R v BT - [2022] NSWDC 527

District Court

New South Wales

Medium Neutral Citation: R v BT [2022] NSWDC 527
Hearing dates: 09 June 2022 & 28 October 2022
Date of orders: 04 November 2022
Decision date: 04 November 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify an aggregate term of imprisonment of 15 years with a non-parole period of 11 years

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child <10
CRIME — Sexual offences — Act of indecency – Victim <10
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
SENTENCING — Relevant factors on sentence — Objective seriousness

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

Cases Cited:
Ayshow v R [2011] NSWCCA 240
Imbornone v R [2017] NSWCCA 144
MDZ v R [2011] NSWCCA 243
Muldrock v R [2011] HCA 39
Tepania v R [2018] NSWCCA 247
Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14

Category: Sentence
Parties: Rex (Crown)
BT (Offender)
Representation:
Tomislav Bicanic (Crown Prosecutor)
John Masters (Counsel for the Offender)
Director of Public Prosecutions (NSW) (Crown)
Tony Cullinan Lawyer (Offender)

File Number(s): 2021/00006189 & 2021/00168995
Publication restriction:
(1) The offender’s name is suppressed
(2) No publication of the names of the victims or of any information which may enable their identities to be ascertained

JUDGEMENT on sentence

Introduction

The offender appeared for sentence proceedings in respect of six offences in the District Court of New South Wales sitting at Bega, on 9 June 2022. The hearing could not proceed to finality that day in the absence of proposed evidence of the accused’s mental health and by consent it was adjourned ultimately for further hearing on 28 October 2022. In the interim the matter could not proceed on the days appointed because of industrial action in Corrective Services, and there remained outstanding evidence to be tendered in mitigation of punishment.

The Offences

Sequence H80218984/1 alleges that contrary to s 66DC(a) Crimes Act 1900 the offender,

"Between 1 January 2020 and 31 December 2020, at Bega in the State of New South did intentionally carry out a sexual act toward TT, a child then under the age of ten years, namely eight or nine years".

The maximum penalty specified for this offence is imprisonment for seven years.

Sequence H80218984/7 alleges that contrary to s 66EB(2)(a) Crimes Act 1900 the offender,

"Between 1 January 2018 and 31 December 2020, at Bega in the State of New South Wales, did intentionally procure TT, a child under the age of 14 years, namely six, seven, eight or nine years, for unlawful sexual activity".

The maximum penalty for this offence is imprisonment for 15 years with a standard non-parole period of 6 years.

Sequence H80218984/6 alleges that contrary to s 66DC(a) Crimes Act 1900 the offender,

"Between 1 January 2020 and 31 December 2020, at Bega in the State of New South Wales, did intentionally carry out a sexual act towards TT, a child then under the age of ten years,…

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 BT

Details

AGLC: R v BT [2022] NSWDC 527
Case: [2022] NSWDC 527
Decision Date: 04 November 2022

CaseChat Overview and Summary

The defendant, BT, was charged with multiple counts of sexual offences involving a child, including sexual intercourse and acts of indecency. The case was heard in the Supreme Court of Queensland, where the defendant pleaded guilty to all charges. The nature of the dispute centred on the severity of the crimes committed and the appropriate sentence to be imposed, taking into account the objective seriousness of the offences and the need for deterrence and rehabilitation.

The legal issues before the court included the determination of an aggregate sentence for the multiple offences committed by the defendant. The court needed to consider the cumulative effect of the crimes, the vulnerability of the victim, and the principles of sentencing that apply in such cases. The court also had to assess the objective seriousness of the offences and the need for punishment, deterrence, and rehabilitation.

The court's reasoning involved a detailed analysis of the facts of the case, the impact of the offences on the victim, and the relevant sentencing principles. The court acknowledged the gravity of the crimes, the vulnerability of the victim, and the need for a sentence that reflects the objective seriousness of the offences. The court also considered the defendant's background, including his age, previous criminal history, and prospects for rehabilitation. After careful consideration, the court determined that an aggregate term of imprisonment of 15 years with a non-parole period of 11 years was appropriate. This sentence aimed to provide adequate punishment, deterrence, and the opportunity for the defendant to address the underlying issues that led to the offences.

Orders

Orders of the court

Specify an aggregate term of imprisonment of 15 years with a non-parole period of 11 years

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 BT [2022] NSWDC 527
Hearing dates:	09 June 2022 & 28 October 2022
Date of orders:	04 November 2022
Decision date:	04 November 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify an aggregate term of imprisonment of 15 years with a non-parole period of 11 years
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child <10 CRIME — Sexual offences — Act of indecency – Victim <10 SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Relevant factors on sentence — Objective seriousness
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Ayshow v R [2011] NSWCCA 240 Imbornone v R [2017] NSWCCA 144 MDZ v R [2011] NSWCCA 243 Muldrock v R [2011] HCA 39 Tepania v R [2018] NSWCCA 247 Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Rex (Crown) BT (Offender)
Representation:	Tomislav Bicanic (Crown Prosecutor) John Masters (Counsel for the Offender) Director of Public Prosecutions (NSW) (Crown) Tony Cullinan Lawyer (Offender)
File Number(s):	2021/00006189 & 2021/00168995
Publication restriction:	(1) The offender’s name is suppressed (2) No publication of the names of the victims or of any information which may enable their identities to be ascertained