R v BM - [2024] NSWDC 94

District Court

New South Wales

Medium Neutral Citation: R v BM [2024] NSWDC 94
Hearing dates: 14 March 2024
Date of orders: 20 March 2024
Decision date: 20 March 2024
Jurisdiction: Criminal
Before: Anderson SC DCJ
Decision:
(1) The offender is convicted of each of the five offences before the Court;
(2) I impose an aggregate sentence of 6 years and 10 months. Taking into account my finding of special circumstances, the non-parole period will be a ratio of 65%, meaning that the non-parole period will be 4 years and 5 months; and
(3) The sentence will be backdated, to commence on 20 December 2022 and expire on 19 October 2029, with a non-parole period expiring on 19 May 2027.

Catchwords:
CRIME – sentence – child sexual offences – rejection of offenders evidence regarding childhood sexual abuse

Legislation Cited:
Child Protection (Offenders Registration) Act 2000 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
DH v R [2022] NSWCCA 200
Ragg v R [2022] NSWCCA 150
R v RE [2023] NSWCCA 184
Minehan v R [2010] NSWCCA 140
Strbak v R (2020) 376 ALR 453; [2020] HCA 10
DS v R; DM v R [2022] NSWCCA 156
R v Qutami (2001) 127 A Crim R 369
R v Palu (2002) 134 A Crim R 174
Lloyd v R [2022] NSWCCA 18

Category: Sentence
Parties: BM (Offender)
Office of the Director of Public Prosecutions (Crown)
Representation:
Counsel:
Mr G Kidd (Crown)
Mr B Bickford (Defence)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Defence)

File Number(s): 2022/383750
Publication restriction: s15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the name of the complainant

JUDGMENT

These are my remarks on sentence in relation to the matter of BM, who I will refer to as “the offender” in these proceedings. The offender is before the Court for sentencing in relation to five offences, specifically:

Sequence 1 is an offence under s 66DB(a) of the Crimes Act, that is, intentionally sexually touching a child above 10 years of age but below 16 years of age. For that offence there is a maximum penalty of 10 years with no standard non-parole period. That is sequence 1.

Sequence 2 and 13 are two offences under s 66DA(a) of the Crimes Act. That is the offence of intentionally sexually touching a child below 10 years of age. The maximum penalty for that offence is 16 years with a standard non-parole period of eight years.

Sequence 11 is an offence under s 91H(2) of the Crimes Act, being the offence of possessing child abuse material where there is a maximum penalty of 10 years. There is no standard non-parole period for this offence.

The final matter before me is sequence 5, an offence under s 17(2) of the Child Protection (Offenders Registration) Act. That offence relates to failing to comply with certain reporting conditions.

I note that the offence at s 17(2) of…

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 BM

Details

AGLC: R v BM [2024] NSWDC 94
Case: [2024] NSWDC 94
Decision Date: 20 March 2024

CaseChat Overview and Summary

The case of R v BM involved a dispute over the sentencing of the offender, who was convicted of five offences relating to child sexual abuse. The offender presented evidence regarding their own history of childhood sexual abuse, which they argued should be considered in determining the appropriate sentence. The case was heard in the relevant court, which was required to consider the legal issues arising from the offender's evidence and the sentencing principles applicable to such offences.

The primary legal issue for the court was whether the offender's history of childhood sexual abuse should be taken into account as a mitigating factor in sentencing. The court needed to balance the need for appropriate punishment and deterrence against the potential for rehabilitation and the impact of the offender's past experiences on their current offending behaviour. The court also had to consider the principle of proportionality in sentencing and the need to ensure that the sentence reflects the seriousness of the offences committed.

The court rejected the offender's evidence regarding their childhood sexual abuse as a mitigating factor in sentencing, finding that it did not provide a sufficient basis for reducing the sentence. The court emphasised the gravity of the offences and the need for appropriate punishment and deterrence. The court also considered the principle of proportionality and the need to ensure that the sentence reflects the seriousness of the offences. Ultimately, the court imposed an aggregate sentence of 6 years and 10 months, with a non-parole period of 4 years and 5 months.

The final orders of the court included a conviction of the offender on each of the five offences, an aggregate sentence of 6 years and 10 months, and a non-parole period of 4 years and 5 months. The sentence was backdated to commence on 20 December 2022 and expire on 19 October 2029, with the non-parole period expiring on 19 May 2027. The court's decision reflects the seriousness of the offences and the need for appropriate punishment and deterrence, while also taking into account the principle of proportionality in sentencing.

Orders

Orders of the court

(1) The offender is convicted of each of the five offences before the Court;

(2) I impose an aggregate sentence of 6 years and 10 months. Taking into account my finding of special circumstances, the non-parole period will be a ratio of 65%, meaning that the non-parole period will be 4 years and 5 months; and

(3) The sentence will be backdated, to commence on 20 December 2022 and expire on 19 October 2029, with a non-parole period expiring on 19 May 2027.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v BM [2024] NSWDC 94
Hearing dates:	14 March 2024
Date of orders:	20 March 2024
Decision date:	20 March 2024
Jurisdiction:	Criminal
Before:	Anderson SC DCJ
Decision:	(1) The offender is convicted of each of the five offences before the Court; (2) I impose an aggregate sentence of 6 years and 10 months. Taking into account my finding of special circumstances, the non-parole period will be a ratio of 65%, meaning that the non-parole period will be 4 years and 5 months; and (3) The sentence will be backdated, to commence on 20 December 2022 and expire on 19 October 2029, with a non-parole period expiring on 19 May 2027.
Catchwords:	CRIME – sentence – child sexual offences – rejection of offenders evidence regarding childhood sexual abuse
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 (NSW) Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	DH v R [2022] NSWCCA 200 Ragg v R [2022] NSWCCA 150 R v RE [2023] NSWCCA 184 Minehan v R [2010] NSWCCA 140 Strbak v R (2020) 376 ALR 453; [2020] HCA 10 DS v R; DM v R [2022] NSWCCA 156 R v Qutami (2001) 127 A Crim R 369 R v Palu (2002) 134 A Crim R 174 Lloyd v R [2022] NSWCCA 18
Category:	Sentence
Parties:	BM (Offender) Office of the Director of Public Prosecutions (Crown)
Representation:	Counsel: Mr G Kidd (Crown) Mr B Bickford (Defence) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Defence)
File Number(s):	2022/383750
Publication restriction:	s15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the name of the complainant