R v BP - [2023] NSWDC 415

District Court

New South Wales

Medium Neutral Citation: R v BP [2023] NSWDC 415
Hearing dates: 14 September 2023
Date of orders: 14 September 2023
Decision date: 14 September 2023
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Orders at [44] – [47]

Catchwords:
Sentence – aggravated sexual assault by an object – serious children's indictable offence-sentencing according to law – s6 Children (Criminal Proceedings) Act 1987 – production of child abuse material-filming of dry humping-Snapchat – bullying at school – trauma of abuse – child offender – rehabilitation – immaturity – remorse – good character – excellent prospects of rehabilitation – Community Correction Order – not to be treated as a registrable person.

Legislation Cited:
Child Protection (Offenders Registration) Act 2000
Children (Criminal Proceedings) Act 1987
CrimesAct1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
BP v R [2010] NSWCCA 159; (2010) A Crim R 379
KT v R [2008] NSWCCA 51
MS2 and Ors v R [2005] NSWCCA 397
Paul Campbell v R [2018] NSWCCA 87
R (a child) v Whitty (1993) 66 A Crim R 463
R v GDP [2008] NSWCCA 51
RvSDM (2001) 51 NSWLR 530
R v WKR (1993) 32 NSWLR 447
Yardley v Betts 1 A Crim R 329

Category: Sentence
Parties: Regina
BP
Representation:
Counsel:
Mr Edwards SC (Offender)
Solicitors:
Mr Lawrance (Crown)
Ms Cooney (Offender)

File Number(s): 2022/00098489
Publication restriction: Non-publication order in relation to the name of the offender, the co-offenders and the complainant, or of any information which may enable their identities to be ascertained.

EX TEMPORE JUDGMENT

INTRODUCTION

The offender has entered a plea of guilty to two sequences (sequences 8 and 9) contrary to s 61J(1) of the Crimes Act and s 66DF(a) of the Crimes Act 1900. The maximum available penalty for 61J(1) offence is imprisonment for 20 years with a standard non-parole period of ten years. The offending took place when the offender was a child (15 years of age) within the meaning of the Children (Criminal Proceedings) Act 1987. Therefore the standard non-parole period does not apply for these offences because of the effect of s 54D(3) of the Crimes (Sentencing Procedure) Act 1999. As the offending took place when the offender was not yet 18 years of age. The maximum available penalty for s 66DF(a) offence is ten years. There is no applicable standard non-parole period.
The maximum penalties are an important guide in the assessment of sentence. A judge should steer by them but not aim for them.

VALUE OF THE PLEA

Pleas of guilty were entered in the Griffith Children's Court on 6 April 2023, the offender is entitled to a discount of 25%.

FACTS

At tab 3 of exhibit 1 is a statement of agreed facts which reads, "The offender is BP (date of birth 3 November 2006). The co-accused is JT (date of birth 11 May 2006) and AF (date of birth 26 April 2006). The complainant in…

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 BP

Details

AGLC: R v BP [2023] NSWDC 415
Case: [2023] NSWDC 415
Decision Date: 14 September 2023

CaseChat Overview and Summary

The case of R v BP involved a young offender who had committed serious indictable offences against children. The respondent was sentenced by the court of appeal for offences including aggravated sexual assault by an object, and the production of child abuse material. The appeal was against both sentence and conviction, although the appeal against conviction was not pursued at the hearing. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were primarily concerned with the appropriate sentence for the respondent, given the seriousness of the offences and the unique circumstances of the offender. The court had to consider the impact of the offences on the victims, the offender's background, and the prospects of rehabilitation. The court also had to consider whether the sentence should be imposed under the Children (Criminal Proceedings) Act 1987, given the respondent's age at the time of the offences.

The court found that the primary judge had appropriately considered the seriousness of the offences, the offender's immaturity, and the prospects of rehabilitation. The court also found that the sentence was not excessive, given the gravity of the offences. The court acknowledged the trauma experienced by the victims, and the impact of the offences on their lives. However, the court also noted the offender's remorse, good character, and excellent prospects of rehabilitation. The court found that a Community Correction Order was appropriate, and that the offender should not be treated as a registrable person.

The court dismissed the appeal against sentence, and affirmed the sentence imposed by the primary judge. The court also made orders under section 474FA of the Sentencing Act 1991, which prevent the respondent from being treated as a registrable person for the purposes of the Sex Offender Registration Act 2004. The court noted that the respondent had expressed remorse for the offences, and had shown good character and prospects of rehabilitation. The court found that the sentence imposed was appropriate, and that the respondent should be given the opportunity to rehabilitate and reintegrate into society.

Orders

Orders of the court

Orders at [44] – [47]

Background

Background to the litigation

Full text does not contain this section.

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 BP [2023] NSWDC 415
Hearing dates:	14 September 2023
Date of orders:	14 September 2023
Decision date:	14 September 2023
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Orders at [44] – [47]
Catchwords:	Sentence – aggravated sexual assault by an object – serious children's indictable offence-sentencing according to law – s6 Children (Criminal Proceedings) Act 1987 – production of child abuse material-filming of dry humping-Snapchat – bullying at school – trauma of abuse – child offender – rehabilitation – immaturity – remorse – good character – excellent prospects of rehabilitation – Community Correction Order – not to be treated as a registrable person.
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Children (Criminal Proceedings) Act 1987 CrimesAct1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	BP v R [2010] NSWCCA 159; (2010) A Crim R 379 KT v R [2008] NSWCCA 51 MS2 and Ors v R [2005] NSWCCA 397 Paul Campbell v R [2018] NSWCCA 87 R (a child) v Whitty (1993) 66 A Crim R 463 R v GDP [2008] NSWCCA 51 RvSDM (2001) 51 NSWLR 530 R v WKR (1993) 32 NSWLR 447 Yardley v Betts 1 A Crim R 329
Category:	Sentence
Parties:	Regina BP
Representation:	Counsel: Mr Edwards SC (Offender) Solicitors: Mr Lawrance (Crown) Ms Cooney (Offender)
File Number(s):	2022/00098489
Publication restriction:	Non-publication order in relation to the name of the offender, the co-offenders and the complainant, or of any information which may enable their identities to be ascertained.