Bethune v R [2021] NSWCCA 115

Bethune v R [2021] NSWCCA 115

The appeal was allowed because the original sentence, whose undiscounted starting point was 6 years and 8 months, was grossly disproportionate to the objective and subjective circumstances. The offending was unplanned, haphazard, easily detected and reversed, involved no violence, and was near the bottom of the low range of objective seriousness. The applicant's childhood trauma, substance abuse and related criminal history reduced his moral culpability. A lesser sentence with a 50% non-parole period was warranted because of special circumstances and the need for rehabilitation.

Jurisdiction
Australia
Judgment Date
09 June 2021
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Decision on Leave, Appeal and Re Sentence
Outcome
Leave to appeal against sentence granted; appeal allowed; original sentence quashed; applicant re-sentenced and ordered to be released forthwith.
Legal Topics
['appeal Against Sentence' 'application for Leave to Appeal' 'manifest Excess' 'moral Culpability' 'objective Seriousness' 'childhood Trauma' 'special Circumstances' 'aggravated Break, Enter and Commit Serious Indictable Offence']
['criminal Law' 'sentencing' 'criminal Appeals'] ['appeal Against Sentence' 'application for Leave to Appeal' 'manifest Excess' 'moral Culpability' 'objective Seriousness' 'childhood Trauma' 'special Circumstances' 'aggravated Break, Enter and Commit Serious Indictable Offence']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Decision on Leave, Appeal and Re Sentence

Legal Issues

  1. 1 ["Whether the sentencing judge failed to make any assessment of the applicant's moral culpability." 'Whether the sentence imposed was manifestly excessive.' 'Whether, on re-sentence, special circumstances should be found and the statutory ratio adjusted.']

Ratio Decidendi

The appeal was allowed because the original sentence, whose undiscounted starting point was 6 years and 8 months, was grossly disproportionate to the objective and subjective circumstances. The offending was unplanned, haphazard, easily detected and reversed, involved no violence, and was near the bottom of the low range of objective seriousness. The applicant's childhood trauma, substance abuse and related criminal history reduced his moral culpability. A lesser sentence with a 50% non-parole period was warranted because of special circumstances and the need for rehabilitation.

Court Disposition

Leave to appeal against sentence granted; appeal allowed; original sentence quashed; applicant re-sentenced and ordered to be released forthwith.

Orders

  • ['Grant leave to appeal against sentence.' 'Allow the appeal.' "Quash the sentence imposed by Weber SC DCJ on 20 March 2020 and, in lieu thereof, impose a sentence of 3 years' imprisonment to commence on 11 May 2019 and expire on 10 May 2022, with a non-parole period of 18 months to expire on 10 November 2020."...