BG v R

Case [2020] NSWCCA 295 11 November 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BG v R [2020] NSWCCA 295
Hearing dates: 3 June 2020
Date of orders: 11 November 2020
Decision date: 11 November 2020
Before: Simpson AJA at [1];
Bellew J at [2];
Wilson J at [28]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal against sentence is allowed.
(3)   The sentence imposed in the District Court of NSW is quashed.
(4)   In lieu thereof, the applicant is sentenced to imprisonment for 8 years and 6 months to commence on 15 December 2018 and to expire on 14 June 2027 with a non-parole period of 5 years and 7 months’ imprisonment, to commence on 15 December 2018 and to expire on 14 July 2024.

Catchwords:
CRIME – SENTENCE – child sexual assault offences – offences committed by step-father against step-son – applicant of former good character – single ground of appeal – whether there was error in treatment of evidence of good character

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Hoskins v R [2016] NSWCCA 157
Hudson v R [2016] NSWCCA 278
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29
R v Kennedy [2000] NSWCCA 527
R v MacLeod [2013] NSWCCA 108
R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Thomas [2007] NSWCCA 269
R v Van Ryn [2016] NSWCCA 1
R v Wheeler [2000] NSWCCA 34
Rotner v R [2011] NSWCCA 207
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Simkhada v R [2010] NSWCCA 284
Taylor v R [2018] NSWCCA 255
Taylor v R [2020] NSWCCA 46
TP v R [2018] NSWCCA 140
Tuncbilek v R [2020] NSWCCA 30
Weininger v R (2003) 212 CLR 629; [2003] HCA 14

Category: Principal judgment
Parties: BG (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Barrow (Applicant)
D Patch (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/85705
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 June 2019

Before:

Williams SC DCJ

File Number(s):

2018/085705

Judgment

SIMPSON AJA: I agree with Bellew J.
BELLEW J: I have had the advantage of reading, in draft, the judgment of Wilson J.
I gratefully adopt her Honour’s summary of the circumstances of the offending, and the relevant aspects of the reasons of the sentencing judge. I also agree that it is necessary to bear firmly in mind, for the reasons her Honour has articulated, that the sentencing remarks were delivered ex-tempore, immediately after hearing submissions in a busy regional District Court list. This Court has consistently accepted that sentencing judges in the…

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 BG v R

Details

AGLC: BG v The Queen [2020] NSWCCA 295
Case: [2020] NSWCCA 295
Decision Date: 11 November 2020

CaseChat Overview and Summary

The appeal arose from a conviction and sentencing in the County Court for multiple offences of child sexual assault committed by the appellant against his step-son. The appellant, the accused in the primary proceedings, appealed against his sentence in the Supreme Court. The appeal was based on a single ground, contending that there was an error in the way the County Court treated evidence of the appellant's good character. The respondent, the Crown, defended the County Court's approach to sentencing.

The central issue before the court was whether the County Court erred in its treatment of the evidence of the appellant's good character. The court needed to determine whether the County Court had correctly considered and appropriately weighed the evidence of the appellant's good character against the seriousness of the offences. The appellant argued that the County Court had not sufficiently acknowledged his prior good character, which should have resulted in a more lenient sentence.

The court examined the sentencing judgment and the evidence of good character presented. It considered the gravity of the offences, which involved the appellant abusing his position of trust as a step-father to commit serious sexual offences against his step-son. The court found that the County Court had given proper consideration to the evidence of good character but had also appropriately balanced this against the heinous nature of the crimes. The court concluded that there was no error in the County Court's approach to sentencing, and the appeal was dismissed.

No further orders were made by the court beyond dismissing the appeal. The appellant's sentence, as determined by the County Court, stood affirmed.

Orders