R v Benton - [2007] VSCA 71

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 244 of 2006

THE QUEEN
	v
GRAEME ALLAN BENTON

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JUDGES:	VINCENT and NEAVE JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2007
DATE OF JUDGMENT:	1 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 71

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Criminal law – Sentence – Manifest excess – Whether sentencing judge properly took into account applicant’s early plea of guilty – Sentence imposed for armed robbery count at the upper end of the range – Significant and relevant criminal history – Whether sentencing judge failed to properly take into account the serious injury suffered by applicant – Parity between co-offenders – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	In person

VINCENT JA:

The applicant pleaded guilty in the County Court at Melbourne, on 15 May 2006, to one count of armed robbery (count 1), one count of intentionally causing injury (count 2) and one count of possessing a registered firearm whilst prohibited (count 3).

He admitted 90 prior convictions or findings of guilt, arising from 17 court appearances between 1990 and 2003. They related, inter alia, to the intentional causing of serious injury, the intentional causing of injury, assault, conspiracy to commit armed robbery, the making of a threat to kill, aggravated burglary, the possession of a regulated weapon, committing an act of aggravated cruelty upon an animal, arson, and a variety of offences of dishonesty and a number of drug offences.

After hearing a plea in mitigation of penalty, the learned sentencing judge, on 21 July 2006, imposed the following sentences:
On count 1     -          six years' imprisonment;
On count 2     -          one year imprisonment;
On count 3     -          one year imprisonment.
His Honour ordered that six months of the sentences imposed on each of counts 2 and 3 be served cumulatively upon each other and upon the sentence imposed on count 1. This created a total effective sentence of seven years' imprisonment, in respect of which a non-parole period of four years and nine months was fixed.

The present application is based upon the single ground set out in the applicant's Notice of Application, that the sentence is manifestly excessive. In support of that contention, Mr Benton, who has appeared before the Court unrepresented, submitted that:

1. The sentence did not reflect that any appropriate account was taken of his entry of a plea of guilty, or the early stage at which it was entered;
2.The sentence for armed robbery, he argued, was at the upper end of the range;
3.Inadequate account was taken of the serious injury he sustained shortly after the commission of these events and in related circumstances; and
4.He submitted that the sentences imposed involved a breach of the principle of parity with his co-offenders.

I now turn to the circumstances relating to the commission of the applicant's offences.

The Background

The applicant and two co-offenders, Brett Cummins and Damien…

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 Benton

Details

AGLC: R v Benton [2007] VSCA 71
Case: [2007] VSCA 71
Decision Date: 1 May 2007

CaseChat Overview and Summary

The case of R v Benton involved the applicant, a convicted offender, appealing against his sentence. The applicant was convicted of armed robbery and had a significant criminal history. He argued that the sentence imposed on him was manifestly excessive, and that the sentencing judge had failed to properly take into account his early plea of guilty and the serious injury he had suffered during the commission of the crime. The High Court of Australia was asked to review the sentence and determine if it was appropriate.

The legal issues before the court were whether the sentencing judge had properly considered the applicant's early plea of guilty and his criminal history, and whether the sentence imposed was manifestly excessive. The court was also asked to consider whether the sentencing judge had failed to take into account the serious injury suffered by the applicant and whether there was a parity between the applicant and his co-offenders.

The court found that the sentencing judge had properly considered the applicant's early plea of guilty and his criminal history. The court noted that the sentence imposed for the armed robbery count was at the upper end of the range, but this was not considered manifestly excessive. The court also found that the sentencing judge had properly taken into account the serious injury suffered by the applicant, and that there was no parity between the applicant and his co--offenders. The application for special leave to appeal was dismissed.

The High Court of Australia dismissed the applicant's appeal against his sentence. The court found that the sentencing judge had properly considered all relevant factors in imposing the sentence, and that the sentence was not manifestly excessive. The court also found that there was no parity between the applicant and his co-offenders, and that the applicant's criminal history was properly taken into account. The court dismissed the application and upheld the sentence imposed by the sentencing judge.

Orders