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Bisiker v The The Queen

Bisiker v The The Queen

Case [2022] NSWCCA 110 1 June 2022

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Bisiker v R [2022] NSWCCA 110
Hearing dates: 4 May 2022
Date of orders: 1 June 2022
Decision date: 01 June 2022
Before: Bell CJ at [1];
Kirk JA at [2];
Price J at [34]
Decision:
(1) Grant leave to appeal out of time.
(2) Appeal dismissed.

Catchwords:
APPEALS — Appeal against sentence — Severity — Whether sentence was manifestly excessive — Multiple offences — Accumulation, concurrency and totality — Where criminality involved in offences under the Child Protection (Offenders Registration) Act 2000 (NSW) is distinct from criminality of other offences

Legislation Cited:
Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
Crimes Act 1900 (NSW), s 91H(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Criminal Code (Cth), ss 474.19, 474.24A(1)

Cases Cited:
Berryman v R [2017] NSWCCA 297
Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
House v The King (1936) 55 CLR 499
Huggett v R [2021] NSWCCA 62
Lyons v R [2017] NSWCCA 204
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
RvXX (2009) 195 A Crim R 38; [2009] NSWCCA 115

Category: Principal judgment
Parties:
Arthur George Bisiker (Applicant)
Regina (Respondent)
Representation:
Counsel:

J Brock (Applicant)

A McGrath (Crown)

Solicitors:

Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2018/00142008
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

04 September 2020

Before:

Craigie SC DCJ

File Number(s):

2018/00142008

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to four offences, two under federal law and two under State law. Three of those offences related to the transmission or possession of child pornography. The other related to the applicant’s failure to comply with reporting conditions previously imposed on him pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW).

The cumulative total of the sentences imposed was 16 years and 3 months. The primary judge allowed for a significant degree of concurrency in the terms of imprisonment. As a result, the total effective head sentence was reduced to 6 years and 11 months. The effective non-parole period was set to be 4 years and 11 months.

The applicant complained that the total effective head sentence and non-parole period were manifestly excessive, because the principle of totality had been incorrectly applied in relation to the degree of concurrency provided for in the sentences imposed. There was no complaint about the reasoning of the primary judge. Rather, the Court was asked to infer the manifest excess from the final result.

The Court (per Kirk JA, Bell CJ and Price J agreeing) found that there was no appellable error in the exercise of the sentencing discretion.…

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 Bisiker v The The Queen

Details

AGLC: Bisiker v The The Queen [2022] NSWCCA 110
Case: [2022] NSWCCA 110
Decision Date: 01 June 2022

CaseChat Overview and Summary

The appellant, Mr Bisiker, was convicted of multiple offences, including offences under the Child Protection (Offenders Registration) Act 2000 (NSW). He appealed against the severity of his sentence, arguing it was manifestly excessive. The case was heard in the High Court of Australia, the highest appellate court in the country.

The court was required to determine whether the cumulative effect of the sentences for all the offences, considering their nature, gravity, and the principles of accumulation, concurrency, and totality, rendered the overall sentence manifestly excessive. The court had to balance the distinct criminality involved in the offences under the Child Protection Act with the criminality of the other offences. It also had to consider whether the sentence reflected the appropriate deterrence and denunciation values, as well as the principles of proportionality and justice.

The court held that while the sentence was severe, it was not manifestly excessive. It found that the sentences for the various offences were appropriate given their distinct natures and gravities. The court emphasised the importance of considering each offence individually, as well as the totality of the offending behaviour. The High Court found that the trial judge had appropriately applied the relevant principles in determining the sentence, taking into account all relevant factors. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court. The sentence imposed by the lower court remained in effect.

Orders