R v BC

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.