BIP v R [2011] NSWCCA 224

BIP v R [2011] NSWCCA 224

The sentencing judge erred cumulatively in assessing aggravating factors not supported by evidence, in considering non-agreed facts, and in finding offences at above mid-range criminality without clear reasons, warranting a resentencing of the applicant to reflect only supported aggravating and mitigating circumstances.

Jurisdiction
Australia
Judgment Date
14 October 2011
Procedural Posture
Criminal Appeal / Sentencing Appeal; Leave to Appeal Granted; Resentence Imposed
Outcome
Leave to appeal granted; appeal allowed; sentences quashed and new sentences imposed.
Legal Topics
['offences of Aggravated Indecency' 'aggravated Sexual Intercourse' 'sentencing Principles' 'severity of Sentence' 'objective and Subjective Criminality' 'aggravating and Mitigating Factors' 'appeal Against Sentence']
['criminal Law'] ['offences of Aggravated Indecency' 'aggravated Sexual Intercourse' 'sentencing Principles' 'severity of Sentence' 'objective and Subjective Criminality' 'aggravating and Mitigating Factors' 'appeal Against Sentence']

Case Brief

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Procedural Posture

Criminal Appeal / Sentencing Appeal; Leave to Appeal Granted; Resentence Imposed

Legal Issues

  1. 1 ['Were the sentences imposed unduly harsh and severe?' 'Did the sentencing judge err in assessing aggravation and mitigation?' 'Was there error in considering factors not part of agreed facts?' 'Should certain factors have been counted as aggravating or mitigating?' 'Should the applicant be resentenced?']

Ratio Decidendi

The sentencing judge erred cumulatively in assessing aggravating factors not supported by evidence, in considering non-agreed facts, and in finding offences at above mid-range criminality without clear reasons, warranting a resentencing of the applicant to reflect only supported aggravating and mitigating circumstances.

Court Disposition

Leave to appeal granted; appeal allowed; sentences quashed and new sentences imposed.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Sentences imposed on 13 August 2010 quashed.' 'New sentences: count 1 - fixed term 2 years (27 October 2009 - 26 October 2011); count 6 - fixed term 2 years (27 October 2010 - 26 October 2012); count 5 - imprisonment 5 years, non-parole period 3 years (27 April 2012 -...