Citation: BC v R (No 2) [2019] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 1 July 2019
Judge(s): Leeming JA; Ierace J; Hidden AJ
Background
The applicant had been convicted after trial on multiple counts of child sexual assault and was serving an aggregate sentence of 14 years with a non-parole period of 10 years and 6 months, imposed in May 2017. An aggregate sentence is a single combined sentence covering multiple offences rather than individual sentences for each count.
In the earlier judgment in this matter (BC v R [2019] NSWCCA 111, delivered 5 June 2019), the Court of Criminal Appeal quashed the applicant's convictions on counts 1 to 3 and entered verdicts of acquittal on those counts. The appeal against conviction on the remaining counts (4 to 20) was otherwise dismissed.
Because the original sentence was an aggregate covering all counts, including those now quashed, resentencing became necessary to reflect the applicant's conviction on counts 4 to 20 only.
Legal Issues
- What resentencing orders were appropriate following the partial success of the conviction appeal?
- Whether the Court of Criminal Appeal should itself impose a new sentence or remit the matter to the District Court for resentencing.
- Whether further evidence and oral submissions should be received before resentencing.
Decision
Following the partial success of the appeal, the Court initially proposed an aggregate sentence of 13 years with a non-parole period of 9 years and 9 months. Rather than immediately imposing that sentence, the Court invited further submissions, including on whether a further hearing should be held.
After receiving written submissions in late June 2019, the applicant applied for a further oral hearing and indicated an intention to adduce additional evidence relevant to resentencing. That evidence had not yet been provided to the Court, and its nature, whether it was controversial, and whether cross-examination would be required, remained unknown.
The Court noted that the original sentencing had occurred more than two years earlier, making it possible that materially different evidence would be available on resentencing. Both parties consented to remittal to the District Court, and the Court determined that remittal was the appropriate course in these particular circumstances.
Orders Made
- The sentence imposed on 18 May 2017 was quashed.
- The proceedings were remitted to the District Court for the purpose of resentencing the applicant.
- The matter was listed for mention in the District Court at Newcastle on Thursday, 18 July 2019.
Key Takeaways
- Where a conviction appeal partially succeeds and an aggregate sentence covers quashed and surviving counts together, resentencing becomes necessary to reflect only the surviving convictions.
- The Court of Criminal Appeal confirmed that remittal to the District Court for resentencing is an available and appropriate course, particularly where further evidence may be adduced and the facts have evolved since the original sentencing.
- Consent of both parties to remittal, while not determinative, was a relevant consideration that supported the Court's decision to adopt that course.
- A gap of more than two years between the original sentencing and the appeal outcome can itself be a factor weighing in favour of remittal, given the potential for materially different evidence to be available.
- In dismissing parts of a conviction appeal while quashing others, the Court's sentencing function does not automatically resolve where the new sentence hearing should occur; procedural fairness considerations around evidence and submissions remain relevant.
Legislation and Cases Referenced
Cases:
- BC v R [2019] NSWCCA 111 (the principal conviction appeal judgment)
Legislation:
No specific legislation was identified in the judgment text or metadata.