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8
Court of Criminal Appeal 29 September 2014

Regina v Bennett

[2014] NSWCCA 197

Also reported as (2014) 245 A Crim R 1
Assault & violenceTheft & property
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE CROWN APPEAL ALLOWED SENTENCE QUASHED AND RESPONDENT RE SENTENCED

Citation: Regina v Bennett [2014] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 29 September 2014
Judges: Simpson J, Hall J, Harrison J

Background

The respondent was convicted in the District Court of one count of breaking and entering a dwelling house and committing a serious indictable offence in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900 (NSW). The relevant circumstance of aggravation was that he knew persons were present inside the dwelling at the time. The offence was committed at the victim's home in Orange in November 2012.

At sentencing in October 2013, Judge Hoy imposed a total head sentence of 5 years with a non-parole period of 2 years, representing 40 per cent of the head sentence. The Crown appealed, contending the sentence was manifestly inadequate on several grounds.

The appeal raised questions about how the sentencing judge assessed objective seriousness, whether certain statutory aggravating factors were correctly applied, and whether the departure from the standard ratio between head sentence and non-parole period was excessive.

  • Whether the sentencing judge erred in failing to find that the injury, emotional harm, loss or damage caused by the offence was substantial
  • Whether the sentencing judge erred in failing to treat the fact that the offence was committed in the victim's home as an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge incorrectly assessed the objective seriousness of the offence as below mid-range
  • Whether the non-parole period, at 40 per cent of the head sentence, was manifestly inadequate
  • Whether special circumstances were properly found and the statutory ratio between head sentence and non-parole period properly varied under s 44 of the Crimes (Sentencing Procedure) Act

Decision

The Court allowed the Crown appeal, though the three judges differed on some grounds. Simpson and Harrison JJ together formed the majority on the contested issues, with Hall J dissenting on grounds 2 and 4.

On the question of whether the victim's home was an element of the offence (ground 2), Simpson J (with Harrison J agreeing) held that it was not. The offence under s 112(2) requires only a break and entry into "any dwelling-house or other building," a category broad enough to include unoccupied premises and buildings other than the victim's residence. The fact that the indictment specified the building as the victim's home was a particular of the offence, not an element of it. Accordingly, the sentencing judge should have treated this as an aggravating factor under s 21A(2)(eb). Hall J had reached the opposite conclusion on this point.

All judges agreed that the objective seriousness of the offence had been assessed too leniently, and that the non-parole period of 2 years was manifestly inadequate given the substantial gravity of the offence and the need for specific and general deterrence. Simpson J noted that the non-parole period was not only 40 per cent of the head sentence, but also 40 per cent of the standard non-parole period, to which the court was obliged to have regard as a legislative guidepost under Muldrock v The Queen.

The majority declined to exercise the residual discretion to dismiss the appeal despite evidence of the respondent's rehabilitative progress in custody, finding the sentencing errors too significant to overlook. Simpson J (with Harrison J) imposed a total term of 5 years and 9 months, with a non-parole period of 3 years and 3 months (approximately 56.5 per cent of the head sentence). Hall J would have retained the 5-year head sentence but increased the non-parole period to 2 years and 9 months (50 per cent of the head sentence).

Orders Made

The orders of the majority (Simpson and Harrison JJ) were:

  • Crown appeal allowed
  • Sentence imposed in the District Court quashed
  • Respondent re-sentenced to imprisonment with a non-parole period of 3 years and 3 months commencing 27 April 2013 and expiring 26 July 2016, with a balance of term of 2 years and 6 months expiring 26 January 2019

Key Takeaways

  • Under s 112(2) of the Crimes Act 1900, the elements of the offence do not include a requirement that the building broken into be the victim's home. The specification of the victim's home in an indictment is a particular, not an element, and therefore does not preclude the aggravating factor in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act from applying.
  • A non-parole period can be manifestly inadequate even where the head sentence is not. The Court of Criminal Appeal found the 5-year head sentence acceptable but the 2-year non-parole period inadequate on its own.
  • Where a court departs from the statutory ratio between head sentence and non-parole period on the basis of special circumstances, it must still have sufficient regard to the standard non-parole period as a legislative guidepost, consistent with Muldrock v The Queen.
  • Evidence of an offender's genuine rehabilitative progress in custody is a relevant consideration in the exercise of the residual discretion to decline to interfere with a sentence on Crown appeal, though it will not necessarily prevail where the sentencing errors are substantial.
  • Disagreement among appellate judges on individual grounds does not prevent the appeal succeeding overall. Here, Simpson and Harrison JJ formed a majority on the contested grounds, and the orders of those two judges prevailed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Crimes Act 1900 (NSW), ss 4, 105A, 112
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Green v The Queen [2011] HCA 49; 244 CLR 462
- Kelly v R (2004) 218 CLR 216
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Clarke v R [2009] NSWCCA 49
- R v Fahda [2013] NSWCCA 86
- R v O'Donoghue (2005) 151 A Crim R 597; [2005] NSWCCA 62
- Regina v Solomon [2005] NSWCCA 158; (2005) 153 A Crim R 32
- R v Palijan [2012] NSWCCA 142
- Portolesi v R [2012] NSWCCA 157
- R v Price [2005] NSWCCA 285
- R v Youkhana [2004] NSWCCA 412
- Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628