BAP v R [2024] NSWCCA 206

BAP v R [2024] NSWCCA 206

The sentencing judge failed to fully engage with the sentencing principles relevant to the applicant's age at the time of Count 2, a serious offence committed as a child, particularly as to the reduction of moral culpability and emphasis on rehabilitation; this constituted error requiring re-sentencing. The other grounds were rejected as the judge adequately accounted for mental capacity, did not err in refusing an additional s 22A discount, and was entitled to withhold leniency for Count 2 in light of subsequent serious offending.

Parties
Applicant: BAP; Respondent: Rex
Jurisdiction
Australia
Judgment Date
08 November 2024
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Judgment on Appeal Against Sentence
Outcome
Appeal upheld in part; applicant re-sentenced.
Legal Topics
Sentencing, Appeal Against Sentence, Child Sexual Offences, Sentencing Principles for Youth, Mental Health and Cognitive Impairment in Sentencing
Criminal Law Sentencing Appeal Against Sentence Child Sexual Offences Sentencing Principles for Youth Mental Health and Cognitive Impairment in Sentencing

Case Brief

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Parties

BAP

Applicant

Rex

Respondent

Procedural Posture

Criminal Appeal / Court of Criminal Appeal Judgment on Appeal Against Sentence

Legal Issues

  1. 1 Whether sentencing judge failed to properly consider applicant's youth in sentencing (Ground 3(a))
  2. 2 Whether sentencing judge failed to properly take into account applicant's mental capacity (Ground 3(b))
  3. 3 Whether sentencing judge failed to consider s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) regarding facilitation of administration of justice (Ground 1)

Ratio Decidendi

The sentencing judge failed to fully engage with the sentencing principles relevant to the applicant's age at the time of Count 2, a serious offence committed as a child, particularly as to the reduction of moral culpability and emphasis on rehabilitation; this constituted error requiring re-sentencing. The other grounds were rejected as the judge adequately accounted for mental capacity, did not err in refusing an additional s 22A discount, and was entitled to withhold leniency for Count 2 in light of subsequent serious offending.

Court Disposition

Appeal upheld in part; applicant re-sentenced.

Orders

  • The time for bringing the appeal is extended under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
  • Leave to appeal granted.