Benitez v R [2006] NSWCCA 21

Benitez v R [2006] NSWCCA 21

The sentencing judge erred by treating the applicant's depression as irrelevant to sentence unless it was causative of the offences, thereby unduly confining the sentencing discretion. The depression should have been considered as a mitigating sentencing factor, although its effect was limited because the applicant acted with knowledge of what he was doing and of the gravity of his actions. The finding that the offences exceeded the mid-range of objective seriousness was open. Leave to appeal was granted, the appeal allowed, and the applicant was re-sentenced.

Jurisdiction
Australia
Judgment Date
23 February 2006
Procedural Posture
Application for Leave to Appeal Against Sentences for Two Counts of Soliciting to Murder / Court of Criminal Appeal Review of Sentences Imposed in the District Court After Pleas of Guilty
Outcome
Leave to appeal granted; appeal allowed; District Court sentences quashed; applicant re-sentenced on each count to imprisonment with a non-parole period of five and a half years and a balance of term of four and a half years.
Legal Topics
['soliciting to Murder' 'pleas of Guilty' 'standard Non Parole Period' 'mental Disorder and Sentencing' 'objective Seriousness' 'special Circumstances' 'prospects of Rehabilitation' 'general Deterrence']
['criminal Law' 'sentencing' 'criminal Appeals'] ['soliciting to Murder' 'pleas of Guilty' 'standard Non Parole Period' 'mental Disorder and Sentencing' 'objective Seriousness' 'special Circumstances' 'prospects of Rehabilitation' 'general Deterrence']

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Procedural Posture

Application for Leave to Appeal Against Sentences for Two Counts of Soliciting to Murder / Court of Criminal Appeal Review of Sentences Imposed in the District Court After Pleas of Guilty

Legal Issues

  1. 1 ["Whether the sentencing judge made an error concerning the relationship between the applicant's mental condition and the commission of the offences." 'Whether the sentencing judge erred in finding that the offences were above the mid-range of objective seriousness.' 'What sentences should be imposed if sentencing error was established.']

Ratio Decidendi

The sentencing judge erred by treating the applicant's depression as irrelevant to sentence unless it was causative of the offences, thereby unduly confining the sentencing discretion. The depression should have been considered as a mitigating sentencing factor, although its effect was limited because the applicant acted with knowledge of what he was doing and of the gravity of his actions. The finding that the offences exceeded the mid-range of objective seriousness was open. Leave to appeal was granted, the appeal allowed, and the applicant was re-sentenced.

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentences quashed; applicant re-sentenced on each count to imprisonment with a non-parole period of five and a half years and a balance of term of four and a half years.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed, each sentence imposed in the District Court quashed; in lieu thereof:' '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...