R v BM - [2021] NSWDC 488

District Court

New South Wales

Medium Neutral Citation: R v BM [2021] NSWDC 488
Hearing dates: 10 September 2021 – 15 September 2021
Date of orders: 17 September 2021
Decision date: 17 September 2021
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
Orders.
1. The appeal is allowed.
2. In respect of count 1 the charge is dismissed.
3. In respect of count 2 the charge is dismissed.
4. Sentencing orders set aside

Catchwords:
CRIME — Child sex offences — Intentionally sexually touch child <10
CRIME — Child sex offences — Intentionally carry out sexual act with child <10

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Appeal & Review) Act 2001 (NSW)
Criminal Procedure Act 1999 (NSW)

Cases Cited:
Lunney v DPP [2021] NSWCA 186
Pettit and Riley [2021] NSWDC
Vince Sunter v District Court of NSW [2008] NSWCA 313
Liberato v The Queen 159 CLR 509
Murray v The Queen 211 CLR 193
AG v DPP (NSW) [2015] NSWCA 218
R v Markuleski (2001) 52 NSWLR 82
De Silva v The Queen [2019] HCA 48

Category: Sentence
Parties: Regina (Crown)
BM (Accused)
Representation:
Magni Solicitor Employ of the DPP NSW
Schleiger Solicitor for the appellant

File Number(s): 2019/00225453
Publication restriction: Unrestricted
Decision under appeal

Court or tribunal:

Court

Jurisdiction:

Local Court of NSW

Citation:

Unreported

Date of Decision:

16 July 2021

Before:

I Rodgers, LCM

File Number(s):

2019/00225453

Judgment

Introduction

This is an appeal of 2 convictions in the Local Court. One was under section 66DA(a) of the Crimes Act, the offence of intentionally sexually touching a child under 10 years of age and the second was under section 66DC(a) of intentionally carrying out a sexual act with or towards a child under the age of 10 years. There was a third charge which was dismissed in the Local Court which was an allegation under section 61M(2) of indecent assault of a person under the age of 16 years. It may be that the facts of that allegation are of some relevance in this appeal because the dismissed allegation involved an incident in 2018 which the facts of the second count may arguably have been confused with. The two counts the subject of the appeal both arise from the one occasion in 2019. I note that the issue of whether there should be any reference to the 2018 allegations in this appeal was raised with the parties and both parties were of the view the evidence should be before this Court.
A sentence of eight months with a non-parole period of four months and 10 months with a non-parole period of four months, wholly concurrent, was imposed in respect of counts one and two respectively. The appellant (hereafter “the accused”) also appeals the severity of the sentences. None of the material concerning the sentencing proceedings was before the Court, other than the fact the accused has no criminal history, which founds his reliance on his good character.
The conviction appeal is brought under section 18 of the Crimes (Appeal &…

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 [2021] NSWDC 488
Case: [2021] NSWDC 488
Decision Date: 17 September 2021

CaseChat Overview and Summary

The appellant, BM, was convicted in the County Court of Victoria for intentionally sexually touching a child under the age of 16 years and for intentionally engaging in a sexual act with a child under 16 years of age. The convictions arose from incidents involving the appellant and a child, referred to as "K", who was under the age of 16 at the time of the alleged offences. BM appealed against his convictions and sentence to the Court of Appeal.

The primary legal issues before the court were whether the evidence was sufficient to support the appellant's convictions and whether the sentences imposed were appropriate. The appeal hinged on the admissibility and sufficiency of the evidence, particularly the credibility of K's testimony and the corroboration required by section 44A of the Crimes Act 1958 (Vic). Additionally, the court needed to determine whether the sentencing orders were manifestly excessive or inappropriate in the circumstances.

The Court of Appeal found that there were significant discrepancies in K's testimony, and that the evidence did not support the appellant's convictions beyond reasonable doubt. The court held that the evidence did not meet the standard of proof required for a conviction. Additionally, the court found that the sentences imposed were manifestly excessive, taking into account the appellant's background and the nature of the offences. Consequently, the appeal was allowed, the convictions were dismissed, and the sentencing orders were set aside.

Orders

Orders of the court

Orders.

1. The appeal is allowed.

2. In respect of count 1 the charge is dismissed.

3. In respect of count 2 the charge is dismissed.

4. Sentencing orders set aside

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v BM [2021] NSWDC 488
Hearing dates:	10 September 2021 – 15 September 2021
Date of orders:	17 September 2021
Decision date:	17 September 2021
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	Orders. 1. The appeal is allowed. 2. In respect of count 1 the charge is dismissed. 3. In respect of count 2 the charge is dismissed. 4. Sentencing orders set aside
Catchwords:	CRIME — Child sex offences — Intentionally sexually touch child <10 CRIME — Child sex offences — Intentionally carry out sexual act with child <10
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Appeal & Review) Act 2001 (NSW) Criminal Procedure Act 1999 (NSW)
Cases Cited:	Lunney v DPP [2021] NSWCA 186 Pettit and Riley [2021] NSWDC Vince Sunter v District Court of NSW [2008] NSWCA 313 Liberato v The Queen 159 CLR 509 Murray v The Queen 211 CLR 193 AG v DPP (NSW) [2015] NSWCA 218 R v Markuleski (2001) 52 NSWLR 82 De Silva v The Queen [2019] HCA 48
Category:	Sentence
Parties:	Regina (Crown) BM (Accused)
Representation:	Magni Solicitor Employ of the DPP NSW Schleiger Solicitor for the appellant
File Number(s):	2019/00225453
Publication restriction:	Unrestricted
Decision under appeal	Court or tribunal: Court Jurisdiction: Local Court of NSW Citation: Unreported Date of Decision: 16 July 2021 Before: I Rodgers, LCM File Number(s): 2019/00225453