R v BC

Case [2022] ACTCA 19


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

Legislation Cited:

Crimes Act 1900 (ACT), ss 55(2), 61(1)
Crimes (Sentencing) Act
2005 (ACT)

Cases Cited:

Bugmy v The Queen (1990) 169 CLR 525
Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299
Craft v Diebert [2004] ACTCA 15
Director of Public Prosecutions v Ip [2005] ACTCA 24
EG v R [2015] NSWCCA 21
Hili v The Queen [2010] HCA 45; 242 CLR 520
Markarian v The Queen [2005] HCA 25, 228 CLR 357
R v Clark (1996) 2 VR 520
R v Cornell [2015] NSWCCA 258
R v Duffy
[2014] ACTCA 53; 297 FLR 359
R v Nicholas; R v Palmer [2019] ACTCA 36
R v Summerfield [2018] ACTCA 20; 273 A Crim R 45
R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103
R v Tully (No 3) [2014] ACTSC 275
R v UG [2020] ACTCA 8
Tully v The Queen [2016] ACTCA 4
Wong v The Queen [2001] HCA 64; 207 CLR 584

Parties:

The Queen ( Appellant)

BC ( Respondent)

Representation:

Counsel

A Williamson ( Appellant)

S McLaughlin (Respondent)

Solicitors

ACT Director of Public Prosecutions ( Appellant)

Legal Aid ACT ( Respondent)

File Number:

ACTCA 32 of 2021

Decision under appeal: 

Court:  Supreme Court of the Australian Capital Territory

Before:  Loukas-Karlsson J

Date of Decision:          11 June 2021

Case Title:  R v BC (No 4)

Citation: [2021] ACTSC 119

THE COURT

Introduction

  1. This appeal relates to sentences imposed by a judge of the Court (sentencing judge) for four offences under the Crimes Act 1900 (ACT)…

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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.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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