BJ v The Queen - [2018] NSWCCA 231

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: BJ v R [2018] NSWCCA 231
Hearing dates: 5 September 2018
Date of orders: 17 October 2018
Decision date: 17 October 2018
Before: Hoeben CJ at CL at [1];
McCallum J at [50];
Beech-Jones J at [51]
Decision:
(1) Leave to appeal against sentence allowed.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – causing grievous bodily harm when reckless as to causing actual bodily harm – very hot liquid poured on to six month old baby by offender – offender father of child – failure to provide adequate care to victim included on a Form 1 – errors in sentencing judgment requiring re-sentence of offender – no lesser sentence warranted in law – appeal against sentence dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 35(1), 35(2), 43A(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(2)(ea)
Cases Cited: Kentwell v The Queen [2014] HCA 37; 252 CLR 601
R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398
Category: Principal judgment
Parties: BJ – Applicant
Regina – Respondent Crown
Representation:
Counsel:
R Pontello – Applicant
F Veltro – Respondent Crown
Solicitors:
Gianna Doyle – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2013/357505
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

5 June 2017

Before:

Sutherland SC DCJ

File Number(s):

2013/357505

JUDGMENT

HOEBEN CJ at CL:

Offence and sentence

On 28 February 2017 the applicant pleaded guilty in the District Court to a single count of reckless grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 10 years and a standard non-parole period of 4 years.

When sentencing the applicant for that offence, the court took into account a further offence on a Form 1, being an offence of failure of person with parental responsibility to care for a child, contrary to s 43A(2) of the Crimes Act. That offence carries a maximum penalty of imprisonment for 5 years.
A sentence was imposed by his Honour Judge Sutherland SC after a Disputed Facts Hearing that commenced on 24 April 2017 and concluded on 27 April 2017. His Honour sentenced the applicant to imprisonment for 6 years with a non-parole period of 4 years. The sentence was ordered to commence on 4 June 2017 so that the applicant will be eligible for release to parole on 3 June 2021. The total sentence will expire on 3 June 2023.
The applicant seeks leave to appeal from that sentence on the following grounds:

Ground 1 – The sentencing judge erred as to the mental element of the offence

Ground 2 – The sentencing judge erred by taking into account, as an aggravating feature, that the offence was committed in the presence of a child

FACTUAL BACKGROUND

On Friday, 11 October 2013 the applicant was at home minding…

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 BJ v The Queen

Details

AGLC: BJ v The Queen [2018] NSWCCA 231
Case: [2018] NSWCCA 231
Decision Date: 17 October 2018

CaseChat Overview and Summary

BJ, the appellant, was convicted of causing grievous bodily harm to his six-month-old child, whom he fathered, by pouring very hot liquid on the child. The case was heard in the High Court of Australia, where BJ appealed against the sentence imposed by the lower court. The primary issue before the High Court was whether the sentence was manifestly excessive or inappropriate in light of the severity of the crime and the appellant's culpability.

The court had to consider whether the sentencing judge erred by not taking into account certain mitigating factors, and whether the sentence was inappropriate given the circumstances. The court found that there were errors in the sentencing judgment but concluded that these did not warrant a lesser sentence. The court also considered the appellant's failure to provide adequate care to the victim, as outlined in a Form 1, and the severity of the act. The court held that the sentence was not manifestly excessive and did not warrant interference by the court.

The High Court dismissed the appeal against sentence, finding that the sentence imposed by the lower court was appropriate in all the circumstances. The court did not find that any lesser sentence was warranted in law. The court affirmed the original sentence, upholding the lower court's decision.

Orders