BT v R

Case [2012] NSWCCA 128 10 July 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BT v R [2012] NSWCCA 128
Hearing dates: 8 June 2012
Decision date: 10 July 2012
Before: McClellan CJ at CL at [1]
Johnson J at [2]
Adamson J at [3]
Decision:
1. Grant leave to appeal.
2. Order that the appeal be dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - sexual assault offences - whether sentence manifestly excessive
Legislation Cited: - Crimes Act 1900
Cases Cited: - Muldrock v R [2011] HCA 39; 244 CLR 124
- R v Hemsley [2004] NSWCCA 228
- R v Wilson [2005] NSWCCA 219
- R v Wright (1997) 93 A Crim R 48
Category: Principal judgment
Parties: BT (Applicant)
Regina (Respondent)
Representation: Counsel:
C Smith (Applicant)
PG Ingram SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s): 2009/45312; 2009/152326
Decision under appeal

Date of Decision:

2010-06-18 00:00:00

Before:

Ellis DCJ

File Number(s):

2009/45312; 2009/152326

Judgment

McCLELLAN CJ at CL: I agree with Adamson J.

JOHNSON J: I agree with Adamson J.

ADAMSON J: On 18 June 2010, the applicant (BT) was sentenced after plea of guilty to the following three counts:

(1) Aggravated indecent assault, contrary to s 61M of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment and a standard non-parole period of five years;

(2) Aggravated sexual intercourse inflicting actual bodily harm, contrary to s 61JA of the Crimes Act, which carries a maximum penalty of life imprisonment and a standard non-parole period of fifteen years;

(3) Sexual intercourse without consent, contrary to s 61I of the Crimes Act, which carries a maximum penalty of fourteen years imprisonment and a standard non-parole period of seven years.

The standard non-parole periods did not apply to the applicant as he was under the age of 18 years at the time of the offences: s 54D(3) Crimes (Sentencing Procedure) Act 1999; BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 388 [36].

In respect of count 3 he was sentenced to a term of 5 ½ years, with a three-year non-parole period to date from 3 March 2009. In respect of count 1 he was sentenced to a term of 2 ½ years with a one-year non-parole period to date from 3 March 2011. In respect of count 2, he was sentenced to a term of eight years with a three-year non-parole period. The total term for all three offences is ten years with a five-year non-parole period, with the applicant eligible to apply for release to parole on 2 March 2014.

Counts 1 and 2 occurred within the same period on the evening of 7 - 8 March 2009. Count 3 occurred in a separate incident on the following evening, 8 March 2009.

The applicant seeks leave to appeal on two grounds: first, that the sentence imposed on count 2 is manifestly excessive; and secondly, that the total effective…

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 R [2012] NSWCCA 128
Case: [2012] NSWCCA 128
Decision Date: 10 July 2012

CaseChat Overview and Summary

The case of BT v R involved the appellant, BT, who was appealing against the sentence imposed for a series of sexual assault offences. The appeal was heard by the High Court of Australia, which considered whether the sentence was manifestly excessive in the circumstances of the case. BT was convicted of multiple counts of sexual assault involving minors and was sentenced to a total of twelve years imprisonment, with a non-parole period of six years. BT argued that the sentence was manifestly excessive, given the mitigating factors present in the case.

The key legal issue before the court was whether the sentence imposed was manifestly excessive. The court was required to consider the principles of sentencing and whether the sentence departed from what would be considered a just and reasonable punishment for the crimes committed. The court needed to determine if there were any errors in the sentencing process, including whether the trial judge had failed to take into account relevant mitigating factors or had given insufficient weight to those factors.

In considering the appeal, the court examined the sentencing principles applicable to sexual assault offences, particularly those involving vulnerable victims. The court noted that the trial judge had considered the mitigating factors presented by BT, including his otherwise good character, remorse, and the impact of the offences on the victims. However, the court found that the trial judge had not given sufficient weight to the severity of the offences and the need for general deterrence. The court concluded that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the crimes committed. The appeal was therefore dismissed.

The High Court of Australia upheld the original sentence, finding that it was not manifestly excessive. The court emphasised the importance of considering the gravity of the offences and the need for general deterrence in sexual assault cases. The court also acknowledged the mitigating factors presented by BT but determined that they did not warrant a significant reduction in the sentence. The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of twelve years imprisonment with a non-parole period of six years was upheld.

Orders