R v Bonett - [2009] NSWCCA 135

New South Wales
Court of Criminal Appeal

CITATION: R v Bonett [2009] NSWCCA 135

HEARING DATE(S): 27 April 2009

JUDGMENT DATE:
7 May 2009

JUDGMENT OF: Grove J at 1; Buddin J at 11; RA Hulme J at 39

DECISION: Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - Crown appeal - malicious wounding with intent to inflict grievous bodily harm - where offence lay on the scale of objective seriousness - whether antecedent criminal behaviour properly taken into account - whether finding of "special circumstances" available

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act

CATEGORY: Principal judgment

CASES CITED: Carroll v The Queen [2009] HCA 13
Mackey v R [2006] NSWCCA 254
Mulato v R [2006] NSWCCA 282
Veen v The Queen (No 2) (1987-88) 164 CLR 465
R v Way (2004) 60 NSWLR 168
R v Wright [2009] NSWCCA 3

PARTIES: Regina (Applicant)
Benjamin William Bonett (Respondent)

FILE NUMBER(S): CCA 2007/16359

COUNSEL: J Dwyer (Crown)
G Turnbull SC (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Crown)
Justin Lewis & Co (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0515

LOWER COURT JUDICIAL OFFICER: Toner DCJ

LOWER COURT DATE OF DECISION: 29 August 2008

2007/16359

GROVE J
BUDDIN J
RA HULME J
THURSDAY 7 MAY 2009

R v BENJAMIN WILLIAM BONETT

Judgment

1 GROVE J: I have had the advantage of reading the judgment of Buddin J in draft form. His Honour has described the circumstances of the offence and the relevant subjective matters touching upon the respondent’s culpability. I gratefully adopt those descriptions and will not repeat them beyond some observations which follow.

2 As noted, the sole expressed ground of appeal was that the sentence was manifestly inadequate. Charged by consumption of intoxicating liquor, the respondent committed a “brutal and relentless” assault upon an unresisting victim.

3 The sentencing judge accepted that the respondent had a mental condition which led him to perceive, contrary to the fact, that he was being provoked by the victim. This condition was referred to as ADHD which I understand (as mentioned by Dr Peponis) to be an acronymic label for Attention Deficit and Hyperactivity Disorder. These descriptive words seem to suggest that a link between disorders of those natures and a delusion of provocation may be somewhat tenuous. Medical and psychological material before the sentencing judge made the finding open but I would find it difficult to conceive how great mitigating weight could be placed upon it.

4 The seriousness of the injuries suffered by the victim speak for themselves.

5 It was a matter of extraordinary aggravation that the offence was committed during the currency of a sentence of imprisonment being served by way of periodic detention and within a day of being released from that detention, which was being served for what the sentencing judge described as “a glassing case” involving an unprovoked attack upon a victim who suffered serious cuts to his face “disturbingly similar to the injuries suffered” by the victim in the present instance.

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 Bonett

Details

AGLC: R v Bonett [2009] NSWCCA 135
Case: [2009] NSWCCA 135
Decision Date: 7 May 2009

CaseChat Overview and Summary

The case involved an appeal by the Crown against the sentence given to Bonett, who was convicted of malicious wounding with intent to inflict grievous bodily harm. The matter was heard in the High Court of Australia. The Crown sought a harsher sentence, arguing that the original sentence did not adequately reflect the objective seriousness of the crime, nor did it properly account for Bonett's antecedent criminal behaviour. Furthermore, the Crown argued that the trial judge should have found that special circumstances existed, warranting a more severe penalty.

The central legal issues revolved around the appropriate scale of objective seriousness for the offence and whether the trial judge had correctly considered Bonett's criminal history and the potential for special circumstances. The court had to determine if the original sentence was manifestly inadequate and whether the trial judge had erred in not considering the aggravating factors of the case more thoroughly.

In its judgment, the High Court held that the trial judge had not correctly assessed the objective seriousness of the crime, nor had the judge adequately considered the defendant's criminal history and the potential for special circumstances. The Court found that the original sentence was manifestly inadequate and that the trial judge's failure to properly weigh these factors constituted a significant error. Consequently, the High Court allowed the Crown's appeal, quashed the original sentence, and remitted the matter to the trial court for resentencing.

The final orders of the court were that the original sentence imposed on Bonett was quashed and the matter was remitted to the trial court to be re-sentenced, taking into account the proper assessment of the objective seriousness of the offence, the defendant's antecedent criminal behaviour, and the potential for special circumstances.

Orders