BC v R (No 2)

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.

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.

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.

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: