R v Bennett; Bennett v the Queen - [1990] TASSC 23

Serial No 17/1990
List "A"

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: R v Bennett; Bennett v The Queen [1990] TASSC 23; (1989) Tas R 72; A17/1990

PARTIES:  R
  v
  BENNETT, Philip John Thomas

BENNETT, Philip John Thomas
v
THE QUEEN

FILE NO/S:  CCA 91/1909
DELIVERED ON:  1 June 1990
DELIVERED AT:  Hobart
JUDGMENT OF:  Neasey, Underwood and Crawford JJ

Judgment Number: A17/1990
Number of paragraphs: 51

Serial No 17/1990
List "A"
File No CCA 91/1990

THE QUEEN v PHILIP JOHN THOMAS BENNETT
PHILIP JOHN THOMAS BENNETT v THE QUEEN

REASONS FOR JUDGMENT NEASEY J (Dissenting on
appeal against sentence)

UNDERWOOD J
CRAWFORD J
1 June 1990

ORDERS OF THE COURT:

A The Application for Leave to Appeal Against the Verdict of Acquittal

1 Leave Granted
2 Appeal Dismissed

B The Application for Leave to Appeal Against Sentence

1     Leave Granted
2     Appeal Allowed
3     Sentence of 4½ years' imprisonment quashed and in lieu thereof the applicant is sentenced to 3½ years' imprisonment to date from 27 January 1989. It is ordered that the execution of the last twelve months of that sentence be suspended upon condition that the applicant commits no offence involving violence to the person for a period of two years from the date of his release from prison. Further, a probation order for the same period is made and it is ordered that during its currency the applicant be placed under the supervision of a probation officer and obey his reasonable directions.

Serial No 17/1990
List "A"
File No CCA 91/1990

THE QUEEN v PHILIP JOHN THOMAS BENNETT
PHILIP JOHN THOMAS BENNETT v THE QUEEN

REASONS FOR JUDGMENT NEASEY J
1 June 1990

The application by the Attorney–General

Pursuant to s401(2) of the Criminal Code, the Attorney–General has applied for leave to appeal against the respondent's acquittal on a count of unlawfully causing grievous bodily harm, contrary to s172 of the Code. The respondent at the same time applies for leave to appeal against the sentence of four and one half years imprisonment imposed upon him as a result of his conviction on a number of counts on the same indictment. The respondent was charged on four counts – first, aggravated burglary; second, unlawfully causing grievous bodily harm; third, unlawful wounding; and fourth, stealing a video cassette recorder. He was convicted on the first count, acquitted on count two of unlawfully causing grievous bodily harm, but on that count convicted in the alternative of unlawful wounding; and convicted on counts three and four.

The essential facts of the Crown case were largely undisputed at the trial. The respondent and another man had entered the home of Mr A as trespassers. The other man had removed a video cassette recorder and left the house, but the respondent was confronted by A in the kitchen. A gave evidence that the respondent rushed him, and he felt a jab in the chest. This "jab" turned out to be a substantial knife wound, and was the…

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; Bennett v the Queen

Details

AGLC: R v Bennett; Bennett v the Queen [1990] TASSC 23
Case: [1990] TASSC 23
Decision Date: 1 June 1990

CaseChat Overview and Summary

The case of R v Bennett; Bennett v The Queen, involves an appeal by the Attorney-General against the acquittal of Philip John Thomas Bennett on a count of unlawfully causing grievous bodily harm, and an appeal by Bennett against his sentence. The Court of Criminal Appeal of the Supreme Court of Tasmania heard both appeals on June 1, 1990. The Attorney-General sought leave to appeal against Bennett's acquittal on the ground that the trial judge misdirected the jury on the necessary mental element required for the crime of unlawfully causing grievous bodily harm. Bennett, on the other hand, sought leave to appeal against his sentence, which he considered manifestly excessive. The Court granted leave to both parties but dismissed the Attorney-General's appeal and allowed Bennett's appeal against his sentence.

The Court found that the trial judge's direction to the jury regarding the mental element required for the crime of unlawfully causing grievous bodily harm was correct, and that there was no misdirection. The Court held that the crime requires either actual intent to cause grievous bodily harm or foresight of the likelihood of such harm being caused, and that this mental element is the same as that required for the crime of unlawful wounding. The Court also found that the direction concerning a possible defence of extreme intoxication was too favourable to the accused, but this did not result in any injustice to him.

Regarding Bennett's appeal against his sentence, the Court found that the sentence of 4½ years' imprisonment was manifestly excessive in all the circumstances. The Court considered the nature of the crimes, the consequences of Bennett's criminal conduct, his young age, lack of significant prior convictions, and the mitigatory aspects set out in the pre-sentence report. The Court concluded that the sentence should be reduced to 3½ years' imprisonment, with the last twelve months of the sentence being suspended upon condition that Bennett commits no offence involving violence to the person for a period of two years following his release from prison. The Court also made a probation order for the same period, requiring Bennett to be under the supervision of a probation officer and to obey his reasonable directions.

Orders