BB v R

Case [2021] NSWCCA 283


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: BB v R [2021] NSWCCA 283
Hearing dates: 22 November 2021
Date of orders: 3 December 2021
Decision date: 03 December 2021
Before: Bathurst CJ at [1]
Wright J at [2]
Wilson J at [3]
Decision: 1. Leave to appeal granted.
2. Appeal dismissed.
Catchwords:

CRIME — appeal against sentence — multiple counts of indecent assault — applicant pleaded guilty to seven counts of indecently assaulting child under ten — additional offences taken into account — representative counts — nature of indecent assault offences considered — inherent sexual character of offence discussed - assaults committed over an extended period — applicant the father of the victim — relationship of trust — gravity lies in harm to child - complaint of manifest excess — sentence within judge’s discretion — no useful range established by reference to previous cases — appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Berryman v R [2017] NSWCCA 297

Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1

Chartres-Abbott v R [2021] NSWCCA 239

Davies v R [2019] NSWCCA 45 at [38]

EG v R [2015] NSWCCA 21

Elsaj v R [2017] NSWCCA 124

Glare v R [2015] NSWCCA 194

Harkin v R (1989) 38 A Crim R 296

Ibbotson (a pseudonym) v R [2020] NSWCCA 92

JMvR (2014) 246 A Crim R 528; [2014] NSWCCA 297

Mayall v R [2010] NSWCCA 37

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

PG v R (2017) 268 A Crim R 61; [2007] NSWCCA 179

R v BB [2020] NSWDC 737

R v Cahill [2015] NSWCCA 53

R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep)

R v O [2005] NSWCCA 327

R v Stoupe [2015] NSWCCA 175

R v Toohey [2019] NSWCCA 182

RC v R; R v RC [2020] NSWCCA 76

Scott v R [2020] NSWCCA 81

TL v R [2017] NSWCCA 308

Trevor Essex v R [2013] NSWCCA 11

Vaughan v R [2020] NSWCCA 3

Category:Principal judgment
Parties: BB (Applicant)
Crown (Respondent)
Representation:

Counsel:
P Strickland SC (Applicant)
E Balodis (Respondent)

Solicitors:
Nyman Gibson Miralis (Applicant)
Solicitors for Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2017/238004
Publication restriction: None. It is noted that s 578A of the Crimes Act 1900 (NSW) prohibits the publication of any material that might identify the victim
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:

[2020] NSWDC 737

Date of Decision:
20 November 2020
Before:
Mahony SC DCJ
File Number(s):
2017/238004

Judgment

  1. BATHURST CJ: I agree with Wilson J and with her Honour’s reasons.

  2. WRIGHT J: I agree with Wilson J.

  3. WILSON J: On 26 November 2020 the applicant, anonymised by the letters BB, was sentenced by his Honour Judge Mahony SC in the District Court sitting at Sydney for seven counts of indecently assaulting a child under 10 years, offences contrary…

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AGLC
BB v R [2021] NSWCCA 283
Case
[2021] NSWCCA 283
Decision Date

CaseChat Overview and Summary

In the case of BB v R, the applicant appealed against his sentence following a conviction for multiple counts of indecent assault against a child under ten years of age. The applicant, who was the father of the victim, had pleaded guilty to seven counts of indecently assaulting the child. The court had to consider the additional offences taken into account, the representative counts, and the nature of the indecent assault offences. The court needed to determine whether the sentence imposed was manifestly excessive given the inherent sexual character of the offence, the extended period over which the assaults were committed, and the relationship of trust between the applicant and the victim. The gravity of the harm to the child was also a significant factor in the consideration of the sentence.

The court addressed the question of whether the sentence was within the judge's discretion, noting that no useful range had been established by reference to previous cases. The court examined the principle that the gravity of the harm to the child should be the primary consideration in sentencing for indecent assault. It also considered the extended period over which the assaults were committed and the relationship of trust between the applicant and the victim. The court found that the sentence imposed by the judge was within the appropriate range and did not amount to a manifest excess. The appeal was dismissed as the sentence was deemed to be an appropriate reflection of the seriousness of the offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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