BT v R

Case [2019] NSWCCA 147 5 July 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: BT v R [2019] NSWCCA 147
Hearing dates: 1 April 2019
Date of orders: 05 July 2019
Decision date: 05 July 2019
Before: Bathurst CJ at [1]
Ierace J at [2]
Hidden AJ at [3]
Decision:
Leave to appeal granted, appeal dismissed.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – sexual intercourse with a child under 10 years (and related offences) – whether the sentencing judge properly had regard to the applicant’s deprived background – whether special circumstances should have been found – whether sentence unreasonable or plainly unjust
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
Cases Cited: Beale v R (2015) NSWCCA 120
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jones v R [2012] NSWCCA 262
Kertai v R [2013] NSWCCA 252
Morton v R [2018] NSWCCA 84
Newman v R [2018] NSWCCA 208
Perkins v R [2018] NSWCCA 62
Prince v R [2013] NSWCCA 274
R v Fernando (1992) 76 A Crim R 58
R v ND [2016] NSAWCCA 103
R v Scavera [2016] NSWCCA 145
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
RR v R [2011] NSWCCA 235
SW v R [2013] NSWCCA 255
Category: Principal judgment
Parties: BT (Applicant)
Regina (Crown)
Representation:
Counsel:
S Kluss (Applicant)
K Ratcliffe (Crown)
Solicitors:
Ross Hill & Associates (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/190470
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

23 March 2018

Before:

Colefax SC DCJ

File Number(s):

2016/190470

Judgment

BATHURST CJ: I agree with the orders proposed by Hidden AJ and with his Honour’s reasons.
IERACE J: I agree with the orders proposed by Hidden AJ and with his Honour’s reasons.
HIDDEN AJ: The applicant pleaded guilty in the District Court to the following charges:

committing an act of indecency towards a child under the age of 10 years, an offence under s 61O(2) of the Crimes Act 1900 (NSW), carrying a maximum sentence of 7 years imprisonment;

sexual intercourse with a child under the age of 10 years, an offence under s 66A(1) of the Crimes Act, carrying a maximum sentence of imprisonment for life and a standard non-parole period of 15 years.

His Honour also took into account on a form 1 an offence of indecent assault on a child under the age of 16 years, an offence under s 61M(2) of the Crimes Act, carrying a maximum sentence of 10 years imprisonment and a standard non-parole period of 8 years.

His Honour imposed concurrent sentences. On the first count…

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 BT v R

Details

AGLC: BT v The Queen [2019] NSWCCA 147
Case: [2019] NSWCCA 147
Decision Date: 05 July 2019

CaseChat Overview and Summary

The case involved a defendant, BT, who was convicted of multiple offences related to sexual intercourse with a child under 10 years of age. The dispute arose from BT’s application for leave to appeal against the sentence imposed by the sentencing judge. BT contended that the judge had not adequately considered his deprived background and that special circumstances should have been found, which could have led to a lesser sentence. The appeal was heard by the court which had to decide whether the sentencing judge had properly assessed BT’s background and whether special circumstances were applicable. The court was also required to determine if the sentence imposed was unreasonable or plainly unjust.

The court examined the sentencing principles and the role of a deprived background in the sentencing process. It noted that while a deprived background could be a mitigating factor, it does not automatically entitle an offender to a lesser sentence. The court considered whether the sentencing judge had appropriately weighed BT’s deprived background against the gravity of the offences committed. The court also assessed whether there were any special circumstances that warranted a reduced sentence, such as BT’s early guilty plea or his potential for rehabilitation. Ultimately, the court concluded that the sentencing judge had adequately considered BT’s background and that no special circumstances existed that would justify a lesser sentence.

The court found that the sentence imposed was neither unreasonable nor plainly unjust. The judge had correctly balanced the mitigating factors with the severity of the offences, ensuring that the sentence was proportionate and reflective of the harm caused. The court held that BT’s deprived background, while a relevant consideration, did not warrant a significantly reduced sentence given the nature of the crimes. Consequently, the application for leave to appeal against the sentence was dismissed, and the original sentence stood as appropriate and just.

Orders