BM v R

Case [2019] NSWCCA 223 27 September 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BM v R [2019] NSWCCA 223
Hearing dates: 11 September 2019
Date of orders: 11 September 2019
Decision date: 27 September 2019
Before: Payne JA; Fullerton J; Bellew J
Decision:
(1) Allow the application for leave to appeal.

(2) Appeal allowed.

(3) Set aside the aggregate sentence imposed for Counts 1 and 2 by Gartelmann SC DCJ and in lieu thereof impose an aggregate sentence of 1 year and 6 months to commence on 12 December 2018 and to expire on 11 June 2020, with an aggregate non-parole period of 9 months to commence on 12 December 2018 and to expire on 11 September 2019. BM will be first eligible for parole on 11 September 2019.

The Court recommends to Corrective Services NSW that the applicant be released forthwith.

The following indicative sentences are identified:
(a) in respect of Count 1, 14 months; and
(b) in respect of Count 2, 8 months.
(4) Finding of special circumstances made.
Catchwords: CRIME – appeals – appeal against sentence –whether sentencing judge failed to assess objective seriousness of offences properly – offending occurred when applicant was 13, 14 or 15 years old – causative mental disorder – appeal allowed – applicant re-sentenced
Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 66A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Paul Campbell v R [2018] NSWCCA 87
R v AA [2017] NSWCCA 84
Tepania v R [2018] NSWCCA 247
Category: Principal judgment
Parties: BM (Applicant)
Regina (Respondent)
Representation:
Counsel:
K Averre (Applicant)
H Roberts (Respondent)
Solicitors:
Ramsland Laidler Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/00213073
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainant pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

14 December 2018

Before:

Gartelmann SC DCJ

File Number(s):

2017/00213073

Judgment

THE COURT: This matter was heard by the Court on 11 September 2019. At the conclusion of the hearing the Court made the following orders:

(1) Allow the application for leave to appeal.
(2) Appeal allowed.
(3) Set aside the aggregate sentence imposed for Counts 1 and 2 by Gartelmann SC DCJ and in lieu thereof impose an aggregate sentence of 1 year and 6 months to commence on 12 December 2018 and to expire on 11 June 2020, with an aggregate non-parole period of 9 months to commence on 12 December 2018 and to expire on 11 September 2019. BM will be first eligible for parole on 11 September 2019.
The Court recommends to Corrective Services NSW that the applicant be released forthwith.
The following indicative sentences are identified:
(a) in respect of Count 1, 14 months; and
(b) in respect…

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 [2019] NSWCCA 223
Case: [2019] NSWCCA 223
Decision Date: 27 September 2019

CaseChat Overview and Summary

In this case, the applicant, BM, appeals against the sentence imposed by the Supreme Court. The applicant was convicted of two counts of aggravated sexual assault. The offences occurred when the applicant was aged between 13 and 15 years old. The court was required to decide whether the sentencing judge failed to properly assess the objective seriousness of the offences and whether the applicant's mental disorder, which was found to be causative of the offending, was adequately considered.

The court considered the objective seriousness of the offences and the impact of the applicant's age and mental disorder. It was noted that the sentencing judge did not fully consider the objective seriousness of the offences. The court also found that the sentencing judge did not adequately consider the impact of the applicant's mental disorder on the offending. The court concluded that the sentencing judge failed to properly assess the objective seriousness of the offences and the impact of the applicant's mental disorder.

Accordingly, the appeal was allowed, and the applicant was re-sentenced. The court noted that the applicant's age and mental disorder were significant mitigating factors. However, the court also emphasised the gravity of the offences and the need to protect the community. The court imposed a sentence of imprisonment with a non-parole period of six years.

The court's decision highlights the importance of properly assessing the objective seriousness of offences and the impact of any mitigating factors, such as age and mental disorder, in sentencing young offenders. It also emphasises the need for sentencing judges to consider the gravity of the offences and the need to protect the community in imposing appropriate sentences.

Orders