Regina v Bennett [2014] NSWCCA 197

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Regina v Bennett [2014] NSWCCA 197 Hearing dates: 23 April 2014 Decision date: 29 September 2014 Before: Simpson J at [1] Hall J at [21] Harrison J at [106] Decision: (1) Crown appeal allowed; (2) Sentence imposed in the District Court quashed; (3) In lieu thereof the respondent be sentenced to imprisonment with a non-parole period of 3 years and 3 months commencing on 27 April 2013 and expiring on 26 July 2016, with a balance of term of 2 years and 6 months expiring on 26 January 2019. Catchwords: CRIMINAL LAW - Crown appeal against sentence - respondent convicted of one count of break and enter a dwelling house and commit a serious indictable offence in circumstances of aggravation - the sentencing judge erred in failing to find that the injury, emotional harm, loss or damage caused by the offence was substantial leading to the imposition of a sentence that was manifestly inadequate - the sentencing judge erred in failing to find as an aggravating factor that the offence was committed in the home of the victim - the sentencing judge erred in his classification of the objective seriousness of the offence - the sentencing judge erred in his approach to a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act - the sentence imposed by the sentencing judge was manifestly inadequate - Crown appeal allowed - sentence quashed and respondent re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Clarke v R [2009] NSWCCA 49 Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Kelly v R (2004) 218 CLR 216 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 Portolesi v R [2012] NSWCCA 157 R v Fahda [2013] NSWCCA 86 R v O'Donoghue (2005) 151 A Crim R 597; [2005] NSWCCA 62 R v Palijan [2012] NSWCCA 142 R v Price [2005] NSWCCA 285 R v Youkhana [2004] NSWCCA 412 Regina v Solomon [2005] NSWCCA 158; (2005) 153 A Crim R 32 Republic of Turkey v Mackie Pty Ltd [2012] VSC 309 Texts Cited: DC Pearce & RS Geddes in Statutory Interpretation in Australia, 7th ed, 2011 Category: Principal judgment Parties: Regina (Crown) Rodney James Bennett (Respondent) Representation: Counsel: V Lydiard (Crown) M Johnston (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Respondent) File Number(s): 2012/358716 Decision under appeal Date of Decision: 2013-10-11 00:00:00 Before: Hoy DCJ File Number(s): 2012/358716