BG v The Queen - [2018] NSWCCA 161

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BG v R [2018] NSWCCA 161
Hearing dates: 8 June 2018
Date of orders: 03 August 2018
Decision date: 03 August 2018
Before: Simpson AJA at [1]
Bellew J at [2]
Wilson J at [84]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.
Catchwords:
CRIMINAL LAW – Sentence – Appeal – Asserted error in assessment of objective seriousness by the sentencing judge – Asserted error in assessing the discount to reflect the utilitarian value of the applicant’s plea of guilty – Whether applicant entitled to a discount to reflect assistance to the authorities - Whether sentence manifestly excessive – Whether sentencing judge erred in failing to find special circumstances – No error established
CRIMINAL LAW – Sentence – Appeal – Where applicant submitted that there had been a failure on the part of the sentencing judge to give proper weight to his subjective case – Observations as to the narrow circumstances in which such a failure will amount to error – Observations as to the difficulty in advancing such a submission and the necessity to establish a miscarriage of the sentencing discretion – No error established
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Caristo v R [2011] NSWCCA 7
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
House v R (1936) 55 CLR 449; [1936] HCA 40
King v R [2015] NSWCCA 99
Mulato v R [2006] NSWCCA 282
R v Baker [2000] NSWCCA 85
R v Cramp [2004] NSWCCA 264
R v El-Hayek [2004] NSWCCA 25; 144 A Crim R 90
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: BG – Applicant
Regina – Respondent
Representation:
Counsel:
J Eaton (Solicitor) – Applicant
E Balodis – Respondent
Solicitors:
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2014/31192; 2014/31287
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

4 April 2016

Before:

Her Honour Judge Wells SC

Judgment

SIMPSON AJA: I agree with Bellew J.
BELLEW J: On 1 April 2016 BG (“the applicant”) pleaded guilty before the District Court at Lismore to a number of offences, the details of which are as follows:

Count

Offence

Date of offending

Statutory provision

Maximum penalty

Standard non-parole period

1

Intentionally destroy property with intent to endanger life

6 October 2013

Crimes Act 1900 s 198

25 years imprisonment

No

2

Aggravated break, enter and steal in company

6 October 2013

Crimes Act 1900 s 112(2)

20 years imprisonment

5 years imprisonment

3

Aggravated enter with intent to steal in company

6 October 2013

Crimes Act 1900 s 111(2)

14 years imprisonment

No

4

Assault occasioning actual bodily harm in company

6 October 2013

Crimes Act 1900 s 59(2)

7 years imprisonment

No

5

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 The Queen

Details

AGLC: BG v The Queen [2018] NSWCCA 161
Case: [2018] NSWCCA 161
Decision Date: 03 August 2018

CaseChat Overview and Summary

The case of BG v The Queen involved an appeal by the applicant against his criminal sentence. The applicant contested the assessment of the objective seriousness of the offence, the discount for his plea of guilty, the availability of a discount for his assistance to authorities, the excessiveness of the sentence, and the failure to find special circumstances. The High Court of Australia was tasked with examining these issues.

The legal issues before the Court centred around the correctness of the sentencing judge's assessment of the various factors that influenced the applicant's sentence. The applicant argued that the sentencing judge had erred in the assessment of the objective seriousness, the discount for his guilty plea, and the potential for a discount for his assistance to authorities. Additionally, the applicant contended that the sentence was manifestly excessive and that the sentencing judge had failed to find special circumstances warranting a reduced sentence.

In examining the applicant's submissions, the Court found no error in the sentencing judge's assessment of the objective seriousness of the offence, the discount for the applicant's plea of guilty, or the failure to find special circumstances. The Court also noted that while the applicant had argued that the sentencing judge had failed to give proper weight to his subjective case, such a failure would only amount to an error in the narrowest of circumstances. The Court emphasised the difficulty in advancing such a submission and the necessity for the applicant to establish a miscarriage of the sentencing discretion. Consequently, the Court found no error in the sentence imposed by the sentencing judge.

The Court dismissed the appeal, affirming the original sentence imposed by the sentencing judge. The Court did not consider it necessary to make any further orders in light of its findings.

Orders