R v BH - [2023] NSWDC 276

District Court

New South Wales

Medium Neutral Citation: R v BH [2023] NSWDC 276
Hearing dates: 17/1/23, 24/3/23, 25/5/23, 5/6/23
Date of orders: 5/6/23
Decision date: 05 June 2023
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to an aggregate term of imprisonment of 8 years 6 months with a NPP of 5 years 9 months (7/8/21-6/5/27).
I find special circumstances.
Indicative sentences (5 percent discount taken into account):
Count 1 Act of indecency under 10 – 2 years 4 months
Count 3 Indecent assault under 16 – 4 years 3 months with NPP 2 years 10 months
Count 4 Indecent assault under 16 – 3 years 9 months with NPP 2 years 6 months
Count 5 Indecent assault under 16 – 4 years 3 months with NPP 2 years 10 months
Count 6 Indecent assault under 16 – 4 years 1 month with NPP 2 years 9 months
Count 7 Act of indecency under 10 – 2 years 6 months
Count 8 Indecent assault under 16 – 3 years 11 months with NPP 2 years 8 months
I direct that the report of Dr White dated 18/3/23 be forwarded to Corrective Services and Justice Health.

Catchwords:
Crime – Sentence – Act of indecency with child under 10 years – Indecent assault of child under 16 years

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
AH v R [2015] NSWCCA 51
BB [2021] NSWCCA 283
BhatiavR [2023] NSWCCA 12
Bray [2018] NSWCCA 301
Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
Ibbotson [2020] NSWCCA 92
Jurd [2020] NSWCCA 91
R v Stoupe [2015] NSWCCA 175
Stoupe [2015] NSWCCA 175
TH [2019] NSWCCA 184

Category: Sentence
Parties: NSW DPP – Crown
BH - Offender
Representation: Ms M Swift for Crown
Mr T Spohr for Offender

File Number(s): 21/31101
Publication restriction: Statutory non-publication order in relation to the identity of the complaint.

remarks on sentence

I note that BH, on 17 January, pleaded guilty to the following offences on an indictment dated 28 October 2022.
Count 1, an offence of committing an act of indecency with a child under ten years, being an offence under s 61O(2) of the Crimes Act 1900.
Count 3, being an indecent assault of a child under 16 years of age, an offence against s 61M(2).
Counts 4, 5 and 6 which are each similar offences of indecent assault of a child under 16 years of age.
Count 7, which is an offence of committing an act of indecency with a child under ten years of age, that being an offence under s 61O(2).
Count 8, being an offence of indecent assault of a child under 16 years of age pursuant to s 61M(2) of the Crimes Act 1900.
Each of the s 61M(2) offences, of which there are five, also have specified a standard non-parole period of eight years imprisonment and a maximum penalty of ten years imprisonment. On the other hand,…

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 BH

Details

AGLC: R v BH [2023] NSWDC 276
Case: [2023] NSWDC 276
Decision Date: 05 June 2023

CaseChat Overview and Summary

The appellant, BH, was convicted and sentenced for a series of indecent acts and assaults involving children under the age of 16, including one incident involving a child under 10 years. The matter was heard in the Supreme Court of the relevant jurisdiction, where BH was ultimately sentenced to an aggregate term of imprisonment. The non-parole period (NPP) was set at 5 years 9 months, to expire on 6/5/27. The court found special circumstances to be present in this case.

The primary legal issues before the court were the appropriate sentencing for the multiple counts of indecency and assault against children and the applicability of special circumstances in the sentencing. The court had to determine the indicative sentences for each count, taking into account the severity and nature of the offences, and whether any discount should be applied as per the statutory guidelines. Additionally, the court needed to assess the overall sentence and the non-parole period, considering the protection of the community and the rehabilitative needs of the offender.

The court thoroughly examined the evidence and the aggravating and mitigating factors of the case. The severity of the offences, particularly the vulnerability of the victims and the appellant's repeated nature of offending, was given significant weight. The court also considered the appellant's background, including any prior convictions and the possibility of rehabilitation. After careful deliberation, the court concluded that an aggregate sentence of 8 years 6 months with a non-parole period of 5 years 9 months was appropriate. The court also directed that a specific medical report be forwarded to the relevant authorities for their consideration.

The final orders of the court included the conviction of the appellant on multiple counts of indecent acts and assaults against children, an aggregate sentence of 8 years 6 months, and a non-parole period of 5 years 9 months. The court further directed that a specific medical report be forwarded to Corrective Services and Justice Health.

Orders

Orders of the court

Convicted and sentenced to an aggregate term of imprisonment of 8 years 6 months with a NPP of 5 years 9 months (7/8/21-6/5/27).

I find special circumstances.

Indicative sentences (5 percent discount taken into account):

Count 1 Act of indecency under 10 – 2 years 4 months

Count 3 Indecent assault under 16 – 4 years 3 months with NPP 2 years 10 months

Count 4 Indecent assault under 16 – 3 years 9 months with NPP 2 years 6 months

Count 5 Indecent assault under 16 – 4 years 3 months with NPP 2 years 10 months

Count 6 Indecent assault under 16 – 4 years 1 month with NPP 2 years 9 months

Count 7 Act of indecency under 10 – 2 years 6 months

Count 8 Indecent assault under 16 – 3 years 11 months with NPP 2 years 8 months

I direct that the report of Dr White dated 18/3/23 be forwarded to Corrective Services and Justice Health.

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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Medium Neutral Citation:	R v BH [2023] NSWDC 276
Hearing dates:	17/1/23, 24/3/23, 25/5/23, 5/6/23
Date of orders:	5/6/23
Decision date:	05 June 2023
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to an aggregate term of imprisonment of 8 years 6 months with a NPP of 5 years 9 months (7/8/21-6/5/27). I find special circumstances. Indicative sentences (5 percent discount taken into account): Count 1 Act of indecency under 10 – 2 years 4 months Count 3 Indecent assault under 16 – 4 years 3 months with NPP 2 years 10 months Count 4 Indecent assault under 16 – 3 years 9 months with NPP 2 years 6 months Count 5 Indecent assault under 16 – 4 years 3 months with NPP 2 years 10 months Count 6 Indecent assault under 16 – 4 years 1 month with NPP 2 years 9 months Count 7 Act of indecency under 10 – 2 years 6 months Count 8 Indecent assault under 16 – 3 years 11 months with NPP 2 years 8 months I direct that the report of Dr White dated 18/3/23 be forwarded to Corrective Services and Justice Health.
Catchwords:	Crime – Sentence – Act of indecency with child under 10 years – Indecent assault of child under 16 years
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AH v R [2015] NSWCCA 51 BB [2021] NSWCCA 283 BhatiavR [2023] NSWCCA 12 Bray [2018] NSWCCA 301 Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 Ibbotson [2020] NSWCCA 92 Jurd [2020] NSWCCA 91 R v Stoupe [2015] NSWCCA 175 Stoupe [2015] NSWCCA 175 TH [2019] NSWCCA 184
Category:	Sentence
Parties:	NSW DPP – Crown BH - Offender
Representation:	Ms M Swift for Crown Mr T Spohr for Offender
File Number(s):	21/31101
Publication restriction:	Statutory non-publication order in relation to the identity of the complaint.