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Court of Criminal Appeal 19 November 2025

BB v R

[2025] NSWCCA 195

Sexual offencesDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE DOMESTIC VIOLENCE NO POINT OF PRINCIPLE LEAVE TO APPEAL GRANTED

Citation: BB v R [2025] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 19 November 2025
Judges: Payne JA; Sweeney J; Coleman J

Background

The applicant, referred to as BB, was sentenced in the District Court in February 2025 for one offence of sexual intercourse without consent under s 61(I) of the Crimes Act 1900 (NSW). A second offence of the same character was taken into account on a Form 1. The maximum penalty for the principal offence was 14 years imprisonment, with a standard non-parole period of 7 years.

The offending occurred in August 2023 against BB's former partner of ten years, with whom he shared two young children. After their separation, BB continued to seek contact with the victim. On the morning of 20 August 2023, while caring for the children at the victim's home, BB entered her bedroom and sexually assaulted her despite her repeated verbal and physical refusals. The assault ended only when one of the children came into the room.

BB was sentenced to 3 years and 10 months imprisonment, with a non-parole period of 2 years and 7 months. He sought leave to appeal on three grounds, arguing errors in the application of the guilty plea discount, a denial of procedural fairness regarding the breach of trust finding, and double counting of aggravating factors.

  • Whether the sentencing judge erred in applying, or failed to give adequate reasons for, the 25% guilty plea discount
  • Whether the sentencing judge denied BB procedural fairness by finding that the offending was aggravated by a breach of trust, where that finding was not squarely raised at the sentencing hearing
  • Whether the sentencing judge double counted the aggravating factors of breach of trust and the offence occurring in the victim's home, given that BB's access to the home arose from their co-parenting arrangements

Decision

On Ground 1, the Court of Criminal Appeal found no demonstrated error in the application of the guilty plea discount. The sentencing judge had identified a 25% discount and the Court was satisfied the discount was properly reflected in the sentence imposed.

On Ground 2, the Court accepted that the breach of trust finding had not been prominently agitated by the Crown at the sentencing hearing. However, the Court found that the facts underpinning the finding were squarely before the sentencing judge and were, in substance, addressed by the defence in its written submissions. Because BB had a meaningful opportunity to address the relevant factual matters, any technical procedural shortcoming did not cause actual unfairness.

On Ground 3, the Court rejected the submission that breach of trust and the location of the offence were coterminous, or effectively the same aggravating factor, in the circumstances of this case. The breach of trust arose from the victim's ongoing reliance on BB in connection with their shared parenting arrangements, and that trust would have been violated wherever the assault occurred. The fact that the assault took place in the victim's own home was a separate and additional aggravating matter, reflecting the distinct violation of her reasonable expectation of safety in her own home. The Court found no double counting.

Leave to appeal was granted in the interests of finality, but the appeal was dismissed on all three grounds.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Breach of trust arising from a co-parenting relationship and the aggravating circumstance of an offence occurring in the victim's home are capable of being distinct aggravating factors, even where the accused's access to the home was itself a product of those co-parenting arrangements.
  • No procedural fairness denial arises where the facts underlying an aggravating finding were before the sentencing court and the defence had a meaningful opportunity to address them, even if the specific aggravating characterisation was not prominently flagged by the prosecution.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a guilty plea discount is not shown to be erroneous merely because the applicant asserts the arithmetic is opaque, provided the judge has identified the discount and the sentence is consistent with its application.
  • A sentence of 3 years and 10 months (non-parole period of 2 years and 7 months) for a domestic violence sexual assault approaching the mid-range of objective seriousness, with a guilty plea and relevant subjective circumstances including a mental health diagnosis and alcohol dependence, was upheld without alteration.
  • The decision carries no point of principle and turns on its particular facts, as noted in the catchwords.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61(I)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 25F

Cases:
- Akkawi v R [2012] NSWCCA 11
- Baydoun v R [2024] NSWCCA 65
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Carl v R [2023] NSWCCA 190
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
- Sampson v R [2025] NSWCCA 239
- Stubbings v R [2023] NSWCCA 69