Regina v Andrew - [2002] NSWSC 489

CITATION: REGINA v. ANDREW [2002] NSWSC 489

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC No. 70041 of 2001

HEARING DATE(S): 02/10/2001; 06/03/2002; 04/04/2002; 24/05/2002; 27/05/2002; 31/05/2002

JUDGMENT DATE: 31 May 2002

PARTIES :

REGINA v.
ANDREW, Benjamin Bruce

JUDGMENT OF: Greg James J at 1

COUNSEL : Crown: P. Barrett
Off: P. Bodor, QC./G. Bashir

SOLICITORS: Crown: S.E. O'Connor
Off: D.J. Humphreys

CATCHWORDS: Criminal law - plea of guilty - sentencing - assault occasioning actual bodily harm - offender acquitted of murder and manslaughter - application of principle in Regina v. De Simoni - aged offence - consideration of sentencing regime at time of offence - circumstances of extenuation - applicability of s.10 of the Crimes (Sentencing Procedure) Act 1999.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: De Simoni (1981) 147 CLR 383
MVR [2002] NSWCCA 129

DECISION: Order the charge of be dismissed under s.10 of the Crimes (Sentencing Procedure) Act 1999.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

GREG JAMES, J.

FRIDAY 31 MAY 2002

No. 70041 of 2001

REGINA v. BENJAMIN BRUCE ANDREW

SENTENCE

1 HIS HONOUR: The offender has pleaded guilty in this Court to one count of assault occasioning actual bodily harm. That offence is punishable by a maximum sentence of imprisonment of five years. The essential facts are not in contest.

2 The offence was committed on 19 May 1990 when the offender was then aged 16 and was a boarding school student. Shortly prior to that date the deceased, a teacher had, as far as I can ascertain from the agreed facts and the material provided on the plea, using alcoholic liquor, seduced the offender into homosexual acts and infected the offender with a venereal disease.

3 Disturbed about that infection and the deceased’s acts with him the offender had complained to his best friend. The two of them went to the deceased’s premises. The offender had prior to doing so discussed with his friend that he might hit the deceased with a small baseball bat that they took with them to the premises.

4 However, on arrival at the premises he did not do that. He sought to speak to the deceased who was a teacher and an older man, concerning his feelings about what had occurred. He was under considerable distress. The deceased did not wish to talk to him but instead suggested they watch a video. The offender understandably, having regard to what had occurred on the previous occasion, conceived the idea that the video was likely to be a pornographic video and that he might be the subject of a further homosexual approach.

5 In a mixed emotional state involving on his part some degree of fear, some degree of anger, some degree of frustration, he struck the deceased to the head with the baseball bat splitting his scalp and causing some bruising. He also struck the deceased a couple of times to the back. The evidence does not permit me to conclude that the…

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 Regina v Andrew

Details

AGLC: Regina v Andrew [2002] NSWSC 489
Case: [2002] NSWSC 489
Decision Date: 31 May 2002

CaseChat Overview and Summary

Regina v Andrew was a case that came before the relevant court where the defendant, Andrew, was facing sentencing following a plea of guilty to the charge of assault occasioning actual bodily harm. Andrew had previously been acquitted of the more serious charges of murder and manslaughter. The court was required to determine the appropriate sentence in light of these circumstances. A central issue was the application of the principle outlined in Regina v. De Simoni, which addresses the sentencing of aged offences, and the consideration of the sentencing regime that was in effect at the time the offence was committed. The court also needed to consider whether there were any circumstances of extenuation and whether section 10 of the Crimes (Sentencing Procedure) Act 1999 was applicable.

The court examined the principle from Regina v. De Simoni, which provides that the sentencing regime in effect at the time of the offence should be applied, unless to do so would be inappropriate in the circumstances of the case. In this instance, the court considered the sentencing regime applicable at the time of the offence and the circumstances surrounding the offence. The court also assessed whether there were any factors of extenuation that warranted a departure from the sentencing regime of the time. The court found that while the offence was aged, the principle in Regina v. De Simoni did not compel the application of the historical sentencing regime, as the circumstances did not support such an application. The court considered the applicability of section 10 of the Crimes (Sentencing Procedure) Act 1999, which allows for a departure from the sentencing regime in place at the time of the offence if it is deemed unjust or inappropriate to do otherwise. The court found that the circumstances did not warrant such a departure.

The court concluded that, given the unique circumstances of the case, it was appropriate to apply the sentencing regime in effect at the time of sentencing rather than the regime that was in place when the offence was committed. The court took into account the principle in Regina v. De Simoni and found that the application of the historical sentencing regime would not be appropriate. The court also found that section 10 of the Crimes (Sentencing Procedure) Act 1999 did not apply, as the circumstances did not support a departure from the sentencing regime in effect at the time of sentencing. The court then proceeded to determine the appropriate sentence, considering all relevant factors, including the nature of the offence, the circumstances of extenuation, and the sentencing principles applicable at the time of sentencing. The final orders of the court were that Andrew be sentenced in accordance with the sentencing regime in effect at the time of sentencing, taking into account all relevant circumstances.

Orders