BB v R

Case [2024] NSWCCA 13 19 February 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BB v R [2024] NSWCCA 13
Hearing dates: 1 February 2024
Date of orders: 19 February 2024
Decision date: 19 February 2024
Before: Davies J (at [1])
Huggett J (at [2])
R A Hulme AJ (at [3])
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed

Catchwords:
CRIME – Appeal against sentence – aggregate sentence - child sex offences – sentencing judge erred in finding that some counts were a “serious children’s indictable offence” within s 3 of the Children (Criminal Proceedings) Act 1987 – sentencing discretion unaffected by error –sentencing judge did not err in failing to take into account the lost opportunity of a different sentencing regime that would have been available had the applicant been prosecuted earlier - sentence not manifestly excessive.

Legislation Cited:
Children (Criminal Proceedings) Act 1987(NSW), ss 3, 33(1)(g), Pt 2, Div 4; Pt 3, Div 4
Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 66A, 66C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1)

Cases Cited:
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
BM v R [2019] NSWCCA 223
BP v R [2010] NSWCCA 51
BT v R [2012] NSWCCA 276
GP v R [2021] NSWCCA 180
Hornhardt v R [2017] NSWCCA 186
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Millwood v R [2012] NSWCCA 2
Newman v R [2019] NSWCCA 157
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
PD v R [2012] NSWCCA 242
R v AA [2017] NSWCCA 84
R v GDP (1991) 53 A Crim R 112
R v JDB [2005] NSWCCA 102; (2005) 153 A Crim R 164
R v RM [2015] NSWCCA 4
SHR v R [2014] NSWCCA 94
TC v R [2016] NSWCCA 3
Young v R [2022] NSWCCA 111; (2022) 298 A Crim R 468
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: BB (Applicant)
Rex (Crown)
Representation:
Counsel:
N Broadbent and M Davies (Applicant)
J Styles (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2021/186463
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 August 2022

Before:

DCJ Grant

File Number(s):

2021/186463

HEADNOTE

[This headnote is not part of the judgment]

Leave to appeal was sought in respect of an aggregate sentence of 5 years’ imprisonment, with a non-parole period of 3 years, which was imposed for eight offences contrary to the Crimes Act 1900 (NSW) which were committed when the applicant was aged under 18: one of sexual intercourse with a child aged under 10 years, one of sexual intercourse with a child aged 10-13 years, four of sexual intercourse without consent in circumstances of aggravation with a person aged under 16 years and two of indecent assault upon a…

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 BB v R

Details

AGLC: BB v R [2024] NSWCCA 13
Case: [2024] NSWCCA 13
Decision Date: 19 February 2024

CaseChat Overview and Summary

In the matter of BB versus the Crown, the applicant appealed against the sentence imposed for multiple child sex offences. The dispute centred on the classification of certain counts as serious children's indictable offences and the impact of a perceived error on the aggregate sentence. The Court of Appeal reviewed the case to determine if the sentencing judge erred in the classification of the offences and if the sentence was manifestly excessive.

The court was required to decide whether the sentencing judge's classification of some counts as serious children's indictable offences was correct and if this error impacted the overall sentencing discretion. Additionally, the court had to assess whether the sentencing judge's failure to consider a different sentencing regime that might have applied if the applicant had been prosecuted earlier constituted an error and if this failure affected the sentence's fairness.

The Court of Appeal found that the sentencing judge had erred in classifying some counts as serious children's indictable offences under section 3 of the Children (Criminal Proceedings) Act 1987. However, the court held that this error did not impact the sentencing discretion. The court also determined that the sentencing judge did not err in failing to consider a different sentencing regime that might have applied had the applicant been prosecuted earlier. The court concluded that the sentence was not manifestly excessive, affirming the original sentence imposed by the sentencing judge.

Orders