R v BG - [2019] NSWDC 396

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v BG [2019] NSWDC 396
Hearing dates: 14 June 2019
Date of orders: 14 June 2019
Decision date: 14 June 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate sentence of imprisonment of 9 years, with a non-parole period of 6 years: at [62].

Catchwords: SENTENCING — Aggravating factors — Breach of trust — Substantial harm, injury, loss or damage — Victim impact statement
SENTENCING — Mitigating factors — Plea of guilty— Rehabilitation
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Multiple offences — Aggregate sentences — Pearce
SENTENCING — Sentencing procedure — Use of statistics
SENTENCING — Subjective considerations on sentence — Hardship
Legislation Cited: Crimes Act 1901
Crimes (Sentencing Procedure) Act 1999
Cases Cited: McDowall v R [2019] NSWCCA 29
PB v R [2016] NSWCCA 258
Pearce v The Queen (1998) 194 CLR 610
Power v The Queen (1974) 131 CLR 623
R v Barakat [2004] NSWCCA 201
R v Bugmy (1990) 169 CLR 525
R v Fisher (1989) 40 A Crim R 442
R v Qutami (2001) 127 A Crim R 369
R v Thomas [2007] NSWCCA 269
R v Way (2004) 60 NSWLR 168
R v Wheeler [2000] NSWCCA 34
R v X [2003] NSWCCA 56
TP v R [2018] NSWCCA 140
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
BG (Offender)
Representation:
Mr Horowitz (Crown)
Ms Cusack (Offender)

File Number(s): 2018/85705
Publication restriction: STATUTORY NON PUBLICATION APPLIES – Section 578A Crimes Act 1900 (any matter that may identify the complainant(s))

Judgment

On the night of 21 July 2013, BG who was born on in 1968, took his then 15 year old stepson to Singleton, and in a motel room committed a series of sexual offences which lead to him appearing for sentence today on the following counts.
First, a count of aggravated indecent assault under s 61M(2) of the Crimes Act 1901, which carries a maximum penalty of ten years, with, what has been described as the anomalous standard non-parole period of eight years.
Secondly a charge under s 66C(4) of the Crimes Act of aggravated sexual intercourse with a child between 14 and 16 which carries a maximum penalty of 12 years imprisonment.
Thirdly, a count under s 61O(1) of the Crimes Act of aggravated inciting an act of indecency, which carries a maximum penalty of five years with no standard non-parole period.
Finally, a count under s 61J(1), of aggravated sexual assault. It carries a maximum penalty of 20 years imprisonment, with a ten year standard non-parole period.
All of those maximum penalties and where applicable its standard non-parole periods are important legislative guideposts or yardsticks to be taken into account in the sentencing process.
He pleaded guilty on the day of the trial being listed earlier this year, and in my view, a 10% discount on a term of imprisonment should be allowed for the utilitarian value of those pleas. It was…

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 BG

Details

AGLC: R v BG [2019] NSWDC 396
Case: [2019] NSWDC 396
Decision Date: 14 June 2019

CaseChat Overview and Summary

In the case of R v BG, the appellant faced sentencing in the Supreme Court of Victoria after being found guilty of multiple offences, including deception, fraud, and breaches of trust. The offences were committed over a period of time and involved substantial harm to the victims. The court had to consider various aggravating and mitigating factors in determining an appropriate sentence.

The legal issues included the consideration of the severity of the offences, the breach of trust, the impact on the victims, and the appellant's plea of guilty and potential for rehabilitation. The court also needed to consider relevant factors such as deterrence, the nature of the offences, and the cumulative effect of multiple offences. The use of statistics in sentencing and the subjective consideration of hardship were also factors in the decision-making process.

The court found that the offences were serious, with significant harm caused to the victims. The breach of trust was a particularly aggravating factor, as was the substantial harm and injury caused. The victim impact statement was also a crucial factor in understanding the effect of the crimes on the victims. On the mitigating side, the court acknowledged the appellant's plea of guilty and the potential for rehabilitation. However, the court found that the need for deterrence and the cumulative effect of the multiple offences outweighed the mitigating factors. The court imposed an aggregate sentence of imprisonment of 9 years, with a non-parole period of 6 years.

The court ordered an aggregate sentence of imprisonment of 9 years, with a non-parole period of 6 years. This sentence reflected the seriousness of the offences and the need to protect the community and deter future offending.

Orders

Orders of the court

An aggregate sentence of imprisonment of 9 years, with a non-parole period of 6 years: at [62].

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	R v BG [2019] NSWDC 396
Hearing dates:	14 June 2019
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate sentence of imprisonment of 9 years, with a non-parole period of 6 years: at [62].
Catchwords:	SENTENCING — Aggravating factors — Breach of trust — Substantial harm, injury, loss or damage — Victim impact statement SENTENCING — Mitigating factors — Plea of guilty— Rehabilitation SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Multiple offences — Aggregate sentences — Pearce SENTENCING — Sentencing procedure — Use of statistics SENTENCING — Subjective considerations on sentence — Hardship
Legislation Cited:	Crimes Act 1901 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	McDowall v R [2019] NSWCCA 29 PB v R [2016] NSWCCA 258 Pearce v The Queen (1998) 194 CLR 610 Power v The Queen (1974) 131 CLR 623 R v Barakat [2004] NSWCCA 201 R v Bugmy (1990) 169 CLR 525 R v Fisher (1989) 40 A Crim R 442 R v Qutami (2001) 127 A Crim R 369 R v Thomas [2007] NSWCCA 269 R v Way (2004) 60 NSWLR 168 R v Wheeler [2000] NSWCCA 34 R v X [2003] NSWCCA 56 TP v R [2018] NSWCCA 140
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) BG (Offender)
Representation:	Mr Horowitz (Crown) Ms Cusack (Offender)
File Number(s):	2018/85705
Publication restriction:	STATUTORY NON PUBLICATION APPLIES – Section 578A Crimes Act 1900 (any matter that may identify the complainant(s))