R v Pettersen; R v Bendt; R v Fell - [2009] NSWCCA 91

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Pettersen; R v Bendt; R v Fell [2009] NSWCCA 91

FILE NUMBER(S):
2008/9771
2008/9774`
2008/9772

HEARING DATE(S):
9 March 2009

JUDGMENT DATE:
6 April 2009

PARTIES:
REGINA - Appellant
Neil Andrew PETTERSEN - Respondent
Gregory BENDT - Respondent
Christopher James FELL - Respondent

JUDGMENT OF:
Grove J Blanch J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/9771, 2008/9774, 2008/9772

LOWER COURT JUDICIAL OFFICER:
Ellis DCJ

LOWER COURT DATE OF DECISION:
22 September 2008

COUNSEL:
V Lydiard - Crown/Appellant
R Burgess - Respondent/Pettersen
J Trevallion - Respondent/Bendt
H Cox - Respondent/Fell

SOLICITORS:
Solicitor for Public Prosecutions - Appellant
Brenda Duchen - Respondent/Pettersen
Burwood Legal Aid Office - Respondent/Bendt
Steve O'Connor(Legal Aid) - Respondent/Fell

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sentence
Crown appeals asserting inadequacy
In the cases of two offenders judge makes specific reductions to qualify them for Drug Court programme
In so doing sentences lowered beneath range
Offenders not qualified for programme in any event
Restoration to assessed sentence before reduction
Third offender dealt with separately for offence which for erroneous cause not dealt with on Form 1
Adjustment not required
In particular circumstances Crown appeal dismissed

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Court Act 1998

CATEGORY:
Principal judgment

CASES CITED:
AG's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
Callaghan v R [2006] NSWCCA 58
Dinsdale v The Queen (2000) 202 CLR 321
English v R [2008] NSWCCA 134
R v Kaiva, unreported, NSWCCA 9 November 1998

TEXTS CITED:

DECISION:
Appeal dismissed (Pettersen)
Appeals allowed, respondents resentenced (Fell and Bendt)

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/9771
CCA 2008/9774
CCA 2008/9772
GROVE J
BLANCH J
PRICE J
6 April 2009

R v Neil Andrew PETTERSEN
R v Gregory BENDT
R v Christopher James FELL

Judgment

GROVE J: Before the Court are three appeals by the Crown asserting that sentences imposed on the respondents by Ellis DCJ at Parramatta District Court on 22 September 2008 were manifestly inadequate. The principal offence by each respondent was committed when he was involved in an incursion into the premises of the Gladesville Bowling and Sports Club (the Club) on 28 January 2008.
The respondents had pleaded guilty in the Local Court to charges which I will later detail and on committals for sentence the facts were put before the District Court by tender of the respective prosecution briefs.
At about 10.15 pm on 13 January 2008, a high performance Mitsubishi Lancer vehicle was stolen at Drummoyne from the owner in circumstances commonly referred to as carjacking. The respondents are not charged with any offence in connection with this occurrence, however, at about 10.20 pm on 28 January 2008 the respondent Pettersen drove that vehicle to the club with four passengers, the other two respondents and men named Adler and Hamouzian. At the time the vehicle was displaying false registration plates which…

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 Pettersen; R v Bendt; R v Fell

Details

AGLC: R v Pettersen; R v Bendt; R v Fell [2009] NSWCCA 91
Case: [2009] NSWCCA 91
Decision Date: 6 April 2009

CaseChat Overview and Summary

The Crown has appealed against the sentences handed down to three offenders by a magistrate in the Local Court. The appellant argued that the sentences were inadequate and that the court had erred in its assessment of the appropriate punishment. The respondents were convicted of various offences, including possession of a dangerous drug, dangerous driving, and possession of a prohibited weapon.

The court was required to determine whether the sentences imposed were appropriate and whether the magistrate had correctly applied the relevant principles in sentencing. Specifically, the court needed to consider whether the sentences were within the correct range and whether the magistrate had erred in reducing the sentences to qualify the respondents for the Drug Court programme. The Crown argued that the sentences were inadequate and that the court had erred in reducing the sentences to such an extent that the respondents did not qualify for the programme.

The court found that the magistrate had not erred in reducing the sentences to qualify the respondents for the Drug Court programme. However, the court noted that the respondents were not qualified for the programme in any event. The court also found that the magistrate had not erred in dealing with the third respondent separately for an offence that was not dealt with on Form 1. The court concluded that the sentences imposed were appropriate and dismissed the Crown's appeal. The court restored the sentences to their assessed level before the reduction and made no further adjustments.

Orders