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7
Court of Criminal Appeal 14 October 2011

BIP v R

[2011] NSWCCA 224

Sexual offences
CRIMINAL LAW SENTENCE APPEAL NEED TO RESENTENCE

Citation: BIP v R [2011] NSWCCA 224
Court: Court of Criminal Appeal, New South Wales
Date: 14 October 2011
Judges: Bathurst CJ, James J, Hoeben J

Background

The applicant pleaded guilty on the first day of trial in June 2010 to four offences: two counts of aggravated act of indecency against a person under 16 years, and two counts of aggravated sexual intercourse with children aged between 10 and 16 years. The offences were committed against three children, all of whom were the daughters of the applicant's de facto partner. The offending occurred between October 2004 and August 2007, with a further Form 1 offence involving a fourth child occurring in 2009.

The sentencing judge in the District Court imposed a total sentence of 10 years' imprisonment with a non-parole period of 10 years and a balance of term of 4.5 years, representing an overall term of 14.5 years. The applicant sought leave to appeal against the severity of those sentences, raising sixteen grounds of appeal.

  • Whether the sentencing judge erred by taking into account factual matters that fell outside the agreed facts
  • Whether the sentencing judge imposed sentences involving an element of preventative detention
  • Whether factors that were already elements of the charged offences were incorrectly treated as additional aggravating circumstances
  • Whether the sentencing judge applied an inconsistent approach to the assessment of objective seriousness across similar offences
  • Whether the sentencing judge incorrectly treated certain matters (including the victims' ages, the applicant's denials, and the victims being asleep) as aggravating factors
  • Whether, cumulatively, the errors identified warranted resentencing

Decision

Hoeben J (with whom Bathurst CJ and James J agreed) upheld several grounds of appeal. The Court found that the sentencing judge had taken into account factual matters that were not part of the agreed statement of facts, and had treated certain features of the offences as aggravating circumstances when those features were already built into the elements of the offences themselves. For example, the victims' ages could not be treated as a further aggravating matter where the age of the victim was an element of the specific offence charged.

The Court also found inconsistency in the sentencing judge's characterisation of the objective seriousness of individual counts, and identified that some reasoning appeared to reflect a preventative or protective sentencing purpose rather than a purely punitive one proportionate to the offending. The finding that the applicant's initial denials constituted an aggravating factor was also held to be in error.

While the Court emphasised that the objective gravity of the offending was serious, requiring a substantial period of imprisonment, it concluded that the cumulative effect of the multiple errors had materially influenced the original exercise of the sentencing discretion. The number and nature of the errors together meant that resentencing was necessary, rather than treating any individual error as merely imprecise expression.

Hoeben J adjusted the sentences to more accurately reflect the agreed facts and the proper application of aggravating factors. The overall structure of the resentencing reduced the total term to 13 years, with a non-parole period of 8.5 years and a balance of term of 4.5 years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentences imposed on 13 August 2010 quashed
  • In lieu, the applicant was resentenced as follows:
  • Count 1 (aggravated act of indecency): fixed term of 2 years commencing 27 October 2009, expiring 26 October 2011
  • Count 6 (aggravated act of indecency): fixed term of 2 years commencing 27 October 2010, expiring 26 October 2012
  • Count 5 (sexual intercourse, child aged 14 to 16): 5 years' imprisonment, non-parole period of 3 years commencing 27 April 2012, expiring 26 April 2015, balance of term of 2 years expiring 26 April 2017
  • Count 3 (sexual intercourse, child aged 10 to 14): 8 years and 6 months' imprisonment, non-parole period of 4 years commencing 27 April 2014, expiring 26 April 2018, balance of term of 4.5 years expiring 26 October 2022

Key Takeaways

  • A sentencing court must not treat as an aggravating factor any circumstance that is already an element of the offence as charged; doing so amounts to double-counting and constitutes a sentencing error.
  • Factual findings at sentence must remain within the scope of agreed facts; departure from those agreed facts without a proper basis is a distinct and correctable error.
  • The Court of Criminal Appeal confirmed that where multiple sentencing errors are identified, their cumulative effect may justify resentencing even where some individual errors might in isolation have been treated as mere imprecision.
  • Inconsistency in the characterisation of objective seriousness across counts involving similar conduct may itself constitute a ground of appeal, particularly where it produces disproportionate outcomes between comparable offences.
  • Even where resentencing is warranted due to procedural and reasoning errors, the objective gravity of serious child sexual abuse offences still demands a substantial term of imprisonment.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61M, 61O, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- EK v R [2010] NSWCCA 199
- Ingham v R [2011] NSWCCA 88
- Mirza v R [2007] NSWCCA 248
- R v Comert [2004] NSWCCA 125
- R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346
- R v Mitchell [2007] NSWCCA 296
- Veen v R (No 2) (1988) 164 CLR 465
- Waters v R [2007] NSWCCA 219