BM v R

Case [2023] NSWCCA 68 27 March 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BM v R [2023] NSWCCA 68
Hearing dates: 8 February 2023
Date of orders: 27 March 2023
Decision date: 27 March 2023
Before: Mitchelmore JA at [1]
Walton J at [2]
Adams J at [71]
Decision:
(1) Leave to appeal granted.
(2) The appeal is dismissed.

Catchwords:
CRIME – sentence appeal – three counts of sexual intercourse with a child – aggregate sentence of 7 years’ imprisonment with a non-parole period of 4 years and 3 months – finding of special circumstances – whether sentencing judge erred in the assessment of objective seriousness – whether sentence manifestly excessive – leave to appeal granted - appeal dismissed

Legislation Cited:
Criminal Appeal Act 2012 (NSW)
Crimes Act 1900(NSW), ss 61D(1), 66A
Crimes (Sentencing Procedure) Act 1999 (NSW)
Sentencing Procedure Act ss 3A, 5, 21A, 25AA, 25D(2)(b)(i)

Cases Cited:
Bektasovski v R [2022] NSWCCA 246
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ja v R [2021] NSWCCA 10
Mammone v R [2013] NSWCCA 95
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mills v R [2017] NSWCCA 87
Mulato v R [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pizzimenti v R [2017] NSWCCA 231
R v Ferguson [2022] NSWCCA 147
RC v R; R v RC [2020] NSWCCA 76
Saddler v R (2009) 194 A Crim R 452; [2009] NSWCCA 83
TM v The Queen [2018] NSWCCA 88
Towse v R [2022] NSWCCA 252
Vuni v R [2006] NSWCCA 171
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: BM (Applicant)
Regina (Crown)
Representation:
Counsel:
H White (Applicant)
E Wilkins SC (Crown)
Solicitors:
H & H Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2020/45828
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

23 August 2021

Before:

O’Brien AM J

File Number(s):

2020/0045828

HEADNOTE

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

BM (“the applicant”) pleaded guilty to one count of sexual intercourse with a child under 16 years contrary to s 61D(1) of the Crimes Act 1900 (NSW) (“Crimes Act”) and two counts of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act (“the offences”). The offences were committed between 25 October 1984 and 31 March 1990. On 23 August 2021 the applicant was sentenced by O’Brien AM DCJ to an aggregate sentence of 7 years’ imprisonment with a non-parole period of 4 years and 3 months. By way of two Form 1s, the sentence took into account two additional offences of sexual intercourse with a child contrary to ss 61D(1)…

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 BM v R

Details

AGLC: BM v R [2023] NSWCCA 68
Case: [2023] NSWCCA 68
Decision Date: 27 March 2023

CaseChat Overview and Summary

In this matter, the appellant, BM, was convicted of three counts of sexual intercourse with a child and was sentenced to an aggregate term of imprisonment of 7 years with a non-parole period of 4 years and 3 months. The case was appealed to the Court of Appeal, where the appellant argued that the sentence imposed was manifestly excessive and that the sentencing judge had erred in assessing the objective seriousness of the offending. The Crown opposed the appeal, arguing that the sentence was appropriate given the gravity of the crimes.

The key legal issues before the Court of Appeal were whether the sentencing judge had erred in assessing the objective seriousness of the offending and whether the sentence imposed was manifestly excessive. The Court of Appeal considered the principles of sentencing in relation to sexual offences against children, the relevant statutory provisions, and the particular circumstances of the case. The Court also considered the appellant’s personal circumstances, including his background and the likelihood of rehabilitation.

The Court of Appeal found that the sentencing judge had not erred in assessing the objective seriousness of the offending. The Court considered the nature and circumstances of the offences, the vulnerability of the victim, and the impact of the offending on the victim. The Court also considered the appellant’s personal circumstances and the need for general and specific deterrence. The Court held that the sentence imposed was not manifestly excessive and that the sentencing judge had appropriately balanced the various factors in reaching his decision. The appeal was therefore dismissed.

The Court of Appeal upheld the sentence imposed by the primary judge, finding that it was not manifestly excessive and that the sentencing judge had not erred in assessing the objective seriousness of the offending. The appeal was dismissed, and the original sentence was confirmed.

Orders