BM v R [2019] NSWCCA 223

BM v R [2019] NSWCCA 223

The sentencing judge erred by failing to take into account, in assessing the objective seriousness of counts 1 and 2, the applicant's age (correctly determined as 13 years and 10 months) and mental condition which were causally connected with and materially contributed to the offending. This error warranted intervention and led to re-sentencing with proper regard to these factors, reducing the objective seriousness to at or near the bottom of the range for offences of this kind.

Parties
Applicant: BM; Respondent: Regina
Jurisdiction
Australia
Judgment Date
27 September 2019
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal allowed. Application for leave to appeal allowed. Aggregate sentence for counts 1 and 2 set aside. Applicant resentenced.
Legal Topics
Appeal Against Sentence, Objective Seriousness, Child Sexual Offences, Mental Disorder and Sentencing, Special Circumstances, Non Parole Period, Aggregate Sentencing
Criminal Law Appeal Against Sentence Objective Seriousness Child Sexual Offences Mental Disorder and Sentencing Special Circumstances Non Parole Period Aggregate Sentencing

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Parties

BM

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentencing judge failed to properly assess the objective seriousness of the offences in counts 1 and 2
  2. 2 Whether the indicative and aggregate sentences imposed for counts 1 and 2 were manifestly excessive

Ratio Decidendi

The sentencing judge erred by failing to take into account, in assessing the objective seriousness of counts 1 and 2, the applicant's age (correctly determined as 13 years and 10 months) and mental condition which were causally connected with and materially contributed to the offending. This error warranted intervention and led to re-sentencing with proper regard to these factors, reducing the objective seriousness to at or near the bottom of the range for offences of this kind.

Court Disposition

Appeal allowed. Application for leave to appeal allowed. Aggregate sentence for counts 1 and 2 set aside. Applicant resentenced.

Orders

  • Allow the application for leave to appeal.
  • Appeal allowed.