R v BB

Case [2019] NSWDC 556 11 October 2019

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v BB [2019] NSWDC 556
Hearing dates: 1 August 2019, 20 September 2019, 11 October 2019
Date of orders: 11 October 2019
Decision date: 11 October 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The offender is sentenced to a term of imprisonment for a period of 8 years, commencing on 26 January 2017. There is a non-parole period of 5 years 6 months.

Catchwords: CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of aggravation;
SENTENCING — Aggravating factors — Substantial harm, injury, loss or damage — Victim impact statement;
SENTENCING —Timing of Plea of Guilty
SENTENCING — Relevant factors on sentence — Extra Curial Punishment
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
BP v R [2010] NSWCCA 159; (2010) A Crim R 379
El-Zeyat & others v R [2015] NSWCCA 196
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Khawaja v R [2014] NSWCCA 80
Markarian v The Queen [2005] HCA 25; 215 ALR 213
Millwood v R [2012] NSWCCA 2
R MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Borkowski (2009) 195 A Crim R 1
R v Clinch (1994) 72 A Crim R 301
R v DH; R v AH [2014] NSWCCA 326
R v De Simoni (1981) 147 CLR 383
R v Dib [2003] NSWCCA 117
R v Elkassir [2013] NSWCCA
R v Lambell [2019] NSWDC 78
R v Simpson (2001) 53 NSWLR 704
R v Stambolis [2006] NSWCCA 56
R v Thammavongsa [2015] NSWCCA 107
R v Thomson; R v Houlten (2000) 49 NSWLR 383
R v Wilhelm [2010] NSWSC 378
SHR v R [2014] NSWCCA 94
Yardley v Betts (1979) 1 A Crim R 329
Zhao v R [2016] NSWCCA 179
Category: Sentence
Parties: Regina (Crown)
BB (Offender)
Representation:
Counsel:
S Sloane (Crown)
T Quilter (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Blair Criminal Lawyers (Offender)

File Number(s): 2017/26189
Publication restriction: The name and any identifiers of the Offender are restricted from publication.

Judgment

INTRODUCTION

The offender has pleaded guilty to the following charge;

“On 25 January 2017, at Toongabie in the State of New South Wales, entered the dwelling house of Anita Christanga at XXXXX , with intent to commit a serious indicatable offence therein, namely larceny, in circumstances of aggravation, namely that he knew that there was a person present within, in circumstances of special aggravation, namely that he intentionally inflicted grievous bodily harm on Anita Christanga.”

The offence is contrary to s 111(3) of the Crimes Act 1900 and carries a maximum penalty of 20 years. There is no standard non-parole period. The maximum penalty is an important guidepost in the assessment of sentence. A judge should steer by the maximum penalty but not aim…

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 BB

Details

AGLC: R v BB [2019] NSWDC 556
Case: [2019] NSWDC 556
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the case of R v BB, the respondent, BB, was charged with breaking and entering and committing a serious indictable offence, namely stealing property, under Section 117(1)(a) of the Crimes Act 1900. The matter was heard in the District Court of New South Wales. BB pleaded guilty to the offence but the plea was entered after the trial had commenced, which the court considered an aggravating factor. BB’s actions caused significant harm, injury, and damage to the victim, as evidenced by the victim impact statement, which was also considered by the court. BB’s criminal history, which included prior convictions, was another factor the court took into account.

The court was required to determine the appropriate sentence for BB, considering the aggravating factors such as the timing of the plea and the substantial harm caused to the victim. The court also needed to weigh the extra-curial punishment already served by BB against the need for deterrence and rehabilitation. The court acknowledged the severity of the offence and the impact on the victim, but also considered BB’s guilty plea and the fact that the offence was not premeditated.

The court, in sentencing BB, emphasised the need to balance the interests of the community with the potential for rehabilitation. It found the circumstances of aggravation, including the late plea and the substantial harm caused, warranted a significant custodial sentence. However, the court also considered BB’s early guilty plea and the extra-curial punishment already served. Ultimately, the court sentenced BB to a term of imprisonment of eight years, with a non-parole period of five years and six months. This sentence reflects the seriousness of the offence, the harm caused, and the need for both punishment and rehabilitation.

