BJ v R [2018] NSWCCA 231

BJ v R [2018] NSWCCA 231

Although the Crown conceded errors in the sentencing judge's approach to the mental element of s 35(2) and to treating commission in the presence of a child as an aggravating factor, the Court re-sentenced the applicant and was not satisfied that any lesser sentence was warranted in law. Given the deliberate pouring of very hot liquid on a six month old child, the extensive injuries, the victim's vulnerability, the serious breach of trust, the unexplained conduct, and the Form 1 failure to obtain appropriate medical care, a lower sentence would be manifestly inadequate.

Jurisdiction
Australia
Judgment Date
17 October 2018
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal against sentence allowed; appeal dismissed.
Legal Topics
['reckless Grievous Bodily Harm' 'failure of Person With Parental Responsibility to Care for a Child' 'form 1 Offence' 'sentencing Error' 're Sentence' 'aggravating Factors' 'extra Curial Punishment']
['criminal Law' 'sentencing'] ['reckless Grievous Bodily Harm' 'failure of Person With Parental Responsibility to Care for a Child' 'form 1 Offence' 'sentencing Error' 're Sentence' 'aggravating Factors' 'extra Curial Punishment']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge erred as to the mental element of the offence by treating recklessness as requiring realisation of the possibility of grievous bodily harm rather than actual bodily harm.' 'Whether the sentencing judge erred by taking into account, as an aggravating feature, that the offence was committed in the presence of a child.' 'On re-sentence, whether a lesser sentence was warranted in law.' "Whether restrictions on the applicant's contact with the victim should be treated as extra-curial punishment."]

Ratio Decidendi

Although the Crown conceded errors in the sentencing judge's approach to the mental element of s 35(2) and to treating commission in the presence of a child as an aggravating factor, the Court re-sentenced the applicant and was not satisfied that any lesser sentence was warranted in law. Given the deliberate pouring of very hot liquid on a six month old child, the extensive injuries, the victim's vulnerability, the serious breach of trust, the unexplained conduct, and the Form 1 failure to obtain appropriate medical care, a lower sentence would be manifestly inadequate.

Court Disposition

Leave to appeal against sentence allowed; appeal dismissed.

Orders

  • ['Leave to appeal against sentence is allowed.' 'The appeal is dismissed.']