AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 5 July 2019

BT v R

[2019] NSWCCA 147

Sexual offences
CRIMINAL LAW

Citation: BT v R [2019] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 5 July 2019
Judges: Bathurst CJ, Ierace J, Hidden AJ

Background

The applicant pleaded guilty in the District Court to committing an act of indecency on a child under 10 years and sexual intercourse with a child under 10 years. A further offence of indecent assault on a child was taken into account on a Form 1. The victim was a four-year-old girl temporarily in the applicant's care when her mother briefly left the house.

The sentencing judge imposed concurrent sentences: 1 year and 4 months on the indecency count, and 9 years with a non-parole period of 6 years and 9 months on the sexual intercourse count (the latter taking into account the Form 1 matter). Both sentences ran from the date of arrest on 23 June 2016.

The applicant sought leave to appeal against those sentences, raising three grounds: that the sentencing judge failed to properly account for his severely deprived background (including his Aboriginal heritage and childhood trauma), that special circumstances warranting a longer parole period should have been found, and that the sentences were unreasonable or plainly unjust.

  • Whether the sentencing judge gave proper weight to the applicant's severely deprived background, including his Aboriginal identity, childhood abuse, and mental health history, in accordance with the principles in Bugmy v The Queen and R v Fernando
  • Whether special circumstances existed that should have resulted in a longer than usual parole period (that is, a reduced ratio of non-parole period to head sentence)
  • Whether the overall sentences were unreasonable or plainly unjust

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's treatment of the applicant's background. The sentencing judge had expressly acknowledged the principles from Bugmy and Fernando, which recognise that a deprived upbringing, particularly for Aboriginal offenders, may moderate the weight given to general deterrence. The Court found that his Honour had taken those matters into account and there was no basis to conclude they had been given insufficient weight.

On special circumstances, the Court accepted that the applicant's complex rehabilitation needs, including treatment for substance abuse and sex offender programs, were genuine considerations. However, the Court found that the sentencing judge had not erred in declining to formally find special circumstances. The non-parole period of 6 years and 9 months out of a 9-year head sentence represented a ratio that was not shown to be outside the proper exercise of discretion.

The third ground required the Court to assess the sentence against the current statutory framework. The maximum penalty for sexual intercourse with a child under 10 years had been increased from 25 years to life imprisonment by the Crimes Legislation Amendment (Child Sex Offences) Act 2015, and the standard non-parole period was set at 15 years. The Court noted that cases decided under the previous 25-year maximum (including those cited by the applicant's counsel) provided no relevant guidance following that increase. Taking into account the victim's very young age, the fact she was in the applicant's care at the time, her distress and resistance, the applicant's lack of remorse, and his low level of insight, the Court found the sentence was severe but not beyond the legitimate bounds of the sentencing judge's discretion. It was not unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that Bugmy and Fernando principles require a sentencing court to consider how a deprived background, including for Aboriginal offenders, affects the weight given to general deterrence, but those principles do not automatically reduce a sentence where the judge demonstrably engaged with the material.
  • Following the 2015 amendments increasing the maximum sentence for sexual intercourse with a child under 10 years from 25 years to life imprisonment, prior sentencing cases decided under the lower maximum carry no relevant comparative weight.
  • A finding of special circumstances (which extends the parole period relative to the head sentence) is not mandatory even where rehabilitation needs are significant; the sentencing judge retains a discretion and appellate intervention requires demonstrated error.
  • No error was established in the sentencing judge's inference that the applicant had a sexual interest in underage children that he acted upon when disinhibited, even where the psychological report declined to diagnose a paraphilic disorder.
  • In assessing whether a sentence is unreasonable or plainly unjust, the Court weighed the gravity of the offending, including the victim's age, her vulnerability and resistance, and the applicant's absence of remorse, against his subjective case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- SW v R [2013] NSWCCA 255
- R v ND [2016] NSWCCA 103
- Beale v R [2015] NSWCCA 120
- Morton v R [2018] NSWCCA 84
- Newman v R [2018] NSWCCA 208
- Perkins v R [2018] NSWCCA 62
- Kertai v R [2013] NSWCCA 252
- Prince v R [2013] NSWCCA 274
- Jones v R [2012] NSWCCA 262
- RR v R [2011] NSWCCA 235
- R v Scavera [2016] NSWCCA 145