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BAP v The King

BAP v The King

Case [2024] NSWCCA 206 8 November 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BAP v R [2024] NSWCCA 206
Hearing dates: 11 October 2024
Date of orders: 8 November 2024
Decision date: 08 November 2024
Before: Wright J at [1];
Cavanagh J at [2];
Yehia J at [3]
Decision:
(1) The time for bringing the appeal is extended under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(2)   Grant leave to appeal.
(3)   Uphold the appeal.
(4)   Quash the sentence imposed by the District Court on 25 July 2023.
(5)   Impose an aggregate term of imprisonment of 7 years and 6 months commencing on 22 February 2022 and expiring on 21 August 2029 with a non-parole period of 4 years and 6 months to expire on 21 August 2026.
(6)   The applicant is first eligible for release to parole on 21 August 2026.

Catchwords:
CRIME – Sentence Appeal – sexual touching and sexual intercourse with a child – plea of guilty at District Court “super call-over” – whether the sentencing judge should have found that the applicant facilitated the administration of justice – where s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not raised before the sentencing judge – failure by the sentencing judge to consider the principles relevant to sentencing youth – complex interplay between youth, mental illness and cognitive impairment – error established – applicant re-sentenced

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17
Crimes Act 1900 (NSW), ss 66A(1), 66DA(a), 66DB(a), 61M(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A, 25D, 25F, 32
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), s 2
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases Cited:
Aiga v R [2024] NSWCCA 175
Aslan v R [2014] NSWCCA 114
Baden v R [2020] NSWCCA 23
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
Buxton v R [2017] NSWCCA 169
Camilleri v R [2023] NSWCCA 106
Charara v DPP (2001) 120 A Crim R 255; [2001] NSWCA 140
DB v The King [2023] NSWCCA 323
Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
Eldridge v R; Mackay v R [2015] NSWCCA 127
House v The King (1936) 55 CLR 499; [1936] HCA 40
JA v R [2021] NSWCCA 10
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khudadadi v R [2021] NSWCCA 259
LS v R [2020] NSWCCA 120
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Paterson v R [2021] NSWCCA 273
R v AN [2005] NSWCCA 239
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Elliott and Blessington [2006] NSWCCA 305
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Smith (2000) 114 A Crim R 8; [2000] NSWCCA 140
R v SS(a pseudonym) [2022] NSWCCA 258
R v Stephens [2024] NSWCCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BAP v The King

Details

AGLC: BAP v The King [2024] NSWCCA 206
Case: [2024] NSWCCA 206
Decision Date: 08 November 2024

CaseChat Overview and Summary

The applicant, BAP, appealed against a sentence imposed by the District Court for committing sexual offences against a child. The District Court found BAP guilty of sexual touching and sexual intercourse with a child and sentenced him to a period of imprisonment. The appeal to the NSW Court of Criminal Appeal focused on whether the sentencing judge should have found that BAP facilitated the administration of justice and whether the judge had adequately considered the relevant sentencing principles, particularly those pertaining to youth, mental illness, and cognitive impairment.

The court considered whether the sentencing judge should have found that BAP facilitated the administration of justice. The applicant argued that the judge failed to consider the principles relevant to sentencing youth, which was a significant factor in the case. The court noted that section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which addresses the sentencing of young offenders, was not raised before the sentencing judge. The court found that the failure to consider this section constituted an error and that the sentencing process was not properly aligned with the legislative requirements designed to protect and rehabilitate young offenders.

In light of the established error, the court ordered a re-sentencing of the applicant. The Court of Criminal Appeal directed that the sentencing judge must now consider the principles relevant to sentencing youth, including the impact of mental illness and cognitive impairment, in accordance with the legislative framework. The court emphasised the importance of ensuring that the sentencing process for young offenders adheres to statutory requirements and takes into account the unique circumstances of the individual.

Orders