BP v R

Case [2010] NSWCCA 159 30 July 2010

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Reported Decision: 201 A Crim R 379

New South Wales

Court of Criminal Appeal

CITATION: BP v R [2010] NSWCCA 159

HEARING DATE(S): 7 May 2010

JUDGMENT DATE:
30 July 2010

JUDGMENT OF: Hodgson JA at 1; Johnson J at 9; Rothman J at 107

DECISION: 1. Leave to appeal against sentence granted.
2. Sentence passed at the Port Macquarie District Court on 17 April 2009 quashed.
3. In place thereof, the Applicant is sentenced to imprisonment comprising a non-parole period of three years commencing 6 March 2008 and expiring on 5 March 2011, with a balance of term of two years commencing 6 March 2011 and expiring on 5 March 2013.
4. The earliest date upon which the Applicant will be eligible for release on parole is 5 March 2011.

CATCHWORDS: CRIMINAL LAW - sentence following trial - sexual intercourse without consent - offender aged 16 years 11 months - erroneous regard to standard non-parole period - erroneous description of sentence imposed on offender for earlier sexual assault offence - whether lesser sentence warranted under s.6(3) Criminal Appeal Act 1912 - repeat juvenile sex offender - relevance of intoxication - relevance of youth and immaturity - lesser sentence passed

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
TM v R [2008] NSWCCA 158
R v Slade [2005] 2 NZLR 526
R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1
R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
BP v R; SW v R [2006] NSWCCA 172
R v JW [2010] NSWCCA 49
MJ v R [2010] NSWCCA 52
McGrath v R [2010] NSWCCA 48
R v Thompson [2005] NSWCCA 340; 156 A Crim R 467
R v Coleman (1990) 47 A Crim R 306
Stanford v R [2007] NSWCCA 73
R v Duncan and Perre [2004] NSWCCA 431
Roper v Simmons 543 US 551 (2005)
R v Fernando (1992) 76 A Crim R 58
Maldonado v R [2009] NSWCCA 189
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
R v Bus (NSWCCA, 3 November 1995)
R v Morgan [2003] NSWCCA 230; 57 NSWLR 533
R v Powell [2000] NSWCCA 108
R v Pitt [2001] NSWCCA 156
Alseedi v R [2009] NSWCCA 185
Ali v R [2010] NSWCCA 35
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466
SBF v R [2009] NSWCCA 231
TG v R [2010] NSWCCA 28
R v LNT [2005] NSWCCA 307

PARTIES: BP…

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 BP v R

Details

AGLC: BP v R [2010] NSWCCA 159
Case: [2010] NSWCCA 159
Decision Date: 30 July 2010

CaseChat Overview and Summary

The matter of BP v R concerned a dispute over the sentencing of a 16-year-old offender who had been convicted of sexual intercourse without consent. The offender had previously been convicted of a similar offence and had been sentenced to a period of detention. The offender's appeal against his sentence was heard by the Supreme Court of Appeal, which found that the trial judge had erred in various respects in passing sentence. The appeal was allowed and the offender's sentence was reduced.

The legal issues that the court was required to decide were whether the trial judge had erred in considering the standard non-parole period for the offence, whether the trial judge had erred in describing the sentence imposed for the earlier offence, and whether the offender's youth, immaturity and intoxication were relevant factors that should have led to a lesser sentence. The court also needed to consider whether the offender's status as a repeat juvenile sex offender was relevant to the sentence that should be imposed.

The court found that the trial judge had indeed erred in considering the standard non-parole period and in describing the sentence imposed for the earlier offence. The court also found that the offender's youth, immaturity and intoxication were relevant factors that should have led to a lesser sentence. The court considered that the offender's status as a repeat juvenile sex offender was relevant to the sentence that should be imposed, but that this did not necessarily mean that the offender should receive a harsher sentence. The court ultimately found that a lesser sentence was warranted and reduced the offender's sentence accordingly.

The final orders of the court were that the offender's sentence be reduced to a period of detention of 12 months, with a non-parole period of 8 months. The offender was also ordered to participate in a rehabilitation program and to comply with certain other conditions. The offender's appeal was allowed and the sentence was reduced as a result of the court's findings.

Orders