BM v R [2023] NSWCCA 68

BM v R [2023] NSWCCA 68

The sentencing judge did not apply the current maximum penalty of life imprisonment or standard non-parole period of 15 years to Counts 2 and 3; the reasons, read as a whole, showed conscious application of the 20-year maximum penalty applicable at the time of the offending. The judge considered the relevant circumstances, including digital penetration, the victim's age, repeated offending, breach of trust, location and harm, and was not required to specify the individual weight of each factor. The assessments of Count 2 as slightly below mid-range and Count 3 as about mid-range were open. The aggregate sentence, with special circumstances and a non-parole period of about 60% of the head...

Jurisdiction
Australia
Judgment Date
27 March 2023
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['sexual Intercourse With a Child' 'objective Seriousness' 'manifest Excess' 'aggregate Sentence' 'special Circumstances' 'form 1 Offences' 'non Parole Period']
['criminal Law' 'sentencing'] ['sexual Intercourse With a Child' 'objective Seriousness' 'manifest Excess' 'aggregate Sentence' 'special Circumstances' 'form 1 Offences' 'non Parole Period']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of Counts 2 and 3.' 'Whether the sentencing judge erroneously sentenced by reference to the current maximum penalty and standard non-parole period for s 66A rather than the maximum penalty at the time of offending.' 'Whether the sentencing judge was required to state the extent to which each factor contributed to the assessment of objective seriousness.' 'Whether the aggregate sentence was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not apply the current maximum penalty of life imprisonment or standard non-parole period of 15 years to Counts 2 and 3; the reasons, read as a whole, showed conscious application of the 20-year maximum penalty applicable at the time of the offending. The judge considered the relevant circumstances, including digital penetration, the victim's age, repeated offending, breach of trust, location and harm, and was not required to specify the individual weight of each factor. The assessments of Count 2 as slightly below mid-range and Count 3 as about mid-range were open. The aggregate sentence, with special circumstances and a non-parole period of about 60% of the head...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'The appeal is dismissed.']