BJT v R - [2011] NSWCCA 12

Court of Criminal Appeal

New South Wales

Case Title: BJT v R

Medium Neutral Citation: [2011] NSWCCA 12

Hearing Date(s): 2 February 2011

Decision Date: 02 February 2011

Jurisdiction:

Before:
Beazley JA at 1
Hulme J at 2
Harrison J at 3

Decision:
1. Grant leave to appeal and allow the appeal.
2. Confirm the sentences imposed by his Honour Finnane DCJ on 23 October 2009, but order that the sentences commence on 10 September 2008 in lieu of 16 December 2008.
3. The applicant will be eligible for parole on 10 September 2011.

Catchwords:
CRIMINAL LAW - sentence appeal - relevant factors - whether sentence ought to have been backdated to take account of quasi-custodial sentence served in residential rehabilitation - appeal allowed - sentence backdated to reflect time spent in quasi-custody

Legislation Cited:
Crimes Act 1900

Cases Cited:
Hughes v Regina [2008] NSWCCA 48; (2008) 185 A Crim R 155
Reed v Regina [2007] NSWCCA 4
Regina v Delaney [2003] NSWCCA 342; (2003) 59 NSWLR 1
R v Marschall [2002] NSWCCA 197; (2002) 129 A Crim R 381

Texts Cited:

Category: Principal judgment

Parties:
BJT (Applicant)
Regina (Respondent)

Representation

- Counsel:
Counsel:
D Barrow (Applicant)
J Dwyer (Respondent)

- Solicitors:
Solicitors:
S E O'Connor, Solicitor for Legal Aid Commission (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File number(s): 2008/20004

Decision Under Appeal

- Court / Tribunal:

- Before: Finnane DCJ

- Date of Decision:

- Citation:

- Court File Number(s) 2008/11/1535

Publication Restriction:

Judgment

BEAZLEY JA: I agree with Harrison J.

HULME J: I also agree.

HARRISON J: The applicant pleaded guilty on 9 December 2008 in the Children's Court to the following offences:

1. Robbery with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 .

2. Inflicting actual bodily harm with intent to have sexual intercourse contrary to s 61K(a) of the Crimes Act 1900 .

Each offence carries a maximum penalty of 20 years imprisonment. Each offence was committed against the same victim who was 19 years of age at the time. The applicant appeared for sentence before his Honour Finnane DCJ at the District Court at Sydney on 23 October 2008. The sentences imposed upon the applicant were as follows:

1. For the s 97(1) offence an overall sentence of 4 years imprisonment with a non-parole period of 2 years.

2. For the s 61K(a) offence a sentence of 6 years with a non-parole period of 3 years.

Both sentences commenced on 16 December 2008. His Honour took into account two charges of common assault and one count of malicious damage on a Form 1. The applicant is eligible for release on parole on 15 December 2011.

The applicant seeks leave to appeal against the severity of the sentences imposed upon a single ground to which I shall shortly refer. The Crown does not oppose the grant of leave to appeal and concedes that, subject to the view of this Court, the sentence imposed by the sentencing…

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 BJT v R

Details

AGLC: BJT v R [2011] NSWCCA 12
Case: [2011] NSWCCA 12
Decision Date: 02 February 2011

CaseChat Overview and Summary

The case of BJT versus the Crown involved a sentence appeal, where the appellant challenged the sentencing decision of the lower court. The appellant, BJT, was convicted of a criminal offence and sentenced to a term of imprisonment, but also received an order for a quasi-custody sentence to be served in a residential rehabilitation facility. The issue in the appeal was whether the sentence imposed should have been backdated to account for the time spent in the quasi-custody rehabilitation program.

The court was required to determine whether the sentence should be adjusted to reflect the time BJT had already served in the quasi-custodial environment. The appeal hinged on whether the quasi-custodial sentence could be considered as part of the total sentence, thereby necessitating a backdating of the custodial sentence to include the rehabilitation period. This involved an interpretation of the relevant sentencing legislation and case law regarding the treatment of quasi-custodial sentences in relation to the overall sentence structure.

In examining the matter, the court noted that the quasi-custodial sentence was intended to serve a similar purpose to the custodial sentence, albeit with a rehabilitative focus. The court found that the appellant had effectively served a custodial sentence during the time spent in the rehabilitation program. Consequently, the court concluded that the sentence should indeed be backdated to account for the time spent in quasi-custody. This decision aligned with the overarching objective of ensuring that the sentence reflected the actual period of deprivation of liberty, thus the appeal was allowed and the sentence was backdated accordingly.

Orders