SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
R v BC
Citation:
[2022] ACTCA 19
Hearing Date:
10 February 2022
DecisionDate:
5 May 2022
Before:
Elkaim, Mossop and Bromwich JJ
Decision:
1. The Crown appeal be allowed.
2. The non-parole period of 18 months imposed on 11 June 2021 be set aside.
3. The respondent’s non-parole period be 3 years, commencing on 10 June 2021 and ending on 9 June 2024.
Catchwords:
APPEAL – CRIMINAL LAW – Crown appeal against non-parole period imposed for three offences of sexual intercourse with a person under the age of 16 – one female child victim, who was the respondent’s cousin – where offences took place in 2010, but arrest and charges were made in 2018, with no suggestion of offending in the intervening period – whether the sentencing judge erred in relying heavily on the respondent’s prospects of rehabilitation based on the absence of reoffending in the period between the sexual intercourse offences in 2010 and him being arrested and charged in 2018 – whether the sentencing judge erred in giving significant weight to third party hardship in setting the non-parole period in light of the gravity of the offences – where the sentencing judge did not explain why the non-parole period bore an appropriate relationship to the total sentence, or otherwise explain how it was a proper exercise of the sentencing discretion – whether non‑parole period was manifestly inadequate
This appeal relates to sentences imposed by a judge of the Court (sentencing judge) for four offences under the Crimes Act 1900 (ACT)…
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.
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Details
AGLC
R v BC [2022] ACTCA 19
Case
[2022] ACTCA 19
Decision Date
CaseChat Overview and Summary
The Supreme Court of the Australian Capital Territory, constituted by Elkaim, Mossop, and Bromwich JJ, heard an appeal by the Crown against a non-parole period imposed on the respondent. The respondent had pleaded guilty to four offences under the Crimes Act 1900 (ACT): one count of an act of indecency with a person under 10 years of age, committed in 2004, and three counts of sexual intercourse with a person under 16, committed in 2010. The victim in all offences was the respondent's cousin. The sentencing judge had imposed a two-year good behaviour order for the indecency offence and an aggregate head sentence of four years and six months' imprisonment for the sexual intercourse offences, with a non-parole period of 18 months. The Crown's appeal specifically targeted the adequacy of this non-parole period.
The central legal issues before the Court were whether the sentencing judge erred in placing significant weight on the respondent's prospects of rehabilitation, evidenced by the absence of reoffending between 2010 and his arrest in 2018, and whether undue emphasis was given to third-party hardship in setting the non-parole period, given the gravity of the offences. The Court was also required to determine if the sentencing judge failed to adequately explain the relationship between the non-parole period and the total sentence, and whether the imposed non-parole period was manifestly inadequate.
The Court allowed the Crown's appeal, finding that the non-parole period was manifestly inadequate and that the sentencing judge's reasons were infected by errors of principle. The Court held that the sentencing judge gave undue weight to rehabilitation considerations and third-party hardship, while inadequately addressing the need for general deterrence and denunciation, and the objective seriousness of the offending. The Court reiterated the principles governing Crown sentence appeals, emphasising that such appeals are to correct sentences that reveal manifest inadequacy or inconsistency in sentencing standards, thereby constituting an error in principle. The Court also highlighted the requirement for an appropriate relationship between a head sentence and its associated non-parole period, noting that the non-parole period represents the portion of the sentence that must actually be served in custody.
Consequently, the Court set aside the non-parole period of 18 months and imposed a new non-parole period of three years, commencing on 10 June 2021 and ending on 9 June 2024.