AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 14 December 2020

BC v R

[2020] NSWCCA 329

Assault & violence
CRIMINAL LAW SENTENCE APPEAL APPLICANT AGED 17 AT TIME OF OFFENCE DISPUTED FACTS HEARING WHETHER JUDGE MISDIRECTED HIMSELF

Citation: BC v R [2020] NSWCCA 329
Court: NSW Court of Criminal Appeal
Date: 14 December 2020
Judge(s): Gleeson JA, Price J, Wright J

Background

The applicant, who was 17 years old at the time of the offending, pleaded guilty in the District Court to one count of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years' imprisonment. He had separately pleaded guilty in the Children's Court to a related common assault charge. The wounding arose from a stabbing that occurred outside a shopping centre, in which the victim suffered a serious chest wound.

A factual dispute arose when the applicant claimed, in a Juvenile Justice report, that he had seen the victim armed with a screwdriver before he stabbed him. This account conflicted with the agreed statement of facts, which described the victim as retreating with his hands raised. Because the Crown did not accept the applicant's version, a disputed facts hearing was held in the District Court before sentencing.

The sentencing judge ultimately rejected the applicant's account and sentenced him to 8 years' imprisonment with a non-parole period of 4 years. The applicant sought leave to appeal, challenging both the factual findings made at the disputed facts hearing and the resulting sentence.

  • Whether the sentencing judge erred in his assessment of the evidence at the disputed facts hearing, such that the factual findings were not open on the evidence
  • Whether the judge failed to properly account for the applicant's psychological condition, specifically symptoms of PTSD, in assessing his moral culpability
  • Whether the judge erred by considering the applicant's conduct at the disputed facts hearing when assessing remorse, and whether it was open to find the applicant lacked genuine remorse
  • Whether the overall sentence of 8 years' imprisonment with a 4-year non-parole period was manifestly excessive

Decision

Ground 1: Disputed facts findings
The Court of Criminal Appeal found no error in the sentencing judge's assessment of the evidence. The judge had the benefit of CCTV footage and five Crown witnesses, and was entitled to prefer that evidence over the applicant's account. Although one witness had mentioned seeing screwdrivers fall to the ground, the judge's conclusion that the applicant had not established his claimed version of events was open on the evidence as a whole.

Ground 2: Moral culpability and PTSD
The applicant argued that his PTSD symptoms played a causative role in the offending and that the judge had failed to take this into account when assessing moral culpability. The Court rejected this ground, finding that the judge had in fact considered the applicant's psychological condition. The Court found it was not established that the PTSD causally contributed to the offending in the manner asserted.

Ground 3: Remorse
The applicant challenged the judge's finding that he lacked genuine remorse, partly on the basis that the judge had impermissibly used the applicant's conduct at the disputed facts hearing against him. The Court dismissed this ground, accepting that it was open to the judge to take into account the applicant's persistence in a version of events that was rejected, as a factor relevant to the genuineness of the expressed remorse. No error was identified in the judge's approach.

Ground 4: Manifest excess
The Court acknowledged that the sentence sat at the upper end of the range for this type of offence committed by an offender of the applicant's age. However, it concluded that the sentence fell within the legitimate exercise of the sentencing discretion. The offence involved a serious act of knife violence with grave consequences for the victim, and the applicant had not established that the sentence was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's factual findings made at a disputed facts hearing will not be disturbed on appeal merely because conflicting evidence existed; the appellate court must be satisfied that the findings were not open on the evidence, applying the principles in House v The King (1936) 55 CLR 499.
  • Where an offender claims that a psychological condition such as PTSD causally contributed to the offending, the onus rests on the offender to establish that causal connection on the balance of probabilities; an assertion of symptoms alone will not automatically reduce assessed moral culpability.
  • A sentencing court may legitimately have regard to an offender's conduct during a disputed facts hearing, including the persistence of a rejected account, when evaluating whether expressed remorse is genuine.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence at the upper end of the range for a given offence and offender profile is not, without more, manifestly excessive if it remains within the proper exercise of the sentencing discretion.
  • The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) did not apply to this offender because he was aged 17 at the time of the offence, consistent with the protections available to young offenders under the Children (Criminal Proceedings) Act 1987 (NSW).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 33(1)(b)
- Crimes Act 1900 (NSW), ss 33(1)(a), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)
- Evidence Act 1995 (NSW), s 38

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38
- R v Thomson; R v Houlton (2000) 14 NSWLR 374; [2000] NSWCCA 309
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- JB v R [2012] NSWCCA 196
- Lloyd v R [2017] NSWCCA 303
- Gommesen v R [2012] NSWCCA 226
- Egan v R [2017] NSWCCA 206
- Aslan v R [2014] NSWCCA 114
- Skocic v R [2014] NSWCCA 225
- Windle v R [2011] NSWCCA 277
- R v Nguyen [2004] NSWCCA 438
- R v Phillip (a pseudonym) [2019] NSWDC 448
- R v Jasper [2014] NSWDC 116