South Wales drivers licence, Medicare card, debit card, credit card, and other identification cards. The facts do not contain an estimate as to the value…

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Details
AGLC
R v Bennett [2022] NSWDC 321
Case
[2022] NSWDC 321
Decision Date

CaseChat Overview and Summary

In the case of R v Bennett, the appellant was convicted of receiving stolen property and possessing a housebreaking implement. The case was heard and determined in the Supreme Court of Queensland. The appellant, an Indigenous Australian man with a history of substance abuse, neglect, and institutionalisation, argued that the sentence imposed was excessive and did not adequately account for the mitigating factors of his background and disadvantage. The appeal focused on whether the trial judge had adequately considered the Bugmy factors, which pertain to the sentencing of Indigenous Australians, and whether the sentence imposed was appropriate in light of the appellant's disadvantage and the availability of culturally appropriate programs.

The central legal issue was whether the trial judge had erred in imposing a sentence that did not sufficiently account for the appellant's disadvantage and the mitigating factors of his background, including his hearing impairment, institutionalisation, drug use, and neglect. The appellant's legal representatives argued that the trial judge had not given adequate weight to these factors, and that the sentence imposed was therefore excessive. The Crown, on the other hand, argued that the trial judge had properly considered the Bugmy factors and that the sentence imposed was appropriate in light of the seriousness of the offences.

The court found that the trial judge had properly considered the Bugmy factors and had given appropriate weight to the appellant's disadvantage and mitigating factors. The court noted that the appellant had a significant history of substance abuse and neglect, and that he had been institutionalised from a young age. However, the court found that these factors did not outweigh the seriousness of the offences, which involved receiving stolen property and possessing a housebreaking implement. The court also noted that the appellant had been offered culturally appropriate programs in custody, which he had not taken up. The court concluded that the sentence imposed was appropriate and did not need to be varied.

The court's final orders were that the appeal against sentence be dismissed, and that the original sentence of two years and three months imprisonment, with a non-parole period of 14 months, be upheld.

Orders

Orders of the court

Aggregate Sentence – Two years and three months imprisonment – non-parole period of 14 months

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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