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11
Court of Criminal Appeal 8 November 2024

BAP v R

[2024] NSWCCA 206

Sexual offences
CRIME SENTENCE APPEAL OVER” ERROR ESTABLISHED APPLICANT RE SENTENCED

Citation: BAP v R [2024] NSWCCA 206
Court: Court of Criminal Appeal, NSW
Date: 8 November 2024
Judges: Wright J, Cavanagh J, Yehia J (Yehia J delivering the principal judgment)

Background

The applicant, referred to as BAP, was sentenced in the District Court at Newcastle in July 2023 for three child sexual assault offences committed between 2015 and 2022 against three of his female cousins. A further three offences were taken into account on two Form 1s (a procedural mechanism allowing the court to consider additional charges without imposing separate penalties). The offences fell under several provisions of the Crimes Act 1900 (NSW).

The original sentence imposed an aggregate term of 10 years, with a non-parole period of 6 years. The sentencing judge applied a 10% discount for the guilty pleas, which had been entered at a District Court "super call-over" in December 2022. BAP had spent two days in pre-sentence custody and the sentence was backdated accordingly.

BAP had a range of learning and intellectual disabilities, including a chromosomal abnormality, and was 17 years old at the time of one of the offences, placing him within the definition of a "child" under the Children (Criminal Proceedings) Act 1987 (NSW). He sought leave to appeal on four grounds, arguing errors in the sentencing judge's approach to his guilty plea, his prior criminal record, his age and cognitive impairment, and overall excessiveness.

  • Whether the sentencing judge should have found that the applicant's guilty plea at the District Court "super call-over" constituted facilitation of the administration of justice, warranting a discount or mitigating weight beyond the utilitarian value of the plea under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred in withholding leniency for Count 2 on account of the applicant's subsequent criminal record, given BAP had no prior record at the time that offence was committed
  • Whether the sentencing judge failed to properly engage with the principles governing the sentencing of offenders who were children at the time of an offence, and whether the judge adequately addressed BAP's diminished mental capacity
  • Whether the resulting indicative and aggregate sentences were manifestly excessive

Decision

Ground 1 (facilitation of justice): Rejected. Yehia J held that a guilty plea does not automatically demonstrate a willingness to facilitate the course of justice; it may simply reflect an acceptance of an overwhelming Crown case. The sentencing judge's reference to "at least 10%" did not imply that a further reduction was warranted. Critically, no argument was put to the sentencing judge, either in writing or orally, that BAP had facilitated the administration of justice beyond the utilitarian value of the plea. The Court acknowledged that resolution at a super call-over can, in some cases, demonstrate facilitation of justice, but each case turns on its own facts and circumstances.

Ground 2 (criminal record): Rejected. The sentencing judge was entitled to withhold leniency in respect of Count 2 by reference to BAP's subsequent offending. The Court confirmed that the absence of a prior record at the time an earlier offence was committed is not a significant mitigating factor where later conduct of the same kind indicates the earlier offending was not an isolated aberration.

Ground 3(a) (failure to engage with youth sentencing principles): Upheld. The sentencing judge's bare reference to s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) and general sentencing provisions, without substantive analysis, was insufficient. The Court held that merely naming the section does not engage with the relevant principles: whether and to what extent youth reduces moral culpability, moderates the weight given to denunciation and deterrence, and shifts emphasis toward rehabilitation. Importantly, the Court affirmed that the observation about youth considerations diminishing as an offender approaches 18 years of age requires a nuanced, individualised approach, because neurobiological and developmental maturity does not necessarily correspond neatly with chronological age. Ground 3(b), concerning the treatment of mental health and cognitive impairment, was rejected because the sentencing judge had in fact reduced moral culpability and reduced the weight given to deterrence on account of BAP's disorders.

Ground 4 (manifest excess): Not considered. Having found error on Ground 3(a), the Court proceeded directly to resentencing without needing to address overall excessiveness.

On resentencing, Yehia J imposed an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months, commencing 22 February 2022. A finding of special circumstances was made, reflecting BAP's mental health and cognitive impairment, his youth, his first-time custody status, protective custody conditions, and the impact of COVID-19 restrictions early in his sentence.

Orders Made

  • Time for bringing the appeal extended under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
  • Leave to appeal granted
  • Appeal upheld
  • Original sentence quashed
  • Aggregate term of imprisonment of 7 years and 6 months imposed, commencing 22 February 2022 and expiring 21 August 2029
  • Non-parole period of 4 years and 6 months, expiring 21 August 2026
  • First eligible for release to parole on 21 August 2026

Key Takeaways

  • A mere statutory citation is not enough: where an offender was a child at the time of offending, the sentencing court must substantively engage with how youth affects moral culpability, the weight given to deterrence and denunciation, and the emphasis on rehabilitation. Citing s 6 of the Children (Criminal Proceedings) Act 1987 without analysis constitutes error.

  • Neurobiological and developmental maturity does not automatically align with proximity to the age of 18. The Court of Criminal Appeal confirmed that the proposition that youth considerations diminish as an offender approaches adulthood must be applied with nuance, accounting for individual developmental circumstances.

  • Pleading guilty at a District Court super call-over is not, by itself, evidence of facilitation of the administration of justice beyond the utilitarian value of the plea. Whether such facilitation exists depends on the particular facts and must be raised before the sentencing judge.

  • Where an offender's subsequent conduct reveals a pattern of offending of the same kind, the absence of a criminal record at the time of an earlier offence carries reduced mitigating weight.

  • In resentencing, a finding of special circumstances can be justified by a combination of factors including mental health and cognitive impairment, youth, first-time custody, and difficult custodial conditions, even where the offending is serious.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17
- Crimes Act 1900 (NSW), ss 66A(1), 66DA(a), 66DB(a), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A, 25D, 25F, 32
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases:
- Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
- Baden v R [2020] NSWCCA 23
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- Charara v DPP (2001) 120 A Crim R 255; [2001] NSWCA 140
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- JA v R [2021] NSWCCA 10
- R v Elliott and Blessington [2006] NSWCCA 305
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- DB v The King [