BIP v R [2011] NSWCCA 224

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BIP v R [2011] NSWCCA 224 Hearing dates: 20 September 2011 Decision date: 14 October 2011 Before: BATHURST CJ at 1 JAMES J at 2 HOEBEN J at 3 Decision: Leave to appeal granted. The appeal is allowed. The sentences imposed by her Honour on 13 August 2010 are quashed and in lieu thereof the applicant is sentenced as follows: i) In relation to count 1, the applicant is sentenced to a fixed term of 2 years to commence on 27 October 2009 and to expire on 26 October 2011. ii) In respect of count 6, the applicant is sentenced to a fixed term of 2 years to commence on 27 October 2010 and to expire on 26 October 2012. iii) In relation to count 5, the applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years commencing 27 April 2012 and expiring 26 April 2015 with a balance of term of 2 years expiring 26 April 2017. iv) In relation to count 3, the applicant is sentenced to a term of imprisonment of 8 years and 6 months with a non-parole period of 4 years commencing 27 April 2014 and expiring 26 April 2018 with a balance of term of 4 1/2 years expiring 26 October 2022. Catchwords: CRIMINAL LAW - sentence appeal - offences of aggravated act of indecency and aggravated sexual intercourse to a person under the age of 16 - sentencing judge taking into account matters that were not part of the agreed facts - inconsistency of approach to similar offences - taking into account as aggravating factors matters which were part of the offence - need to resentence Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: EK v R [2010] NSWCCA 199 Ingham v R [2011] NSWCCA 88 Mirza v R [2007] NSWCCA 248 R v Comert [2004] NSWCCA 125 R v Henry & Ors [1999] NSWCCA 111, 46 NSWLR 346 R v Mitchell [2007] NSWCCA 296 Veen v R (No 2) (1988) 164 CLR 465 at 473 Waters v R [2007] NSWCCA 219 Category: Principal judgment Parties: BIP - Applicant Regina - Respondent Crown Representation: Mr M Ramage QC - Applicant Ms V Lydiard - Respondent Crown Jeffreys Lawyers - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2009/242259 Decision under appeal Citation: --- Date of Decision: 2010-08-13 00:00:00 Before: Syme DCJ File Number(s): 2009/00242259