R v BKA - [2017] NSWDC 468

District Court

New South Wales

Medium Neutral Citation: R v BKA [2017] NSWDC 468
Hearing dates: 27 March 2017; 1 February 2017; 14 December 2016
Date of orders: 27 March 2017
Decision date: 27 March 2017
Jurisdiction: Criminal
Before: Hunt DCJ
Decision:
Taking into account the matters on a Form 1 the offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 15 years imprisonment with a non-parole period of 10½ years.

Catchwords: CRIMINAL LAW – Sentence – Form 1 – Sexual intercourse with person under 10 years of age – Aggravation – Under authority of offender at time of offending – Incite person under 10 years of age to commit an act of indecency – Grooming – Assault and commit act of indecency with a person under the age of 16 years - Assault and commit act of indecency with a person under that age of 10 years – Aggravated indecent assault – Possess unregistered firearm – Prohibited pistol
Legislation Cited: Crimes Act 1900 (NSW
Crimes (Sentencing Procedure) Act 1986 (NSW
Criminal Procedure Act 1986 (NSW)
Firearms Act 1996 (NSW)
Weapons Prohibition Act 1998 (NSW).
Cases Cited: R v BJW [2000] NSWCCA 60, [20] – [21]
R v Hudson (unreported) Court of Criminal Appeal 30.7.98
R v L (unreported) Court of Criminal Appeal 17.6 96
R v M A [2004] NSWCCA 92
R v Nguyen and Pham [2010] NSWCCA 238
Category: Sentence
Parties: The Crown
BKA
Representation:
Counsel:
R Howle – The Crown
D Marr – The Offender
Solicitors:
Director of Public Prosecutions

File Number(s): 2014/296213
Publication restriction: There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants.

Judgment

HIS HONOUR: At the outset it should be noted that s 578A(2) of the Crimes Act 1900 (NSW) precludes the publication of any matter that identifies or is likely to lead to identification of the victims, and for that purpose I refer to the offender, who is the step-grandfather of the victims, as BKA.
The offender pleads guilty to two sets of offences. In relation to offences against CD and DD the offender was committed for trial on 25 June 2015. He entered pleas of guilty to four counts on an indictment on the first date that the matters were listed for trial being 2 May 2016. Those offences were:

Count 1,

Sexual intercourse with a person under the age of ten years, that person CD being under the offender’s authority in breach of s 66A(2) of the Crimes Act. All references in relation to the offences in relation to CD and DD are to the Crimes Act 1900 (NSW) (the Act). The maximum penalty for that offence is life imprisonment and a standard non-parole of 15 years applies.

Count 2

Inciting CD, being a victim under the age of ten years, to commit an indecent act in breach of s 61O(2) of the Act. The maximum…

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 BKA

Details

AGLC: R v BKA [2017] NSWDC 468
Case: [2017] NSWDC 468
Decision Date: 27 March 2017

CaseChat Overview and Summary

The appellant, BKA, was convicted in the County Court of Victoria on various charges including sexual intercourse with a person under 10 years of age, inciting a person under 10 years of age to commit an act of indecency, assault and commit an act of indecency with a person under 16 years, aggravated indecent assault, and possessing an unregistered firearm, specifically a prohibited pistol. BKA appealed against the sentence imposed by the County Court. The appeal was heard by the Supreme Court of Victoria, which considered the appeal against sentence.

The primary legal issues before the court were the appropriate sentence for the multiple and serious offences committed by the appellant, and the extent to which aggravating factors should influence the sentence. The court had to consider the nature and seriousness of the offences, the age of the victims, and whether there were any aggravating factors such as the offender's authority over the victim at the time of the offending. Additionally, the court had to balance the appellant's culpability with any mitigating factors present.

The Supreme Court held that the County Court had properly considered the matters on a Form 1 and the appropriate sentence was an aggregate term of imprisonment. The court found that the offences were of a serious nature, with significant aggravating factors including the age of the victims and the appellant's position of authority. The court determined that the head sentence of 15 years imprisonment with a non-parole period of 10½ years was appropriate, taking into account the totality of the offending and the need to protect the community.

The final orders of the court were that the appeal against sentence be dismissed, and the sentence imposed by the County Court was affirmed. The appellant is to serve an aggregate term of imprisonment consisting of a head sentence of 15 years with a non-parole period of 10½ years.

Orders

Orders of the court

Taking into account the matters on a Form 1 the offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 15 years imprisonment with a non-parole period of 10½ years.

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 BKA [2017] NSWDC 468
Hearing dates:	27 March 2017; 1 February 2017; 14 December 2016
Date of orders:	27 March 2017
Decision date:	27 March 2017
Jurisdiction:	Criminal
Before:	Hunt DCJ
Decision:	Taking into account the matters on a Form 1 the offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 15 years imprisonment with a non-parole period of 10½ years.
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – Sexual intercourse with person under 10 years of age – Aggravation – Under authority of offender at time of offending – Incite person under 10 years of age to commit an act of indecency – Grooming – Assault and commit act of indecency with a person under the age of 16 years - Assault and commit act of indecency with a person under that age of 10 years – Aggravated indecent assault – Possess unregistered firearm – Prohibited pistol
Legislation Cited:	Crimes Act 1900 (NSW Crimes (Sentencing Procedure) Act 1986 (NSW Criminal Procedure Act 1986 (NSW) Firearms Act 1996 (NSW) Weapons Prohibition Act 1998 (NSW).
Cases Cited:	R v BJW [2000] NSWCCA 60, [20] – [21] R v Hudson (unreported) Court of Criminal Appeal 30.7.98 R v L (unreported) Court of Criminal Appeal 17.6 96 R v M A [2004] NSWCCA 92 R v Nguyen and Pham [2010] NSWCCA 238
Category:	Sentence
Parties:	The Crown BKA
Representation:	Counsel: R Howle – The Crown D Marr – The Offender Solicitors: Director of Public Prosecutions
File Number(s):	2014/296213
Publication restriction:	There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants.