BB v R [2024] NSWCCA 13

BB v R [2024] NSWCCA 13

The sentencing judge erred in describing Counts 3, 4, 6 and 7 as serious children's indictable offences, but the error did not vitiate the sentencing discretion because the applicant was aged 24 when charged and therefore Pt 2, Div 4 of the Children (Criminal Proceedings) Act 1987 (NSW) did not apply; the offences had to be dealt with according to law in any event. The alleged lost opportunity to be sentenced under Pt 3, Div 4 was not a mitigating factor because counsel had disavowed reliance on it below and, given the seriousness, number and escalation of the offences, there was no practical possibility that Counts 2-8 would have been dealt with otherwise than according to law. Having...

Jurisdiction
Australia
Judgment Date
19 February 2024
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['aggregate Sentence' 'child Sex Offences' "serious Children's Indictable Offence" 'children (criminal Proceedings) Act 1987 (nsw)' "lost Opportunity for Children's Court Sentencing Regime" 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Procedure'] ['aggregate Sentence' 'child Sex Offences' "serious Children's Indictable Offence" 'children (criminal Proceedings) Act 1987 (nsw)' "lost Opportunity for Children's Court Sentencing Regime" 'manifest Excess']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in finding that Counts 3, 4, 6 and 7 were serious children's indictable offences within s 3 of the Children (Criminal Proceedings) Act 1987 (NSW)." 'Whether the sentencing judge erred by failing to take into account that, had the applicant been prosecuted earlier, a sentencing regime under Pt 3, Div 4 of the Children (Criminal Proceedings) Act 1987 (NSW) may have been available for Counts 2-8.' "Whether the aggregate sentence of 5 years' imprisonment with a non-parole period of 3 years was manifestly excessive."]

Ratio Decidendi

The sentencing judge erred in describing Counts 3, 4, 6 and 7 as serious children's indictable offences, but the error did not vitiate the sentencing discretion because the applicant was aged 24 when charged and therefore Pt 2, Div 4 of the Children (Criminal Proceedings) Act 1987 (NSW) did not apply; the offences had to be dealt with according to law in any event. The alleged lost opportunity to be sentenced under Pt 3, Div 4 was not a mitigating factor because counsel had disavowed reliance on it below and, given the seriousness, number and escalation of the offences, there was no practical possibility that Counts 2-8 would have been dealt with otherwise than according to law. Having...

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal dismissed.']