THE QUEEN v BENJAMIN FLOWERS [2014] ACTCA 13 (8 May 2014)
APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – Manifest inadequacy of non-parole period – Relationship between head sentence and non-parole period – Relevant considerations for fixing the non-parole period – Principles governing Crown appeals – Residual discretion not to intervene – Appeal upheld
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 32 of 2013 No. SCA 60 of 2013 No. SCC 239 of 2010
Judges: Refshauge, Penfold and Ross JJ Place: Canberra
Date: 8 May 2014
IN THE SUPREME COURT OF THE) No. ACTCA 32 of 2013 ) No. SCA 60 of 2013 AUSTRALIAN CAPITAL TERRITORY ) No. SCC 239 of 2010
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE QUEEN
Appellant
AND:FLOWERS
Respondent
ORDER
Judges: Refshauge, Penfold and Ross JJ Date: 8 May 2014 Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The respondent be resentenced as follows:
(i)For the offence of recklessly inflict grievous bodily harm, imprisonment for two years and six months;
(ii)For the offence of assault occasioning actual bodily harm, imprisonment for six months, to be served…
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.
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Details
AGLC
R v Flowers [2014] ACTCA 13
Case
[2014] ACTCA 13
Decision Date
CaseChat Overview and Summary
This matter concerned a Crown appeal against the sentence imposed on the respondent, Flowers, by the Supreme Court of the Australian Capital Territory. The Crown argued that the non-parole period fixed by the sentencing judge was manifestly inadequate. The appeal was heard by Refshauge, Penfold and Ross JJ of the Supreme Court.
The central legal issues before the Court were the principles governing Crown appeals against sentence, particularly where the inadequacy of a non-parole period was alleged, and the relationship between a head sentence and the non-parole period. The Court was required to consider the relevant factors for fixing a non-parole period and whether there was a residual discretion to refuse to intervene in the original sentence.
The Court reasoned that while Crown appeals against sentence are not to be undertaken lightly, intervention is warranted where the original sentence is demonstrably unjust or inadequate. The Court emphasised that the non-parole period must reflect the gravity of the offences and the need for deterrence and rehabilitation, and that it should not be disproportionately short compared to the head sentence. Applying these principles, the Court found the original non-parole period to be manifestly inadequate.
Consequently, the Court upheld the Crown's appeal. The respondent was resentenced for the offences of recklessly inflict grievous bodily harm, assault occasioning actual bodily harm, and attempted aggravated robbery. The Court imposed a head sentence of six and a half years imprisonment, with a non-parole period of three years.
Orders
Orders of the court
1. The appeal be upheld.
2. The respondent be resentenced as follows:
(i) For the offence of recklessly inflict grievous bodily harm, imprisonment for two years and six months;
(ii) For the offence of assault occasioning actual bodily harm, imprisonment for six months, to be served wholly concurrently with the offence of recklessly inflict grievous bodily harm; and
(iii) For the offence of attempted aggravated robbery, imprisonment for five years;
(iv) The sentences for recklessly inflict grievous bodily harm and assault occasioning actual bodily harm are to be served cumulatively as to eighteen months upon the sentence for attempted aggravated robbery, resulting in a head sentence of six and a half years imprisonment;