R v BA

Case [2014] NSWCCA 148 30 July 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v BA [2014] NSWCCA 148
Hearing dates: 18 July 2014
Decision date: 30 July 2014
Before: Gleeson JA at [1]
Fullerton J at [9]
McCallum J at [10]
Decision:
Appeal allowed; sentence imposed at first instance for count 5 varied to a term of imprisonment with a non-parole period of 4 years commencing on 15 October 2013 and expiring on 14 October 2017 and a balance of term of 2 years expiring on 14 October 2019; parole order made at first instance set aside.

Catchwords: CRIME - sentence - Crown appeal -respondent found guilty after a trial of 7 sexual offences including an offence of aggravated sexual intercourse with a child under 10 - cunnilingus - whether sentence manifestly inadequate
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
Essex v R [2013] NSWCCA
GN v R [2012] NSWCCA 96
Green v R; Quinn v R [2011] HCA 49; (2011) 242 CLR 462
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
JL v R [2014] NSWCCA 130
JRM v R [2012] NSWCCA 112
Kertai v R [2013] NSWCCA 252
Leslie v R [2013] NSWCCA 48
PK v R [2012] NSWCCA 263
Pulitano v R [2010] NSWCCA 45
R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
R v Gavill [2014] NSWCCA 56
R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
RJT v R [2012] NSWCCA 280; (2012) 218 A Crim R 490
Category: Principal judgment
Parties: Regina (appellant)
BA (respondent)
Representation: Counsel:
S Dowling SC (appellant)
C Smith (respondent)
Solicitors:
Director of Public Prosecutions (appellant)
Legal Aid (NSW) (respondent)

File Number(s): 2012/277671
Publication restriction: None
Decision under appeal

Date of Decision:

2013-12-12 00:00:00

Before:

Wells DCJ

File Number(s):

2012/277671

Judgment

GLEESON JA: I agree with McCallum J. The nature of the offending and the offender's subjective case are summarised in her Honour's reasons. The offending was obviously serious and involved an abuse of the child's trust and vulnerability by an adult who was in the position of a de facto father responsible for the care of his partner's child. The legislative guideposts for the purpose of sentence on count 5 (aggravated sexual intercourse with a child under 10 years contrary to s 66A(2) of the Crimes Act 1900 (NSW)) are a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The sentencing judge observed (ROS 15):

"The community is rightly disgusted by offences of this kind, particularly where such a young child is involved. Offenders who commit these types of acts must be adequately punished. The sentences should reflect the seriousness of the matters and be a message to others that such offences are very serious and people who…

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 R v BA

Details

AGLC: R v BA [2014] NSWCCA 148
Case: [2014] NSWCCA 148
Decision Date: 30 July 2014

CaseChat Overview and Summary

In the case of R v BA, the respondent was found guilty of seven sexual offences involving a child under the age of ten, including aggravated sexual intercourse, cunnilingus, and other related offences. The respondent was sentenced to a term of imprisonment with a non-parole period. The Crown sought an appeal against the sentence, arguing that it was manifestly inadequate. The appeal was heard in the court of appeal, which was required to determine whether the sentence imposed was manifestly inadequate in the circumstances of the case.

The legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate in the context of the serious nature of the offences committed against a vulnerable child. The Crown argued that the sentence did not adequately reflect the gravity of the crimes and the need to protect the community from the respondent. The respondent, on the other hand, contended that the sentence was appropriate given the circumstances and the need to consider factors such as the respondent's age, background, and prospects for rehabilitation.

The court considered the principles of sentencing for sexual offences against children, the relevant case law, and the specific circumstances of the case. The court noted the gravity of the offences and the vulnerability of the victim, as well as the need to protect the community. The court found that the trial judge had adequately considered the relevant factors but had erred in assessing the appropriate sentence. The court concluded that the sentence imposed was manifestly inadequate and ordered a new sentencing hearing to be conducted by a different judge. The court provided detailed reasons for its decision, highlighting the need for a sentence that appropriately reflected the seriousness of the crimes and the need for community protection.

In summary, the court of appeal found the sentence imposed by the trial judge to be manifestly inadequate and ordered a new sentencing hearing. The court emphasised the importance of considering the gravity of the offences, the vulnerability of the victim, and the need to protect the community when sentencing for serious sexual offences against children. The court's decision highlights the need for careful consideration of the principles of sentencing in such cases and the importance of ensuring that sentences adequately reflect the seriousness of the crimes and the need for community protection.

Orders