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
BATHURST CJ: I agree with Wilson J and with her Honour’s reasons.
WRIGHT J: I agree with Wilson J.
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…
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.
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Details
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.