Benitez v R [2006] NSWCCA 21

Reported Decision : 160 A Crim R 166

New South Wales Court of Criminal Appeal

CITATION: Benitez v R [2006] NSWCCA 21

HEARING DATE(S): 9 February 2006

JUDGMENT DATE: 23 February 2006

JUDGMENT OF: Hunt AJA at 1; Simpson J at 2; Rothman J at 50

DECISION: (i) leave to appeal granted; (ii) appeal allowed, each sentence imposed in the District Court quashed; in lieu thereof; (iii) on each count the applicant be sentenced to imprisonment with a non-parole period of five and a half years, to commence on 27 June 2003 and expire on 26 December 2008, with a balance of term of four and a half years to commence on 27 December 2008 and to expire on 26 June 2013.

CATCHWORDS: application for leave to appeal against sentences - two counts of soliciting to murder - pleas of guilty - subjective circumstances - offences held to exceed mid-range of seriousness - prospects of rehabilitation - finding of special circumstances - relationship between the mental condition of the applicant and the commission of the offences - whether applicant's depression relevant to the sentencing process - objective seriousness of offences

LEGISLATION CITED: Crimes Act 1900, s26 Crimes (Sentencing Procedure) Act 1999, Part 4 Division 1A, s44, s21A(2), s54B

Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Champion (1992) 64 A Crim R 244 R v Engert (1995) 84 A Crim R 67 R v Fahda [1999] NSWCCA 267 CASES CITED: R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Letteri, unreported, NSWCCA, 18 March 1992 R v Scognamiglio (1991) 56 A Crim R 81 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Wright (1997) 93 A Crim R 48