Orders

Orders of the court

The offender is sentenced to a term of imprisonment for a period of 8 years, commencing on 26 January 2017. There is a non-parole period of 5 years 6 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v BB [2019] NSWDC 556

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Sharma [2025] NZHC 1052
Citation 1

…merely on the basis that the offender’s culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v. Sharma (2002) 54 NSWLR 300, distinguishing Cameron v. The Queen (2002) 76 ALJR 382. [5] If a plea is entered a long time after a person is first charged, but at a time when a lesse…
R v Lambell [2019] NSWDC 78
Citation 2 (Para 23)

…I invited the parties to consider what I had written in R v Lambell [2019] NSWDC 78 at [4]-[8]. On 17 September 2019 I received extensive, thorough and helpful submissions from Ms Sloane, Crown Prosecutor in response to what I had said in Lambell . She submitted that “the Crown submits that the plea was not entere…
Zhao v R [2016] NSWCCA 179
Citation 3 (Para 21)

…e discount for plea should fall at the lower end of that range. The Crown relied upon R v Borkowski (2009) 195 A Crim R 1 at [31]-[32] and Zhao v R [2016] NSWCCA 179 at [66].…
El-Zeyat v The Queen; Aouad v The Queen; Osman v The Queen [2015] NSWCCA 196
Citation 4 (Para 70)

…sentencing consideration but the weight (if any) to be accorded to the offender’s youth is a matter for the sentencing judge: El-Zeyat & others v R [2015] NSWCCA 196 at [68].…
Thammavongsa v R [2015] NSWCCA 107
Citation 5 (Para 69)

…ctors such as immaturity and age. However, youth may be a material factor in sentencing even a 19 year old for a most serious crime: R v Thammavongsa [2015] NSWCCA 107 at [90] and [96].…
R v DH; R v AH [2014] NSWCCA 326
Citation 6 (Para 73)

…terests of rehabilitation and the sentencing judge must balance the gravity of an offence against the progress towards rehabilitation: R v DH; R v AH [2014] NSWCCA 326 at [16]. There is a point which the seriousness of a crime by a young man is of such a nature that the principle must in the public interest give way…
Khawaja v R [2014] NSWCCA 80
Citation 7 (Para 98)

…There is no basis in the proposition that young offenders with serious drug problems should have balances on parole exceeding 2 years: Khawaja v R [2014] NSWCCA 80 at [28]-[29].…
SHR v R [2014] NSWCCA 94
Citation 8 (Para 72)

…unishment nor, in circumstances where young offenders conduct themselves as an adult, can it stand in the way of the need to protect society: SHR v R [2014] NSWCCA 94 at [47]-[48].…
R v Elkassir [2013] NSWCCA 181
Citation 9 (Para 73)

…t the principle must in the public interest give way and where the need for rehabilitation is diminished by the need to protect society: R v Elkassir [2013] NSWCCA 181 at [46].…
R v Millwood [2012] NSWCCA 2
Citation 10 (Para 80)

…Simpson J (as her Honour then was) made this point in Millwood v R [2012] NSWCCA 2 at [69] (Bathurst CJ and Adamson J agreeing):…
BP v R [2010] NSWCCA 159
Citation 11 (Para 76)

…Counsel submitted that in BP v R [2010] NSWCCA 159; (2010) A Crim R 379 at [4]-[6] Hodgson JA referred to McClellan CJ at CL’s summary of principles in KT with approval but added three points which have relevance to this case:…
R v Wilhelm [2010] NSWSC 378
Citation 12 (Para 101)

…Extra-curial punishment is punishment that is inflicted upon the offender otherwise than by a court of law: R v Wilhelm [2010] NSWSC 378 per Howie J at [21].…
TM v R [2008] NSWCCA 158
Citation 13 (Para 33)

…to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] — [36].…
KT v R [2008] NSWCCA 51
Citation 14 (Para 75)

…Mr Quilter referred to KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[26]. McClellan CJ at CL summarised the principles that relate to sentencing of young offenders. At [23] his Honour said:…
R v MAK [2006] NSWCCA 381
Citation 15 (Para 110)

…id imposing a sentence that would “induce a feeling of hopelessness and destroy any expectation of a useful life after release”: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [17].…
R v E [2006] NSWCCA 305
Citation 16

…hood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 ye…
Ahmad v R [2006] NSWCCA 177
Citation 17

…ian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177.”…
R v Stambolis [2006] NSWCCA 56
Citation 18 (Para 29)

…The Crown referred to and relied upon R v Stambolis [2006] NSWCCA 56, Howie J at [11],…
MS2 v The Queen [2005] NSWCCA 397
Citation 19

…criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61)).”…
Markarian v The Queen [2005] HCA 25
Citation 20 (Para 112)

…t does not take into account that there are many conflicting and contradictory elements which bear upon sentencing an offender: Markarian v The Queen [2005] HCA 25; 215 ALR 213.…
R v Dib [2003] NSWCCA 117
Citation 21 (Para 35)

