R v Flowers

Case [2014] ACTCA 13


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

Crimes Act 1900 (ACT), ss 20, 24
Crimes (Sentence Administration) Act 2005 (ACT), s 33, 140
Crimes (Sentencing) Act 2005 (ACT)

Criminal Code 2002 (ACT), s 310

Barbaro v The Queen [2014] HCA 2
Bayram v R [2012] VSCA 6

Bugmy v The Queen (1990) 169 CLR 525

Bugmy v The Queen [2013] HCA 37
Bui v DPP (2012) 284 ALR 445
Davey v R [2010] VSCA 346
Dinsdale v The Queen (2000) 202 CLR 321
DPP v Arvanitidis [2008] VSCA 189
DPP v Bourozikas [2009] VSCA 29
DPP (Cth) v Gregory [2011] VSCA 145
DPP (Vic)_v Bulfin [1998] 4 VR114
DPP (Vic) v Josefski (2005) 158 A Crim R 185
DPP (Vic) v Karazisis [2010] VSCA 350
Everett v The Queen (1994) 181 CLR 295
Hili v The Queen [2010] 242 CLR 520
House v King (1936) 55 CLR 499
Inge v The Queen (1999)199 CLR 295
Keane v R [2011] VSCA 156
Lacey v Attorney General (Qld) (2011) 242 CLR 573
Lowe v The Queen (1984) 154 CLR 606
Muldrock v The Queen (2011) 244 CLR 120
Munda v Western Australia [2013] HCA 38
Power v The Queen (1974) 131 CLR 623
R v Bullen [2005] VSCA 206
R v Casey & Wells (1986) 20 A Crim R 191
R v Chatfield [2012] ACTCA 32
R v Clarke [1996] 2 VR 501
R v Strestha (1991) 173 CLR 48
R v Tsiaris [1996] Vic Rep 26
R v TW (2011) 6 ACTLR 18

R v Verdens (2007) 16 VR 269

Romero v R [2011] VSCA 45
The Queen v CV [2013] ACTCA 22
University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481
Wong v R (2001) 207 CLR 584
Zreika v R [2012] NSWCCA 44

REASONS FOR DECISION

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:

  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…

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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;

3. A non-parole period of three years is fixed.

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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