BB v R

Case [2017] NSWCCA 189 11 August 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: BB v R [2017] NSWCCA 189
Hearing dates: 26 July 2017
Date of orders: 11 August 2017
Decision date: 11 August 2017
Before: Bathurst CJ at [1]
McCallum J at [2]
Bellew J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Appeal – Sentence – Accumulation – Totality – Whether degree of accumulation of sentences was inadequate
CRIMINAL LAW – Appeal – Sentence – Where applicant pleaded guilty to break and enter and commit a serious indictable offence in circumstances of aggravation – Where applicant indecently assaulted fifteen year old girl who was asleep in her own home – Where applicant’s criminal history included an instance of similar offending – Applicant sentenced to a non-parole period of four years imprisonment and an additional term of three years imprisonment – Whether sentence manifestly excessive – Use of sentencing statistics – Where Court asked to compare the sentence with those imposed in two other cases of what were said to be like offending – Sentence not manifestly excessive in all the circumstances
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Andrews v R [2011] NSWCCA 24
House v The King (1936) 55 CLR 499; [1936] HCA 40
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MLP v R [2014] NSWCCA 183
Pannowitz v R [2016] NSWCCA 13
RLS v R [2012] NSWCCA 236
Smith v R [2013] NSWCCA 209
Category: Principal judgment
Parties: BB – Applicant
Regina – Respondent
Representation:
Counsel:
I McLachlan – Applicant
H Roberts - Respondent
Solicitors:
Watsons Solicitors – Applicant
C Hyland Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2015/178895
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

17 February 2016

Before:

Toner SC DCJ

Judgment

BATHURST CJ: I have read the judgment of Bellew J in draft. I agree with the orders his Honour proposes and with his reasons.
McCALLUM J: I agree with Bellew J.
BELLEW J:
Introduction
BB (“the applicant”) pleaded guilty before the Local Court to an offence contrary to s. 112(2) of the Crimes Act 1900 (NSW) in the following terms:

That he did on 17 June 2015, at Tuncurry in the State of NSW, break and enter the dwelling house of the victim and then in the said dwelling house did commit a serious indictable offence to wit, indecent assault in circumstances of aggravation, to wit, knowing the person was there within.

The applicant adhered to that plea of guilty when he appeared before the District Court for sentence. On 17 February 2016, his Honour Judge Toner SC sentenced the applicant to a non-parole period of 4 years imprisonment, with an additional term of 3 years.
The applicant now seeks leave to appeal against that sentence on the grounds more fully set out below.

The facts of the offending

Commencing at ROS 1,…

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 [2017] NSWCCA 189
Case: [2017] NSWCCA 189
Decision Date: 11 August 2017

CaseChat Overview and Summary

The applicant, BB, appealed against his sentence imposed by the County Court following a guilty plea to breaking and entering and committing a serious indictable offence in circumstances of aggravation. The offending involved the applicant indecently assaulting a fifteen-year-old girl who was asleep in her own home. This was not the first instance of similar offending for the applicant, who had a prior criminal history. The County Court sentenced BB to a non-parole period of four years imprisonment and an additional term of three years imprisonment. BB argued that the sentence was manifestly excessive and failed to properly account for the totality of the circumstances.

The appeal court was required to consider whether the degree of accumulation of sentences was inadequate and whether the sentence imposed was manifestly excessive. The court was also tasked with determining whether the use of sentencing statistics to compare the sentence with those imposed in other cases of similar offending was appropriate and whether the sentence was excessive in all the circumstances.

The court held that the sentence was not manifestly excessive. It noted that the County Court had considered the totality of the circumstances, including the gravity of the offending, the circumstances in which it was committed, and the applicant's prior criminal history. The court found that the sentence reflected the seriousness of the offence and the need for general deterrence. The court also held that the use of sentencing statistics was not an inappropriate method for comparing the sentence with those imposed in other cases of similar offending. The court was satisfied that the sentence was appropriate in all the circumstances.

No further orders were made by the court.

Orders