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Court of Criminal Appeal 30 November 2016

Benson v R

[2016] NSWCCA 267

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE NO ERROR SHOWN APPEAL DISMISSED

Citation: Benson v R [2016] NSWCCA 267
Court: Court of Criminal Appeal, NSW
Date: 30 November 2016
Judges: Hoeben CJ at CL; Payne JA; Button J

Background

The appellant was convicted of wounding with intent to cause grievous bodily harm under s 33(1)(b) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. The conviction arose from a stabbing incident involving the appellant and her former husband at the appellant's home. The appellant pleaded not guilty, with self-defence as the central issue at trial.

The two principals gave irreconcilable accounts of events. The former husband said he had offered to help with the swimming pool and was on his hands and knees at the pool's edge when he was stabbed without warning. The appellant's version was that she endured a sustained verbal and physical assault, retreated inside to retrieve a kitchen knife, and only stabbed him after he continued attacking her with an aluminium pool pole.

The jury found the appellant guilty. The sentencing judge in the District Court sentenced her to a non-parole period of 3 years, with a balance of term of 2 years and 6 months. The appellant sought leave to appeal against that sentence in the Court of Criminal Appeal, arguing the sentencing judge had made errors in her factual findings.

  • Whether the sentencing judge made errors of the kind described in House v The King (1936) 55 CLR 499 in resolving the competing factual accounts of the stabbing incident
  • Whether the sentencing judge gave insufficient weight to the appellant's good character when making factual findings

Decision

The Court of Criminal Appeal (Payne JA, with Hoeben CJ at CL and Button J agreeing) granted leave to appeal but dismissed the appeal. The court found that no House v The King error had been established. Such an error requires the appellant to demonstrate that the sentencing judge acted on a wrong principle, allowed irrelevant matters to guide the decision, mistook the facts, or failed to take a material consideration into account.

The sentencing judge had made detailed intermediate findings across multiple areas of evidence before reaching her ultimate conclusions. These included inconsistencies in the timeline derived from telephone records and a triple-0 call, which the judge found supported the former husband's account and not the appellant's. The 14-minute window between those two communications was found to be incompatible with the sequence of events the appellant described. The evidence of a neighbour, who heard only a male voice calling for help and observed the scene immediately after the stabbing, also supported the judge's findings.

The court addressed each ground raised by the appellant. The appellant's challenges to the judge's findings on the medical evidence and her own injuries were rejected: the sentencing judge had specifically considered both, and the appellant's bare assertions that different inferences were open did not amount to House v The King error. The court also noted that the appellant's explanations to her treating doctor contained details inconsistent with her account at trial, and the judge was entitled to find those explanations had been fabricated.

On the good character ground, the court found that the sentencing judge had specifically referred to the appellant's good character. The South Australian decision in R v Edwards was not read as imposing any additional obligation on sentencing judges in the fact-finding process beyond what the judge had already applied.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • No House v The King error arises simply because a sentencing judge prefers one party's account over another where two irreconcilable factual narratives are presented; the judge's role includes resolving such conflicts after hearing evidence and observing witnesses.
  • Asserting that a different inference was available from the evidence is not sufficient to establish appellable error under the House v The King framework.
  • Where independent contemporaneous evidence (such as telephone records and emergency call logs) is inconsistent with an appellant's account of events, a sentencing judge is entitled to treat that inconsistency as undermining the credibility of that account.
  • A sentencing judge's obligation to consider good character does not require any particular methodology in fact-finding beyond giving genuine attention to the matter, as confirmed by the Court of Criminal Appeal's rejection of the Edwards argument.
  • In dismissing the appeal, the court reaffirmed that the standard non-parole period of 7 years under the Crimes (Sentencing Procedure) Act 1999 (NSW) for this category of offence operates as a legislative reference point, with the sentence ultimately imposed reflecting the judge's careful fact-finding below that benchmark.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4, Division 1A

Cases:
- House v The King (1936) 55 CLR 499
- Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Edwards [2009] SASC 233