Blackett v R - [2021] NSWCCA 210

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Blackett v R [2021] NSWCCA 210
Hearing dates: 4 August 2021
Date of orders: 3 September 2021
Decision date: 03 September 2021
Before: Basten JA at [1];
Adamson J at [64];
Campbell J at [65]
Decision:
(1)   Grant the applicant leave to appeal from the aggregate sentence imposed on him in the District Court on 2 October 2020.
(2)   Allow the appeal and set aside the sentence.
(3)   Resentence the applicant to a non-parole period of 3 years 3 months to date from 23 June 2020, with a balance of term of 1 year 9 months, giving an aggregate sentence of 5 years imprisonment.
(4)   The applicant will be eligible for release on parole on 22 September 2023.

Catchwords:
SENTENCING – appeal against sentence – sexual intercourse with a child aged 14-16 years – aggravated indecent assault – possess child abuse material – assessment of objective seriousness of offending – low range aggravated indecent assault a first offence – possession of three brief video clips – possession of cartoon images
SENTENCING – appeal against sentence – severity – manifest excess – relevant factors on sentence – objective seriousness – mitigating factors – autism spectrum disorder – developmental age of applicant

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M, 66C, 66EB, 91H
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44, 54B

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243
PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61

Texts Cited:
Diagnostic and Statistical Manual of Mental Disorders (5th ed)

Category: Principal judgment
Parties: Brendan James Blackett (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms J Paingakulam (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Swifte Law (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2018/335723; 2019/80370
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

2 October 2020

Before:

N Williams DCJ

File Number(s):

2018/335723; 2019/80370

Judgment

BASTEN JA: On 2 October 2020 the applicant, Brendan James Blackett, was sentenced by Judge N Williams in the District Court following his pleas of guilty to five sexual offences involving a single victim, and one offence of possessing child abuse material. The judge imposed a sentence of 6 years imprisonment, with a non-parole period of 3 years and 10 months. The sentence commenced on 23 June 2020, the applicant having been taken into custody at the conclusion of the sentencing hearing.
On 6 April 2021 an application for leave to appeal against sentence was filed, which identified two grounds of appeal. The first was that the sentencing judge erred in assessing the objective seriousness of two…

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 Blackett v R

Details

AGLC: Blackett v R [2021] NSWCCA 210
Case: [2021] NSWCCA 210
Decision Date: 03 September 2021

CaseChat Overview and Summary

In the matter of Blackett v R, the respondent appealed against the severity of his sentence. The respondent was convicted of two counts of aggravated indecent assault against a child aged between 14 and 16 years, and possession of child abuse material. The appeal was heard in the High Court of Australia. The court was required to determine whether the sentence imposed by the lower court was manifestly excessive and, if so, what should be done about it.

The appeal centred on the assessment of the objective seriousness of the offending, the mitigating factors present, and the relevance of these factors in sentencing. The court considered the low range of the offence as a first offence, the respondent's possession of three brief video clips and cartoon images, and the mitigating factors such as the respondent's autism spectrum disorder and developmental age. The court also considered the appropriate weight to be given to the objective seriousness of the offending and mitigating factors in determining the severity of the sentence.

The court held that the sentence imposed by the lower court was manifestly excessive, taking into account the relevant factors on sentence. The court found that the objective seriousness of the offending was low, and that the mitigating factors present were significant. The court noted that the respondent's autism spectrum disorder and developmental age were important considerations in assessing the severity of the sentence. The court also found that the sentence imposed by the lower court did not adequately reflect the low range of the offence as a first offence, and the respondent's possession of child abuse material.

The High Court allowed the appeal and remitted the matter to the lower court for re-sentencing. The court ordered that the lower court should have regard to the factors considered by the High Court in determining the appropriate sentence. The court also directed that the lower court should consider the appropriate weight to be given to the objective seriousness of the offending and mitigating factors in determining the severity of the sentence.

Orders