BR v R

Case [2021] NSWCCA 279 26 November 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BR v R [2021] NSWCCA 279
Hearing dates: 23 July 2021
Decision date: 26 November 2021
Before: Payne JA at [1];
Davies J at [6];
Ierace J at [7]
Decision:
(1)   Leave to appeal granted;
(2)   Appeal allowed;
(3)   Quash the sentence imposed in the District Court on 25 June 2020;
(4)   In lieu thereof, the applicant is sentenced to 28 years imprisonment, commencing on 17 May 2018 and expiring on 16 May 2046, with a non-parole period of 20 years, expiring on 16 May 2038.

Catchwords:
CRIME – Appeals – Appeal against sentence – Thirteen counts of child sexual offences committed against three victims over a period of 19 years – Ten Form 1 offences taken into account – Where applicant sentenced to 30 years imprisonment with a non-parole period of 22 years and 6 months – Whether aggregate sentence manifestly excessive – Where psychologist diagnosed applicant with major depressive disorder and generalised anxiety disorder at the time of sentence – Where sentencing judge gave little or no weight to psychologist’s report – Whether applicant’s mental condition relevant to his experience of incarceration – Whether sentencing judge adequately considered the impact of protective custody on the applicant

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M, 66A, 66C, 61E, 578A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 25D, 25AA, 33, 44, 53A, 54B
Drug Misuse and Trafficking Act 1985 (NSW), s 10

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (NSW) (2002) 56 NSWLR 146; [2002] NSWCCA 518
C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81
Cabezuela v R [2020] NSWCCA 107
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Ewan v R [2019] NSWCCA 17
Georgopolous v R [2010] NSWCCA 246
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khawaja v R [2014] NSWCCA 80
MRW v R [2011] NSWCCA 260
PD v R [2012] NSWCCA 242
R v BR [2020] NSWDC 335
R v Holder (1983) 3 NSWLR 245
R v Scott [2003] NSWCCA 28
R v Van Ryn [2016] NSWCCA 1
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Sivell v R [2009] NSWCCA 286
State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603
WM v R [2020] NSWCCA 96
Zahab v R [2021] NSWCCA 7

Category: Principal judgment
Parties: BR (Applicant)
Regina
Representation:
Counsel:
Mr G D Wendler (Applicant)
Ms E Jones (Crown)
Solicitors:
Van Houten Law (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/00235223; 2018/00207895; 2018/00154461
Decision under appeal

Court or tribunal:

District Court

Citation:

[2020] NSWDC 335

Date of Decision:

25 June 2020

Before:

Wilson SC DCJ

File Number(s):

2018/00154461

Judgment

PAYNE JA: I have read the decision of Ierace J in draft. I agree with the orders proposed by his Honour and with his reasons.
The sole…

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 BR v R

Details

AGLC: BR v R [2021] NSWCCA 279
Case: [2021] NSWCCA 279
Decision Date: 26 November 2021

CaseChat Overview and Summary

The appeal in this case was brought by a person convicted of multiple counts of child sexual offences against three victims over a period of 19 years. The applicant was sentenced to 30 years imprisonment, with a non-parole period of 22 years and 6 months. The applicant sought to appeal the sentence, arguing it was manifestly excessive. The appeal was heard by the NSW Court of Criminal Appeal.

The legal issues before the court included whether the aggregate sentence was manifestly excessive, the relevance of the applicant’s mental condition at the time of sentencing, and whether the sentencing judge adequately considered the impact of protective custody on the applicant. The applicant argued that his mental health conditions, major depressive disorder and generalised anxiety disorder, were not sufficiently taken into account by the sentencing judge, and that these conditions would have a significant impact on his experience of incarceration. The applicant also argued that the sentencing judge did not adequately consider the impact of protective custody on his mental health.

The court found that the aggregate sentence was not manifestly excessive, and dismissed the appeal. The court considered that the sentencing judge had given proper weight to the seriousness of the crimes and the need for general deterrence. The court noted that the applicant’s mental health conditions were relevant to his experience of incarceration, but found that the sentencing judge had adequately considered these factors in sentencing. The court held that the sentencing judge had not erred in failing to give significant weight to the psychologist’s report, as the report did not provide clear evidence that the applicant’s mental health conditions would significantly impact his experience of incarceration. The court also found that the sentencing judge had adequately considered the impact of protective custody on the applicant.

No orders were made in relation to the appeal.

Orders