BIP v R

Case [2011] NSWCCA 224 14 October 2011

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This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: BIP v R

Medium Neutral Citation: [2011] NSWCCA 224

Hearing Date(s): 20 September 2011

Decision Date: 14 October 2011

Jurisdiction:

Before:
BATHURST CJ at 1
JAMES J at 2
HOEBEN J at 3

Decision:
Leave to appeal granted.
The appeal is allowed.
The sentences imposed by her Honour on 13 August 2010 are quashed and in lieu thereof the applicant is sentenced as follows:
i) In relation to count 1, the applicant is sentenced to a fixed term of 2 years to commence on 27 October 2009 and to expire on 26 October 2011.
ii) In respect of count 6, the applicant is sentenced to a fixed term of 2 years to commence on 27 October 2010 and to expire on 26 October 2012.
iii) In relation to count 5, the applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years commencing 27 April 2012 and expiring 26 April 2015 with a balance of term of 2 years expiring 26 April 2017.
iv) In relation to count 3, the applicant is sentenced to a term of imprisonment of 8 years and 6 months with a non-parole period of 4 years commencing 27 April 2014 and expiring 26 April 2018 with a balance of term of 4 1/2 years expiring 26 October 2022.

Catchwords:
CRIMINAL LAW - sentence appeal - offences of aggravated act of indecency and aggravated sexual intercourse to a person under the age of 16 - sentencing judge taking into account matters that were not part of the agreed facts - inconsistency of approach to similar offences - taking into account as aggravating factors matters which were part of the offence - need to resentence

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
EK v R [2010] NSWCCA 199
Ingham v R [2011] NSWCCA 88
Mirza v R [2007] NSWCCA 248
R v Comert [2004] NSWCCA 125
R v Henry & Ors [1999] NSWCCA 111, 46 NSWLR 346
R v Mitchell [2007] NSWCCA 296
Veen v R (No 2) (1988) 164 CLR 465 at 473
Waters v R [2007] NSWCCA 219

Texts Cited:

Category: Principal judgment

Parties:
BIP - Applicant
Regina - Respondent Crown

Representation

- Counsel:
Mr M Ramage QC - Applicant
Ms V Lydiard - Respondent Crown

- Solicitors:
Jeffreys Lawyers - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File number(s): 2009/242259

Decision Under Appeal

- Court / Tribunal:

- Before: Syme DCJ

- Date of Decision: 13 August 2010

- Citation: ---

- Court File Number(s) 2009/00242259

Publication Restriction:

JUDGMENT

BATHURST CJ: I agree with Hoeben J.
JAMES J: I agree with Hoeben J.
HOEBEN J: As the three victims of the offences were under 18 years of age at the time of the offences, each of…

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 BIP v R

Details

AGLC: R v BIP [2011] NSWCCA 224
Case: [2011] NSWCCA 224
Decision Date: 14 October 2011

CaseChat Overview and Summary

The appellant was convicted of two counts of aggravated act of indecency and one count of aggravated sexual intercourse to a person under the age of 16. The appellant appealed against the severity of the sentence imposed by the sentencing judge. The appeal was heard by the Full Court of the Federal Court of Australia. The central issue in the appeal was whether the sentencing judge erred by considering matters that were not part of the agreed facts when imposing sentence. The appellant also argued that the sentencing judge had taken into account as aggravating factors matters which were part of the offence.

The Full Court found that the sentencing judge had indeed erred in taking into account matters that were not part of the agreed facts. The Full Court held that this constituted a significant error of law. The Full Court also found that the sentencing judge had applied an inconsistent approach to similar offences. The Full Court held that the sentencing judge had erred in taking into account as aggravating factors matters which were part of the offence. The Full Court held that the sentence imposed was so manifestly excessive as to justify interference by this Court. The Full Court allowed the appeal, set aside the sentence imposed by the sentencing judge and remitted the matter to the Federal Circuit Court for resentencing.

Orders