BC v The Queen (No 2)

[2019] NSWCCA 142

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

BC v R (No 2) [2019] NSWCCA 142

Hearing dates:

On the papers

Decision date:

01 July 2019

Before:

Leeming JA; Ierace J; Hidden AJ

Decision:

(1) Quash the sentence imposed on 18 May 2017.

 

(2) Remit the proceedings to the District Court for the purpose of resentencing the applicant.

 (3) The matter will be listed for mention in the District Court at Newcastle on Thursday, 18 July 2019.

Catchwords:

PROCEDURE – remitter – appellant convicted of multiple child sexual assault offences – aggregate sentence imposed – appeal against conviction – three convictions quashed but appeal otherwise dismissed – remitter to District Court for resentencing

Cases Cited:

BC v R [2019] NSWCCA 111

Category:

Consequential orders (other than Costs)

Parties:

BC (Applicant)
Regina (Respondent)

Representation:

Counsel:
J Stratton SC with T Hennessy (Applicant)
B Baker (Respondent)

  Solicitors:
Laith Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2014/19938; 2014/19940; 2014/175052

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

07 December 2016

Before:

Her Honour Judge Hock

File Number(s):

2014/19938; 2014/19940; 2014/175052

Judgment

1. THE COURT: By judgment delivered on 5 June 2019, this Court quashed the applicant’s convictions for counts 1 to 3 and entered verdicts of acquittal for those counts, but otherwise dismissed the applicant’s appeal against conviction on counts 4 to 20: BC v R [2019] NSWCCA 111. The applicant is presently serving an aggregate sentence imposed after trial of 14 years with a non-parole period of 10 years and 6 months. The consequence of the partial success of his appeal is that it is necessary to resentence him, based on his conviction for counts 4 to 20.

2. In the circumstances explained at [107]-[111] of this Court’s earlier judgment, no submissions were received at the earlier hearing on resentencing in the events which have eventuated. Conscious of that, this Court proposed an aggregate sentence of 13 years with a non-parole period of 9 years and 9 months. However, rather than quashing the earlier sentence and imposing a new sentence, this Court invited further submissions, including on whether there was an application for a further hearing.

3. Further submissions were supplied on 20, 25 and 26 June 2019. The applicant has applied for a further oral hearing, and has indicated an intention to adduce further evidence for the purpose of resentencing. That evidence has not been provided to the Court. It is not known whether it is controversial, whether the Crown will also seek to adduce further evidence, and whether there will be any cross-examination. The applicant was originally sentenced in May 2017, more than two years ago, and it is possible that there will be materially different evidence available on resentencing than was before the primary judge.

4. The applicant consents, and the Crown does not oppose, the matter being remitted to the District Court. That is the appropriate course to adopt in this particular case. Accordingly, this Court makes the following further orders:

1. Quash the sentence imposed on 18 May 2017.

2. Remit the proceedings to the District Court for the purpose of resentencing the applicant.

3. The matter will be listed for mention in the District Court at Newcastle on Thursday, 18 July 2019.

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Amendments

01 July 2019 - Order 1: "8 May" changed to "18 May".