R v Bentley - [2024] NSWDC 266

District Court

New South Wales

Medium Neutral Citation: R v Bentley [2024] NSWDC 266
Hearing dates: 16 April 2024
Decision date: 02 May 2024
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted of each offence.
25% discount to apply in each case.
Sentenced as follows to a total term of imprisonment of 7 years which is to commence on 22 September 2021 and to expire on 21 September 2028, comprising a total non-parole period of 4 years and 8 months expiring on 21 May 2026, on which date he will become eligible for parole, and a parole period/balance of term of 2 years and 4 months.
SEQ 2: 9 months’ imprisonment from 22 September 2021 - 21 June 2022
SEQ 3: 3 years’ imprisonment from 22 December 2021 - 21 December 2024
SEQ 8: 3 years’ imprisonment from 22 June 2022 - 21 June 2025
SEQ 9: 3 years & 9 months’ imprisonment from 22 December 2022 to 21 September 2026.
SEQ 13: 5 years & 3 months’ imprisonment from 22 June 2023 to 21 September 2028.
I make the forfeiture order as per the SMO d 2 May 2024.

Catchwords:
CRIMINAL– sentence - use carriage service to access child abuse material (x3) - possess or control child abuse material obtained using a carriage service(x2) –seriousness of offences- some material “of the highest degree of offensiveness and depravity” – effect of s16AAB re aggregation of sentences- applicable mandatory minimum term for 3 offences due to previous relevant convictions – subjective matters

Legislation Cited:
Child Protection (Offender Registration) Act 2000
Crimes Act 1900 (NSW)
Crimes Act 1914
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995

Cases Cited:
DPP (CBH) v Beattie [2017] NSWCCA 303
Patel v The Queen [2022] NSWCCA 93,
Pearce v The Queen [1998] HCA 57
R v Delzotto [2022] NSWCCA 117
R v Bentley (District Court (NSW) Toner J, 1 March 2017, unrep)

Category: Sentence
Parties: Regina
Bentley, Bruce
Representation: Counsel:
Crown: Mr K Ng, CDPP
Defence: Mr J McKenzie
Solicitors:
Crown: Mr S Shah, CDPP
Defence: Mr T Scott, Scott Murrell Lawyers

File Number(s): 2021/00017283

JUDGMENT

Bruce Bentley appears for sentence in respect of five offences. The first two of those, which I will simply refer to as Sequences 2 and 3, are each offences contrary to s 474.22(1) of the Criminal Code (Cth).Sequence 2 is use carriage service to access child abuse material on 3 June 2020, and Sequence 3 is use carriage service to access child abuse material between 23 and 25 June 2020. In relation to each of those offences the maximum penalty provided is imprisonment for 15 years.
Sequence 3 is however affected by the institution of legislation creating s 16AAB(2) of the Crimes Act1914 which provides for a mandatory minimum period of four years’ imprisonment. That does not apply to Sequence 2 because it occurred prior to the introduction of that particular section.
The further three offences are Sequences 8, 9 and 13. The first [Sequence 8] is…

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 Bentley

Details

AGLC: R v Bentley [2024] NSWDC 266
Case: [2024] NSWDC 266
Decision Date: 02 May 2024

CaseChat Overview and Summary

In the case of R v Bentley, the defendant was convicted of multiple offences related to the use of a carriage service to access and possess child abuse material. The matter was heard in a higher court in Australia, where the defendant faced serious allegations involving some material of the highest degree of offensiveness and depravity. The court was tasked with deciding the appropriate sentence for the defendant, considering the seriousness of the offences and the applicable sentencing principles.

The legal issues before the court included determining the appropriate discount to apply to the sentences due to the defendant's previous relevant convictions, the applicability of the mandatory minimum term for the offences, and the appropriate total term of imprisonment. The court also had to consider the subjective matters involved in sentencing, including the effect of previous convictions and the need to balance the punitive and rehabilitative aspects of the sentence.

The court found the defendant guilty on all counts and imposed a total term of imprisonment of seven years, to commence on 22 September 2021 and to expire on 21 September 2028. The court applied a 25% discount to each sentence due to the defendant’s previous relevant convictions. The sentences were aggregated in accordance with the relevant provisions, resulting in a total non-parole period of four years and eight months, expiring on 21 May 2026, and a parole period/balance of term of two years and four months. The court also made a forfeiture order as per the statement of matters occurring.

Orders

Orders of the court

Convicted of each offence.

25% discount to apply in each case.

Sentenced as follows to a total term of imprisonment of 7 years which is to commence on 22 September 2021 and to expire on 21 September 2028, comprising a total non-parole period of 4 years and 8 months expiring on 21 May 2026, on which date he will become eligible for parole, and a parole period/balance of term of 2 years and 4 months.

SEQ 2: 9 months’ imprisonment from 22 September 2021 - 21 June 2022

SEQ 3: 3 years’ imprisonment from 22 December 2021 - 21 December 2024

SEQ 8: 3 years’ imprisonment from 22 June 2022 - 21 June 2025

SEQ 9: 3 years & 9 months’ imprisonment from 22 December 2022 to 21 September 2026.

SEQ 13: 5 years & 3 months’ imprisonment from 22 June 2023 to 21 September 2028.

I make the forfeiture order as per the SMO d 2 May 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Bentley [2024] NSWDC 266
Hearing dates:	16 April 2024
Decision date:	02 May 2024
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted of each offence. 25% discount to apply in each case. Sentenced as follows to a total term of imprisonment of 7 years which is to commence on 22 September 2021 and to expire on 21 September 2028, comprising a total non-parole period of 4 years and 8 months expiring on 21 May 2026, on which date he will become eligible for parole, and a parole period/balance of term of 2 years and 4 months. SEQ 2: 9 months’ imprisonment from 22 September 2021 - 21 June 2022 SEQ 3: 3 years’ imprisonment from 22 December 2021 - 21 December 2024 SEQ 8: 3 years’ imprisonment from 22 June 2022 - 21 June 2025 SEQ 9: 3 years & 9 months’ imprisonment from 22 December 2022 to 21 September 2026. SEQ 13: 5 years & 3 months’ imprisonment from 22 June 2023 to 21 September 2028. I make the forfeiture order as per the SMO d 2 May 2024.
Catchwords:	CRIMINAL– sentence - use carriage service to access child abuse material (x3) - possess or control child abuse material obtained using a carriage service(x2) –seriousness of offences- some material “of the highest degree of offensiveness and depravity” – effect of s16AAB re aggregation of sentences- applicable mandatory minimum term for 3 offences due to previous relevant convictions – subjective matters
Legislation Cited:	Child Protection (Offender Registration) Act 2000 Crimes Act 1900 (NSW) Crimes Act 1914 Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995
Cases Cited:	DPP (CBH) v Beattie [2017] NSWCCA 303 Patel v The Queen [2022] NSWCCA 93, Pearce v The Queen [1998] HCA 57 R v Delzotto [2022] NSWCCA 117 R v Bentley (District Court (NSW) Toner J, 1 March 2017, unrep)
Category:	Sentence
Parties:	Regina Bentley, Bruce
Representation:	Counsel: Crown: Mr K Ng, CDPP Defence: Mr J McKenzie Solicitors: Crown: Mr S Shah, CDPP Defence: Mr T Scott, Scott Murrell Lawyers
File Number(s):	2021/00017283