BR v R

Case [2015] NSWCCA 255 18 September 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: BR v R [2015] NSWCCA 255
Hearing dates: 18 May 2015
Decision date: 18 September 2015
Before: Bathurst CJ at [1]; Simpson J at [2]; R A Hulme J at [69]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords:
APPEAL - sentencing - 41 sexual offences against Crimes Act 1900 (NSW), ss 61M(2), 61N(1), 61O(1), 61O(2), 61O(2A), 66A(2), 66C(1), 66C(2), 66EB(3), 91G(1)(a), 91H(2) - whether manifest excess of indicative sentences - whether aggregate sentence manifestly excessive - whether trial judge’s allowance of 25 per cent discount for plea of guilty indicates acceptance of remorse - reduction allowed for utilitarian value of plea - offender engaged in extremely serious course of conduct - no manifest excess in either indicative sentences or aggregate sentence
APPEAL - sentencing - whether non-parole period imposed reflects finding of special circumstances under s 44(2) Crimes (Sentencing and Procedure) Act 1999 (NSW) - special circumstances adequately reflected in reduction in non-parole period - leave to appeal granted, appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, Pt 4 Div 1A, ss 44(2), 53A
Crimes Act 1900 (NSW), ss 61M(2), s 61N(1), 61O(1), 61O(2), 61O(2A), 66A(2), 66C(1), 66C(2), 66EB(3), 91G(1)(a), 91H(2)
Cases Cited: R v Booth [2009] NSWCCA 89
R v De Leeuw [2015] NSWCCA 183
R v Porte [2015] NSWCCA 174
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category: Principal judgment
Parties: BR (Applicant)
Regina (Respondent)
Representation:
Counsel:
R Keller (Applicant)
K McKay (Respondent)
Solicitors:
Grays Legal (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/150376
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainants (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

14 March 2014

Before:

English DCJ

File Number(s):

2012/150376

Judgment

BATHURST CJ: I agree with the orders proposed by Simpson J and with her Honour’s reasons.
SIMPSON J: On 14 March 2014 the applicant was sentenced by Judge English in the District Court after entering pleas of guilty to a series of charges, the majority of which were of sexual offences against young female children. Those charges that were not of offences against children involved, in one form or another, child abuse material.
English DCJ sentenced the applicant under the provisions of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”). She imposed an aggregate sentence of imprisonment for 23 years, with a non-parole period of 17 years, commencing on 2 February 2012. In accordance with s 53A(2)(b) she nominated the sentences she would have imposed in respect of each separate offence if sentencing individually.
A table showing the offences, the maximum penalties prescribed, the standard non-parole period prescribed by Pt 4 Div 1A of the Sentencing Procedure Act (where applicable) and…

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 [2015] NSWCCA 255
Case: [2015] NSWCCA 255
Decision Date: 18 September 2015

CaseChat Overview and Summary

The appeal heard by the court involved a respondent who had been convicted of numerous sexual offences, with the sentencing being the primary issue. The appellant contested the sentences imposed by the trial judge, arguing that there was a manifest excess in both the indicative sentences and the aggregate sentence. Additionally, the appellant questioned whether the trial judge's allowance of a 25 per cent discount for the plea of guilty indicated acceptance of the appellant's remorse. The appellant further argued that the non-parole period imposed did not adequately reflect the finding of special circumstances under the Crimes (Sentencing and Procedure) Act 1999 (NSW).

The court was required to determine whether the sentences imposed were manifestly excessive, both in terms of the individual indicative sentences and the aggregate sentence. The court also had to consider whether the trial judge's allowance of a discount for the plea of guilty indicated an acceptance of the appellant's remorse, and whether the non-parole period reflected the finding of special circumstances. The court examined the extremely serious nature of the appellant's conduct and the potential utilitarian value of the appellant's plea of guilty.

The court held that the appellant's course of conduct was extremely serious, and there was no manifest excess in either the indicative sentences or the aggregate sentence. The court noted that the discount allowed for the plea of guilty did not necessarily indicate acceptance of remorse, but rather recognised the utilitarian value of the plea. Furthermore, the court found that the reduction in the non-parole period adequately reflected the special circumstances. Consequently, the court dismissed the appeal.

No further orders were made by the court, as the appeal was dismissed. The court confirmed that the sentences imposed were appropriate and did not manifest an excess, considering the nature of the offences and the discount for the plea of guilty. The special circumstances were adequately reflected in the reduction of the non-parole period.

Orders