R v BH

Case [2023] NSWCCA 278 27 November 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v BH [2023] NSWCCA 278
Hearing dates: 30 October 2023
Date of orders: 27 November 2023
Decision date: 27 November 2023
Before: Davies J at [1]
Cavanagh J at [94]
Sweeney J at [95]
Decision:
(1) Appeal allowed.
(2) Quash the sentence imposed in the District Court on 30 June 2023.
(3) In lieu, sentence the respondent to an aggregate sentence of 18 years’ imprisonment commencing 17 February 2023 and expiring 16 February 2041 with a non-parole period of 12 years expiring 16 February 2035.
(4) The respondent is first eligible for parole on 16 February 2035.

Catchwords:
CRIME – appeals – Crown appeal against sentence – manifest inadequacy – 14 counts of child sexual abuse against biological daughter over a period of two years – where complainant was aged between 6 and 8 years – where clear guidance on the appropriate range for indicative sentences for this type of offending was recently provided in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 – where Crown drew attention to TH in its written submissions to the sentencing judge – held indicative sentences for 10 offences at mid-range and above mid-range far below the proper range of sentences for such offending – where head sentence for all of the offending less than standard non-parole period for 1 of the 13 counts of sexual intercourse with a child under 10 years –– aggregate sentence an affront to the administration of justice – Court must intervene and resentence – appeal allowed – resentence

Legislation Cited:
Crimes Act 1900 (NSW) ss 61J, 61M, 66A, 66C
Crimes (Sentencing Procedure) Act 1999 (NSW) s 54B

Cases Cited:
Bravo v R [2015] NSWCCA 302
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DR v R [2022] NSWCCA 151
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Facer (A Pseudonym) v The Queen [2019] NSWCCA 180; (2019) 279 A Crim R 156
Filippou v R [2013] NSWCCA 92
Griffiths v The Queen (1977) 137 CLR 293
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Merkel v R [2019] NSWCCA 212
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v DN [2023] NSWCCA 39
R v RJ [2023] NSWCCA 273
R v Reeves [2014] NSWCCA 154; (2014) 243 A Crim R 559
RH v R [2019] NSWCCA 64
Sharma v R [2022] NSWCCA 190
Sinkovich v R [2014] NSWCCA 97
TO v R [2017] NSWCCA 12; (2017) 265 A Crim R 191
ZA v R [2017] NSWCCA 132; (2017) 267 A Crim R 105

Texts Cited:
Nil

Category: Principal judgment
Parties: The King (Applicant)
BH (Respondent)
Representation:
Counsel:
M Kumar (Applicant)
Mr Glissan KC…

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] NSWCCA 278
Case: [2023] NSWCCA 278
Decision Date: 27 November 2023

CaseChat Overview and Summary

The defendant, BH, was convicted on 14 counts of child sexual abuse against his biological daughter, who was aged between 6 and 8 years at the time of the offences. The case was heard in the Court of Appeal, where the Crown appealed against the sentence imposed by the sentencing judge, claiming it was manifestly inadequate. The Crown's appeal focused on the disparity between the sentence imposed and the severity of the offending, as well as the need for appropriate sentencing guidance for such cases.

The central legal issue for the court to determine was whether the sentence imposed by the sentencing judge was manifestly inadequate, given the nature and circumstances of the offences. The court needed to consider the appropriate range for indicative sentences for this type of offending, as well as the standard non-parole period for each offence. The Crown argued that the head sentence imposed for all of the offending was less than the standard non-parole period for one of the 13 counts of sexual intercourse with a child under 10 years, and that the aggregate sentence was an affront to the administration of justice.

The Court of Appeal found that the indicative sentences for 10 offences were at the mid-range and above mid-range, which were far below the proper range of sentences for such offending. The court noted that clear guidance on the appropriate range for indicative sentences for this type of offending was recently provided in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81. The Court held that the head sentence for all of the offending was less than the standard non-parole period for one of the 13 counts of sexual intercourse with a child under 10 years, and that the aggregate sentence was manifestly inadequate. The Court allowed the Crown's appeal and ordered that BH be resentenced.

The final orders of the Court of Appeal were that the appeal against sentence be allowed, and that BH be resentenced by the sentencing judge or a different judge of the Supreme Court. The Court emphasised the need for appropriate sentencing guidance for such cases, and the importance of ensuring that sentences reflect the seriousness of the offending and the protection of the community.

Orders