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Court of Criminal Appeal 19 February 2024

BB v R

[2024] NSWCCA 13

Sexual offencesDomestic & family violence
CRIME APPEAL AGAINST SENTENCE AGGREGATE SENTENCE CHILD SEX OFFENCES SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: BB v R [2024] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 19 February 2024
Judges: Davies J, Huggett J, R A Hulme AJ

Background

The applicant pleaded guilty in the District Court to eight sexual offences against his younger sister, all committed when both were under 18. The offences spanned a period during which the applicant was aged 14 to 19 and the victim was aged 7 to 11. A 10% discount was applied to each indicative sentence to reflect the guilty pleas.

Judge Grant imposed an aggregate sentence of 5 years' imprisonment with a non-parole period of 3 years. By the time of sentencing, the applicant was 26 years old.

The applicant sought leave to appeal on three grounds, each concerning either an alleged legal error in the sentencing process or the proposition that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by classifying certain counts (aggravated sexual intercourse without consent) as "serious children's indictable offences" under s 3 of the Children (Criminal Proceedings) Act 1987 (NSW), when that classification was incorrect.
  • Whether the sentencing judge erred by failing to treat as a mitigating factor the applicant's lost opportunity to be sentenced under the more lenient regime in Part 3, Division 4 of the Children (Criminal Proceedings) Act, which would have been available had he been prosecuted before turning 21.
  • Whether the aggregate sentence of 5 years was manifestly excessive, having regard to the applicant's youth at the time of offending and other subjective factors.

Decision

Ground 1: Error in classifying counts as serious children's indictable offences

The Court accepted that the sentencing judge erred by describing certain counts as serious children's indictable offences. However, Part 2, Division 4 of the Children (Criminal Proceedings) Act, which governs how indictable offences against child offenders are to be dealt with, did not apply to the applicant at all. Because the applicant was 24 (not under 21) when charged before the court, he fell outside the Act's prerequisite entirely and had to be dealt with according to law in any event. The mislabelling of the counts therefore had no effect on the sentencing discretion exercised by the judge, and no error vitiating the sentence was established.

Ground 2: Lost opportunity to be sentenced under a more lenient regime

The Court noted that the applicant had expressly disavowed relying on this argument at the District Court hearing. More fundamentally, the Court found that any benefit the applicant might theoretically have received from being prosecuted before age 21 was purely hypothetical. Even if the alternative regime had been available, the gravity of the offending was such that it was not practically possible the offences would have been dealt with other than according to law. No miscarriage of justice warranting intervention was established.

Ground 3: Manifest excess

The Court considered the gravity of the offending alongside the full range of subjective factors, including the applicant's age at the time of the offences. Having regard to comparable decisions and the sentencing principles applicable to juvenile offenders, the Court was not persuaded the aggregate sentence was unreasonable or plainly unjust. Ground 3 was rejected.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • An error by a sentencing judge in labelling an offence as a "serious children's indictable offence" under s 3 of the Children (Criminal Proceedings) Act 1987 will not vitiate the sentence where the relevant provisions of that Act did not apply to the offender in any case, and the error had no practical effect on the exercise of the sentencing discretion.
  • Where an applicant expressly disavows a mitigating argument at first instance, the Court of Criminal Appeal will be slow to treat that argument as a ground of appeal. The court will not intervene on the basis of a theoretical or hypothetical benefit the applicant never actually pursued.
  • The "lost opportunity" argument, namely that delayed prosecution deprived an offender of access to a more lenient sentencing regime, will generally not succeed where the gravity of the offending is such that the alternative regime would not practically have applied regardless.
  • Under the Children (Criminal Proceedings) Act 1987, the prerequisite for the application of certain youth-oriented sentencing provisions is that the offender be under 21 years of age when charged before the court. An offender who is 21 or older at that point is outside the scheme entirely.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that the full range of subjective factors, including youth at the time of offending, must be weighed against the gravity of the particular offences before a sentence can be characterised as unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 33(1)(g), Pt 2 Div 4, Pt 3 Div 4
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 66A, 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1)

Cases:
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- BM v R [2019] NSWCCA 223
- BP v R [2010] NSWCCA 51
- BT v R [2012] NSWCCA 276
- GP v R [2021] NSWCCA 180
- Hornhardt v R [2017] NSWCCA 186
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Millwood v R [2012] NSWCCA 2
- Newman v R [2019] NSWCCA 157
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- PD v R [2012] NSWCCA 242
- R v AA [2017] NSWCCA 84
- R v GDP (1991) 53 A Crim R 112
- R v JDB [2005] NSWCCA 102; (2005) 153 A Crim R 164
- R v RM [2015] NSWCCA 4
- SHR v R [2014] NSWCCA 94
- TC v R [2016] NSWCCA 3
- Young v R [2022] NSWCCA 111; (2022) 298 A Crim R 468
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460