Regina v Bennett [2014] NSWCCA 197

Regina v Bennett [2014] NSWCCA 197

By majority, the sentencing judge erred in failing to treat the commission of the offence in the victim's home as an aggravating factor because that fact was not an element of the offence under s 112(2) Crimes Act 1900. The sentencing judge also erred in failing to find substantial emotional harm, in assessing the offence as lower range objective seriousness, and in imposing a non-parole period that gave insufficient effect to the standard non-parole period and was manifestly inadequate. The Crown appeal was allowed and the respondent was re-sentenced to a longer total term and non-parole period.

Jurisdiction
Australia
Judgment Date
29 September 2014
Procedural Posture
Crown Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentence Imposed in the District Court
Outcome
Crown appeal allowed; sentence imposed in the District Court quashed; respondent re-sentenced.
Legal Topics
['crown Appeal Against Sentence' 'break and Enter Dwelling House and Commit Serious Indictable Offence in Circumstances of Aggravation' 'aggravating Factors' 'objective Seriousness' 'special Circumstances' 'manifest Inadequacy']
['criminal Law' 'sentencing'] ['crown Appeal Against Sentence' 'break and Enter Dwelling House and Commit Serious Indictable Offence in Circumstances of Aggravation' 'aggravating Factors' 'objective Seriousness' 'special Circumstances' 'manifest Inadequacy']

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Procedural Posture

Crown Appeal Against Sentence / Court of Criminal Appeal Appeal From Sentence Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred in failing to find that the injury, emotional harm, loss or damage caused by the offence was substantial.' 'Whether the sentencing judge erred in failing to find as an aggravating factor that the offence was committed in the home of the victim.' 'Whether the sentencing judge erred in classifying the objective seriousness of the offence as lower range.' 'Whether the sentencing judge erred in the approach to special circumstances under s 44 Crimes (Sentencing Procedure) Act 1999.' 'Whether the sentence imposed was manifestly inadequate.']

Ratio Decidendi

By majority, the sentencing judge erred in failing to treat the commission of the offence in the victim's home as an aggravating factor because that fact was not an element of the offence under s 112(2) Crimes Act 1900. The sentencing judge also erred in failing to find substantial emotional harm, in assessing the offence as lower range objective seriousness, and in imposing a non-parole period that gave insufficient effect to the standard non-parole period and was manifestly inadequate. The Crown appeal was allowed and the respondent was re-sentenced to a longer total term and non-parole period.

Court Disposition

Crown appeal allowed; sentence imposed in the District Court quashed; respondent re-sentenced.

Orders

  • ['Crown appeal allowed.' 'Sentence imposed in the District Court quashed.' '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.']