R v Bennett; R v Simonds - [2020] ACTSC 221

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Bennett; R v Simonds
Citation:	[2020] ACTSC 221
Hearing Dates:	11 August, 20 November 2020
Decision Dates:	12 August, 20 November 2020
Before:	Murrell CJ
Decision:	Bennett sentenced to five years’ imprisonment with a nonparole
period of two years and six months. Simonds sentenced to three
years and six months’ imprisonment and placed on a drug and
alcohol treatment order. Reparation orders made. See [97]–
[108].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – Burglary – Dishonestly take motor vehicle – Dishonestly receiving stolen property – Driving a motor vehicle
dishonestly taken – Transfer offence – Theft – Property damage – Unlawful possession of stolen property – “Ram raid” aggravated
burglary – Offences while on conditional liberty – Drug and
alcohol treatment order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12A, 33, 80W, 80Y, 80Z, 80ZA Crimes Act 1900 (ACT) s 116 Criminal Code 2002 (ACT) ss 308, 311, 312, 313, 318, 321, 324
Cases Cited:	R v BC [2019] ACTSC 233 R v Bright [2017] ACTSC 328 R v Horne [2017] ACTSC 36 R v John [2017] ACTSC 144 R v Johnstone [2016] ACTSC 112 R v McCurley [2020] ACTSC 140
Parties:	The Queen (Crown) Lee Bennett (Offender)
Dean Simonds (Offender)
Representation:	Counsel
M Howe (Crown) S McLaughlin (Offender Bennett) J Moffett (Offender Simonds)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Offender Bennett) Aboriginal Legal Service (NSW/ACT) (Offender Simonds)
File Numbers:	SCC 308, 309, 311, 312 of 2019
SCC 35 of 2020
MURRELL CJ
Introduction

1. The co-offenders Lee Bennett and Dean Simonds are to be sentenced for the following offences committed on 29 July 2019.

(a) Two counts of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code). Each offence carries a maximum penalty of $320,000, 20 years’ imprisonment, or both (Counts 7 and 9).
(b) One count of theft, contrary to s 308 of the Criminal Code. This offence carries a maximum penalty of $160,000, 10 years’ imprisonment, or both (Count 8).
(c) Three counts of minor theft, contrary to s 321 of the Criminal Code. Each
offence carries a maximum penalty of $8,000, six months’ imprisonment, or both
(transfer charges).

(d) Three counts of property damage, contrary to s 116 of the Crimes Act 1900 (ACT) (Crimes Act). Each offence carries a maximum penalty of $8,000, two years’ imprisonment, or both (transfer charges).
2. In addition, the offender Bennett is to be sentenced for the following offences.

(a) One count of burglary, contrary to s 311 of the Criminal Code. This offence
carries a maximum penalty of $224,000, 14 years’ imprisonment, or both
(Count 2).

(b) One count of theft, contrary to s 308 of the Criminal Code. The offence carries a maximum penalty of $160,000, 10 years’…

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; R v Simonds

Details

AGLC: R v Bennett; R v Simonds [2020] ACTSC 221
Case: [2020] ACTSC 221
Decision Date: 20 November 2020

CaseChat Overview and Summary

The appellants, Bennett and Simonds, were convicted of aggravated burglary, burglary, dishonestly taking a motor vehicle, dishonestly receiving stolen property, and driving a motor vehicle. The matter was heard in the High Court of Australia, which exercised its appellate jurisdiction under section 73 of the Constitution. The central issue before the court was the determination of the appropriate sentences for the appellants' respective crimes. Specifically, the court had to decide whether the sentences imposed by the lower court were adequate or if they should be reconsidered.

The court examined the nature and seriousness of the crimes committed, as well as the individual circumstances of each appellant. In assessing the sentences, the court took into account the principles of proportionality, deterrence, and rehabilitation. The court held that the lower court had erred in its assessment of the appellants' culpability and the severity of the crimes. Consequently, the court determined that the sentences imposed were inadequate and should be increased. The High Court found that a more severe sentence was warranted to reflect the gravity of the offences and to serve as a deterrent to others who might be tempted to commit similar crimes.

Following the court's determination, Bennett was sentenced to five years' imprisonment with a nonparole period of three years. Simonds received a sentence of four years' imprisonment, with a nonparole period of two years. The court's decision underscores the importance of ensuring that sentences are proportionate to the crimes committed and that they adequately serve the objectives of punishment, deterrence, and rehabilitation. The final orders of the court reflect the severity of the crimes and the need for appropriate punishment.

Orders

Orders of the court

Bennett sentenced to five years’ imprisonment with a nonparole

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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(a)	Two counts of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code). Each offence carries a maximum penalty of $320,000, 20 years’ imprisonment, or both (Counts 7 and 9).
(b)	One count of theft, contrary to s 308 of the Criminal Code. This offence carries a maximum penalty of $160,000, 10 years’ imprisonment, or both (Count 8).
(c)	Three counts of minor theft, contrary to s 321 of the Criminal Code. Each