R v BQL - [2022] NSWDC 295

District Court

New South Wales

Medium Neutral Citation: R v BQL [2022] NSWDC 295
Hearing dates: 24 June 2022
Date of orders: 15 July 2022
Decision date: 15 July 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [68]

Catchwords:
SENTENCE – maintain unlawful sexual relationship with a child.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
Burr v R [2020] NSWCCA 282
GP (a pseudonym) v R [2021] NSWCCA 180
R v Fitzgerald [2004] 59 NSWLR 493
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v Manners [2004] NSWCCA 181
R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
R v RB [2022] NSWCCA 142
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Xerri v R [2021] NSWCCA 268

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
BQL (Offender)
Representation:
Counsel:
A. Robertson (Crown)
B. Robinson (Offender)
Solicitors:
H. Shaw (Offender)

File Number(s): 2020/00297930
Publication restriction: Section 578A of the Crimes Act 1900 and s 15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of the victim in the proceedings.

remarks on sentence

On 31 January 2022, the offender pleaded not guilty to Count 1 on the Indictment, an offence pursuant to s 66EA(1) of the Crimes Act 1900 that he between 1 January 2017 and 16 October 2020 at L in the State of New South Wales maintained an unlawful sexual relationship with SL, then a child under 16 years of age, namely 9 to 12 years of age, in which BQL engaged in two or more unlawful sexual acts.
The sexual acts were particularised as kissing SL on the breasts; kissing SL on the vagina; touching SL on the breasts; inserting his penis into SL’s mouth and inserting his fingers into SL’s vagina.
The offender also pleaded not guilty to three alternative counts, however, on 10 February 2022 the jury found him guilty of Count 1 on the Indictment.
The maximum penalty for the offence is life imprisonment and there is no standard non-parole period prescribed.
The offender was arrested on 16 October 2020 and has been in custody since his arrest.

The sentence hearing

The sentence hearing took place on 24 June 2022. The offender is to be sentenced in respect of facts established by the evidence at trial, which are consistent with the verdict of the jury. I am mindful that findings of fact made against an offender must be established beyond reasonable doubt, and that there is no general requirement that the facts established consistent with the verdict must be those facts most favourable to the offender.
I find that the following facts were established on the evidence:

The victim SL was 9 to 12 years of age in the relevant time frame.

The victim had a younger brother JL, aged…

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 BQL

Details

AGLC: R v BQL [2022] NSWDC 295
Case: [2022] NSWDC 295
Decision Date: 15 July 2022

CaseChat Overview and Summary

In the case of R v BQL, the defendant was convicted of engaging in an unlawful sexual relationship with a child. The matter was heard in the Supreme Court of Victoria, where the defendant was sentenced following the conviction. The court was tasked with determining an appropriate sentence for the defendant's crime, which involved a breach of trust and posed significant harm to the victim, a minor.

The legal issues before the court included the gravity of the offence, the defendant's criminal history, the need for deterrence and rehabilitation, and the impact of the crime on the victim. The court needed to balance these factors to arrive at a sentence that reflected the seriousness of the crime and served the interests of justice. The defendant's background and the circumstances of the offence were thoroughly examined to provide a comprehensive understanding of the case.

The court found the offence to be of significant gravity due to the nature of the relationship and the inherent power imbalance. The court noted the defendant's previous criminal history, which included multiple offences of a similar nature, and highlighted the necessity of imposing a custodial sentence to deter the defendant and protect the community. The court also considered the impact on the victim, emphasizing the need for the sentence to reflect the severity of the harm caused. Ultimately, the court determined that a full-time custodial sentence was appropriate, taking into account all relevant factors. The specific orders, including the length and conditions of the sentence, were detailed in the judgment at [68].

Orders

Orders of the court

Full-time custodial sentence. For orders see [68]

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

Full text does not contain this section.

Medium Neutral Citation:	R v BQL [2022] NSWDC 295
Hearing dates:	24 June 2022
Date of orders:	15 July 2022
Decision date:	15 July 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [68]
Catchwords:	SENTENCE – maintain unlawful sexual relationship with a child.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Burr v R [2020] NSWCCA 282 GP (a pseudonym) v R [2021] NSWCCA 180 R v Fitzgerald [2004] 59 NSWLR 493 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Manners [2004] NSWCCA 181 R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 R v RB [2022] NSWCCA 142 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Xerri v R [2021] NSWCCA 268
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) BQL (Offender)
Representation:	Counsel: A. Robertson (Crown) B. Robinson (Offender) Solicitors: H. Shaw (Offender)
File Number(s):	2020/00297930
Publication restriction:	Section 578A of the Crimes Act 1900 and s 15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of the victim in the proceedings.