GBB v R [2019] NSWCCA 296

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: GBB v R [2019] NSWCCA 296 Hearing dates: 22 November 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Before: Basten JA at [1]; Macfarlan JA at [67]; Campbell J at [68] Decision: (1) To the extent necessary, grant the appellant leave to appeal against his convictions on two counts of sexual intercourse with a child under the age of 10 years.

(2) Dismiss the appeal against the convictions.

(3) Grant the appellant leave to appeal against the sentence imposed on him in the District Court on 14 June 2018.

(4) Dismiss the appeal against sentence.

(5) If the grant of bail pending determination of this proceeding does not now cease pursuant to s 12(1)(b) of the Bail Act 2013 (NSW), bail is revoked.

(6) Direct that the appellant be taken into custody to serve the unserved balance of the sentence. Catchwords: CRIMINAL LAW – sexual intercourse with child under 10 – young offender – assault by halfbrother – retraction of complaint in cross-examination – finding that complainant's court evidence unreliable – counsel not informed of finding of unreliability during cross-examination – whether procedural unfairness

CRIMINAL LAW – conviction appeal – judge alone trial – judge determining reliability of evidence – failure to direct herself as to unreliability of complaint

CRIMINAL LAW – appeal – sentence – custodial sentence – offender a minor with intellectual disabilities – whether denunciation of offending inconsistent with rejection of general deterrence – whether judge took offender's vulnerabilities into account Legislation Cited: Bail Act 2013 (NSW), s 12 Children (Criminal Proceedings) Act 1987 (NSW), s 6, 10, 15A Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 8 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 12 Crimes Act 1900 (NSW), s 66A Criminal Appeal Act 1912 (NSW), s 6 Criminal Procedure Act 1986 (NSW), s 133 Criminal Procedure Legislation (Amendment) Act 1990 (NSW), Sch 1, cl 2 Evidence Act 1995 (NSW), ss 165, 165A, 165B Cases Cited: BM v R [2019] NSWCCA 223 Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49 Devaney v R [2012] NSWCCA 285 Filippou v The Queen (2015) 256 CLR 47; [2105] HCA 29 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 HT v The Queen [2019] HCA 40 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Muldrock [2012] NSWCCA 108 R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 1990 Category: Principal judgment Parties: BG (Applicant) Regina (Respondent) Representation: Counsel: E Ozen (Applicant) B Hatfield (Respondent)