BT v R [2012] NSWCCA 128

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BT v R [2012] NSWCCA 128 Hearing dates: 8 June 2012 Decision date: 10 July 2012 Before: McClellan CJ at CL at [1] Johnson J at [2] Adamson J at [3] Decision: 1. Grant leave to appeal. 2. Order that the appeal be dismissed. Catchwords: CRIMINAL LAW - sentence appeal - sexual assault offences - whether sentence manifestly excessive Legislation Cited: - Crimes Act 1900 Cases Cited: - Muldrock v R [2011] HCA 39; 244 CLR 124 - R v Hemsley [2004] NSWCCA 228 - R v Wilson [2005] NSWCCA 219 - R v Wright (1997) 93 A Crim R 48 Category: Principal judgment Parties: BT (Applicant) Regina (Respondent) Representation: Counsel: C Smith (Applicant) PG Ingram SC (Respondent) Solicitors: Legal Aid NSW (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent) File Number(s): 2009/45312; 2009/152326 Decision under appeal Date of Decision: 2010-06-18 00:00:00 Before: Ellis DCJ File Number(s): 2009/45312; 2009/152326

Judgment 1McCLELLAN CJ at CL: I agree with Adamson J. 2JOHNSON J: I agree with Adamson J. 3ADAMSON J: On 18 June 2010, the applicant (BT) was sentenced after plea of guilty to the following three counts: (1)Aggravated indecent assault, contrary to s 61M of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment and a standard non-parole period of five years; (2)Aggravated sexual intercourse inflicting actual bodily harm, contrary to s 61JA of the Crimes Act, which carries a maximum penalty of life imprisonment and a standard non-parole period of fifteen years; (3)Sexual intercourse without consent, contrary to s 61I of the Crimes Act, which carries a maximum penalty of fourteen years imprisonment and a standard non-parole period of seven years. 4The standard non-parole periods did not apply to the applicant as he was under the age of 18 years at the time of the offences: s 54D(3) Crimes (Sentencing Procedure) Act 1999; BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 388 [36]. 5In respect of count 3 he was sentenced to a term of 5 ½ years, with a three-year non-parole period to date from 3 March 2009. In respect of count 1 he was sentenced to a term of 2 ½ years with a one-year non-parole period to date from 3 March 2011. In respect of count 2, he was sentenced to a term of eight years with a three-year non-parole period. The total term for all three offences is ten years with a five-year non-parole period, with the applicant eligible to apply for release to parole on 2 March 2014. 6Counts 1 and 2 occurred within the same period on the evening of 7 - 8 March 2009. Count 3 occurred in a separate incident on the following evening, 8 March 2009. 7The applicant seeks leave to appeal on two grounds: first, that the sentence imposed on count 2 is manifestly excessive; and secondly, that the total effective sentence is excessive.