…e the point. Therefore, there must be some circumspection about relying upon this decision. However, at [13] after his Honour referred to R v Dib [2003] NSWCCA 117, he said,…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 22 (Para 6)

…I have reviewed the principles enunciated in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518.…
Cameron v the Queen [2002] HCA 6
Citation 23

…tigated by demonstration of willingness to facilitate the course of justice: R v. Sharma (2002) 54 NSWLR 300, distinguishing Cameron v. The Queen (2002) 76 ALJR 382. [5] If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advant…
R v Atkinson [2001] NSWCCA 135
Citation 24

…s for the acceptance of the plea. The plea should be treated as one made at the earliest opportunity (C ameron v R (2002) 76 ALJR 382, R v Atkinson [2001] NSWCCA 135).”…
R v Hearne [2001] NSWCCA 37
Citation 25 (Para 25)

…h of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 26 (Para 22)

…cant utilitarian value and that the plea was effectively entered at the first reasonable opportunity following its offer. In R v Thomson; R v Houlten (2000) 49 NSWLR 383 at [152]-[153], Spigelman CJ (Forster AJA, Grove and James JJ agreeing) said the utilitarian value of a plea to the criminal justice system should ge…
Regina v Simpson [1999] NSWCCA 367
Citation 27 (Para 95)

…at the sentencing judge concludes that all of the circumstances of the case indicate ought be the minimum period of actual incarceration: R v Simpson (2001) 53 NSWLR 704 at [59]. However the non-parole period must itself appropriately reflect the criminality involved in the offence: Simpson at [63].…
R v De Simoni [1981] HCA 31
Citation 28 (Para 60)

…born in mind that I am not sentencing the offender for the death of the victim. To do so would be in breach of the De Simoni principle: R v De Simoni (1981) 147 CLR 383.…
[2005] 2 NZLR 526 [2005] 2 NZLR 526
Citation 29 (Para 43)

…rol develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 45…
Yardley v Betts (1979) 22 SASR 108
Citation 30

…Thammavongsa [2015] NSWCCA 107 R v Thomson; R v Houlten (2000) 49 NSWLR 383 R v Wilhelm [2010] NSWSC 378 SHR v R [2014] NSWCCA 94 Yardley v Betts (1979) 1 A Crim R 329 Zhao v R [2016] NSWCCA 179 Category: Sentence Parties: Regina (Crown) BB (Offender) Representation: Counsel: S Sloane (Crown) T Quilter (Offender) Solicit…

Legislation Cited

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 121)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v BB [2019] NSWDC 556
Hearing dates:	1 August 2019, 20 September 2019, 11 October 2019
Date of orders:	11 October 2019
Decision date:	11 October 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The offender is sentenced to a term of imprisonment for a period of 8 years, commencing on 26 January 2017. There is a non-parole period of 5 years 6 months.
Catchwords:	CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of aggravation; SENTENCING — Aggravating factors — Substantial harm, injury, loss or damage — Victim impact statement; SENTENCING —Timing of Plea of Guilty SENTENCING — Relevant factors on sentence — Extra Curial Punishment
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 BP v R [2010] NSWCCA 159; (2010) A Crim R 379 El-Zeyat & others v R [2015] NSWCCA 196 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Khawaja v R [2014] NSWCCA 80 Markarian v The Queen [2005] HCA 25; 215 ALR 213 Millwood v R [2012] NSWCCA 2 R MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Borkowski (2009) 195 A Crim R 1 R v Clinch (1994) 72 A Crim R 301 R v DH; R v AH [2014] NSWCCA 326 R v De Simoni (1981) 147 CLR 383 R v Dib [2003] NSWCCA 117 R v Elkassir [2013] NSWCCA R v Lambell [2019] NSWDC 78 R v Simpson (2001) 53 NSWLR 704 R v Stambolis [2006] NSWCCA 56 R v Thammavongsa [2015] NSWCCA 107 R v Thomson; R v Houlten (2000) 49 NSWLR 383 R v Wilhelm [2010] NSWSC 378 SHR v R [2014] NSWCCA 94 Yardley v Betts (1979) 1 A Crim R 329 Zhao v R [2016] NSWCCA 179
Category:	Sentence
Parties:	Regina (Crown) BB (Offender)
Representation:	Counsel: S Sloane (Crown) T Quilter (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) Blair Criminal Lawyers (Offender)
File Number(s):	2017/26189
Publication restriction:	The name and any identifiers of the Offender are restricted from publication.