BH v The Queen - [2016] NSWCCA 290

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BH v R [2016] NSWCCA 290
Hearing dates: 21 September 2016
Decision date: 07 December 2016
Before: Price J at [1]
Button J at [2]
Fagan J at [76]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – manslaughter – guilty plea – juvenile offender – whether sentencing judge sentenced applicant on basis of factual findings not open – question of motivation for offence – whether sentence was manifestly excessive – appeal dismissed
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 19(3)
Cases Cited: Clarke v R [2015] NSWCCA 232
Mulato v The Queen [2006] NSWCCA 282
Turnbull v Chief Executive of the Office of Environment and Heritage (2015) 213 LGERA 220; [2015] NSWCCA 278
Category: Principal judgment
Parties: BH (Applicant)
Regina (Respondent)
Representation:
Counsel:
E Ozen (Applicant)
E Balodis (Respondent)
Solicitors:
Legal Aid New South Wales (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2013/293105
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of the applicant is not to be published.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

13 March 2015

Before:

Baly SC DCJ

File Number(s):

2013/293105

Judgment

Price J: I agree with Button J.
Button J: On 13 March 2015, Judge Baly SC, sitting in the District Court of New South Wales at Sydney, sentenced the young man to whom I shall refer as the applicant for one count of manslaughter, on the basis that he had committed an unlawful and dangerous act. He had pleaded guilty to that offence in the Children’s Court at Parramatta on 21 November 2014, he having been born in June 1996.

Background to the application

There was no dispute that, on the evening of 26 September 2013, the applicant, then aged 17 years and 3 months, had inflicted a single fatal punch on Mr Phillip Thackray (the deceased) during an interaction between the two of them at Parramatta Mall. A significant part of the proceedings on sentence, however, was a dispute about the motivation on the part of the applicant for that punch. Her Honour’s adverse finding about the question of motivation forms the centrepiece of the application for leave to appeal brought before this Court.
Her Honour imposed a head sentence of imprisonment for 5 years and 3 months, with a non-parole period of 3 years and 11 months. A backdate was granted to 28 October 2013, which featured a small amount of concurrency with a separate short sentence that I shall detail later.
The sentence imposed by her Honour was founded upon a starting point of 7 years, to which an uncontroversial discount of 25% was applied for the utilitarian value of the early plea.
As can be seen, no finding of special circumstances was made that would have led to a variation of the statutory ratio between…

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 BH v The Queen

Details

AGLC: BH v The Queen [2016] NSWCCA 290
Case: [2016] NSWCCA 290
Decision Date: 07 December 2016

CaseChat Overview and Summary

In the High Court of Australia, the case of BH v The Queen involved a juvenile offender who had entered a guilty plea to a charge of manslaughter. The appellant, BH, was sentenced by the sentencing judge who determined that the offence was of a particularly serious nature, leading to a custodial sentence. BH appealed against the sentence, arguing that the sentencing judge erred in basing the sentence on factual findings that were not open to the judge and that the sentence was manifestly excessive.

The legal issues before the court included whether the sentencing judge had correctly identified the relevant factual findings and whether the sentence imposed was appropriate. The court considered the nature of the offence, the appellant's age and background, and the sentencing principles applicable to juvenile offenders. The court also examined whether the sentence was manifestly excessive in light of the circumstances of the case and the need to consider the appellant's age and potential for rehabilitation.

The High Court found that the sentencing judge had correctly identified the relevant factual findings and had properly considered the principles applicable to juvenile offenders. The court held that the sentence imposed was not manifestly excessive, taking into account the seriousness of the offence and the need for deterrence and rehabilitation. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of considering the individual circumstances of each case and the need to balance the interests of justice with the principles of sentencing juvenile offenders.

Orders