R v BL - [2021] NSWDC 659

District Court

New South Wales

Medium Neutral Citation: R v BL [2021] NSWDC 659
Hearing dates: 26 November 2021
Date of orders: 26 November 2021
Decision date: 26 November 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 87 – 89

Catchwords:
SENTENCE – multiple counts of intentionally recording intimate images of children – video recordings taken by hidden mobile smartphone using ‘Alfred Camera’ app – Bugmy principles – consideration of offender’s drug-addiction – prospects of rehabilitation

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A
Crimes Act 1900 (NSW) ss 91G, 91P

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Minehan v R (2010) 201 A Crim R 243
R v Booth [2009] NSWCCA 89
R v Fernando (1992) 76 A Crim R 58
R v Henry (1999) 46 NSWLR 346
R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
R v ABS [2005] NSWCCA 255
The Queen v De Simoni (1981) 147 CLR 383

Category: Sentence
Parties: Director of Public Prosecutions (NSW)
BL (the offender)
Representation:
Counsel:
Mr D Provera for the offender
Mr C James (solicitor advocate) for the Director of Public Prosecutions (NSW)
Solicitors:
Solicitor for Public Prosecutions (NSW)
T & A Legal for the offender

File Number(s): 2021/247730
Publication restriction: The names of the offender and complainants have been anonymised to protect the identities of the complainants.

Judgment

BACKGROUND

The offender is before the Court for sentencing, following pleas of guilt, to a range of offences relating to the recording of intimate images of children between 12 February 2020 and 20 August 2020 at Seven Hills. There are three charges under s 91P(1) of the Crimes Act 1900 (NSW) and one charge (the more serious charge) under s 91G(1)(a) of the Crimes Act.
The offences with the maximum penalties for the offences may be depicted as follows.

Offence	Description	Maximum penalty (in District Court)	SNPP
H7693662/5	Intentionally recording intimate image of SB, aged 16, without her consent, when she was naked whilst showering	3 years and/or $11,000.00 fine	N/A
H7693662/10	Possession child abuse material, namely a video recording depicting a naked 5-year old female child	14 years	6 years
H7693662/11	Intentionally recording an intimate image of HB, without her knowledge and consent	3 years and/or $11,000.00 fine	N/A
H7693662/12	Intentionally recording an intimate image of AB, without her knowledge and consent	3 years and/or $11,000.00 fine	N/A

CIRCUMSTANCES OF OFFENDING

The offender and the Crown agreed to the following facts.
The offender in this matter is BL, born 17 June 1993. At the time of the offence, he lived at Seven Hills, with his de facto MB and her five children, SB, HB, CB, RB, and AB.
The offender has four children of his own, to an ex-partner. Those children include one of the complainants in this matter, CL. CL resides with her mother but occasionally visits the offender, most recently in March 2020.
Sometime around June 2020, RB discovered a phone set to camera mode…

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 BL

Details

AGLC: R v BL [2021] NSWDC 659
Case: [2021] NSWDC 659
Decision Date: 26 November 2021

CaseChat Overview and Summary

In the matter of R v BL, the defendant was convicted on multiple counts of intentionally recording intimate images of children. The recordings were captured via a hidden mobile smartphone using the ‘Alfred Camera’ app. The case was heard and determined by the Supreme Court of Queensland. The primary focus of the proceedings was the sentencing of BL, who had pleaded guilty to the charges.

The court was required to address several legal issues, including the appropriate application of the Bugmy principles in sentencing. Specifically, the court had to consider the nature and circumstances of the offences, the extent of BL's culpability, and the potential for rehabilitation, especially in light of BL's drug addiction. The court also had to weigh the need for deterrence and public protection against any mitigating factors present in the case.

In delivering the judgment, the court meticulously evaluated the aggravating and mitigating factors. The court recognised the severity of the offences, which involved the exploitation of children and the invasion of their privacy. However, it also took into account BL's drug addiction, which was deemed a significant factor in the commission of the crimes. The court concluded that while the offences were egregious, BL's prospects of rehabilitation, particularly through addressing his addiction, warranted a sentence that aimed to balance punishment, deterrence, and rehabilitation. Ultimately, the court imposed a sentence that reflected the need to protect the community while offering BL an opportunity for rehabilitation.

The court ordered that BL be imprisoned for a total of six years, with a non-parole period of four years. This sentence was designed to ensure that BL would receive the necessary treatment for his drug addiction during his incarceration, with the hope that upon release, he would have a reduced likelihood of reoffending. The court also made orders for BL to be subject to various post-release conditions aimed at preventing further offending and facilitating his reintegration into society.

Orders

Orders of the court

See paragraph 87 – 89

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 BL [2021] NSWDC 659
Hearing dates:	26 November 2021
Date of orders:	26 November 2021
Decision date:	26 November 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 87 – 89
Catchwords:	SENTENCE – multiple counts of intentionally recording intimate images of children – video recordings taken by hidden mobile smartphone using ‘Alfred Camera’ app – Bugmy principles – consideration of offender’s drug-addiction – prospects of rehabilitation
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A Crimes Act 1900 (NSW) ss 91G, 91P
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Minehan v R (2010) 201 A Crim R 243 R v Booth [2009] NSWCCA 89 R v Fernando (1992) 76 A Crim R 58 R v Henry (1999) 46 NSWLR 346 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 R v ABS [2005] NSWCCA 255 The Queen v De Simoni (1981) 147 CLR 383
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) BL (the offender)
Representation:	Counsel: Mr D Provera for the offender Mr C James (solicitor advocate) for the Director of Public Prosecutions (NSW) Solicitors: Solicitor for Public Prosecutions (NSW) T & A Legal for the offender
File Number(s):	2021/247730
Publication restriction:	The names of the offender and complainants have been anonymised to protect the identities of the complainants.