BB v R

1. [1]

   PAYNE JA: I agree with Sweeney J.

2. [2]

   SWEENEY J: The applicant, who will be referred to as BB, seeks leave to appeal against the sentence imposed upon him by her Honour Judge Shead SC in the District Court on 14 February 2025.

3. [3]

   BB was sentenced for one offence of sexual intercourse without consent, contrary to s 61(I) of the Crimes Act 1900 (NSW), which was committed on 20 August 2023 and which had a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years prescribed. He had pleaded guilty to that offence in the Local Court. Another offence of sexual intercourse without consent, on a Form 1, was taken into account in sentencing him. BB was sentenced to imprisonment for 3 years and 10 months, with a non-parole period of 2 years and 7 months. The sentence commenced on 1 September 2023. The non-parole period will expire on 31 March 2026 and the sentence on 30 June 2027.

4. [4]

   BB seeks to rely on three grounds of appeal:

5. [5]

   The facts of the offences were as follows. The victim of the offences was BB’s former partner. They had been in a relationship for 10 years and had two children aged 6 and 4 years. They separated in April 2023. BB moved out of the family home and the victim and their children remained in the home. BB visited his children two to three times per week, as arranged between him and the victim. Arrangements for BB to visit his children and for care of the children were organised by text messages between BB and the victim.

6. [6]

   After the separation BB sent the victim many text messages and put a note on her car windscreen seeking to rekindle the relationship. She asked him to stop sending messages and confirmed that she did not wish to rekindle the relationship. On 9 August 2023 the victim arranged to communicate with BB by a co-parenting mobile phone application. Her aim was to reduce the frequency of communication between her and BB. BB continued to maintain a high frequency of communication with the victim through the application.

7. [7]

   On Saturday 19 August 2023 the victim arranged to spend some time with friends, and for BB to care for the children while she was out. BB collected his children from their home. Later in the day he returned to the victim’s home to care for the children there in the evening. BB continued to send messages to the victim through the application while she was out with her friends, including asking advice about one of the children who was sick and asking about the victim’s movements.

8. [8]

   Beginning at 12:24AM on 20 August 2023 BB sent a number of messages to the victim, some of a sexual nature and some indicating a desire to continue the relationship and remain in the family. The victim did not reply to those messages.

9. [9]

   When the victim arrived home about 3AM she saw two empty bottles of vodka in the kitchen. BB was asleep in one of the children’s rooms and the children were asleep in the victim’s bed. She got into bed and fell asleep.

10. [10]

    At midday, BB went into the victim’s bedroom. He had a shower in the ensuite bathroom. The victim had been sleeping during the morning and she was lying in bed.

11. [11]

    After showering BB crawled on to the victim’s bed, took hold of her knees and manoeuvred her body so she was lying on her back. He indicated an intention to perform oral sex on her. She said no. He pulled down her leggings. She said “No I don’t want you to.” He again said he was going to perform oral sex on her and she said “No I don’t want you to.” BB then lifted the victim’s legs into the air and performed oral sex on her for about five minutes, during which she continued to tell him to stop and he said “I’ve missed this.” That was the offence on the Form 1. His grip on her legs caused her pain and caused her to cry out.

12. [12]

    He removed one of the victim’s legs from her leggings. He pressed her thighs against her chest and inserted his penis into her vagina. She told him to stop but he persisted. BB tried to kiss the victim. She turned her head to avoid being kissed. She tried to push him away and attempted to kick him. He pinned down her wrists and then went back to holding her legs. After 2 to 3 minutes the bedroom door opened and one of the children came into the room. BB let go of the victim’s legs. She pulled the bed coverings over her. BB yelled at the child and the child left the room.

13. [13]

    The victim then asked BB what he had done, that she had told him to stop and he did not. He said he did it because he found her attractive, he was frustrated because she did not respond to his messages of the night before and he felt like he was losing her to a “new guy”. She repeated that she had asked him to stop and he did not. She said “You know what that’s called” and he said “I know, I know.”

14. [14]

    An older child of the victim’s then came into the room and asked for a lift and BB offered to drive the child and left.

15. [15]

    The victim then sent messages to some friends, met them and disclosed what had happened. She then told police and was taken to hospital for tests.

16. [16]

    On 31 August 2023 BB called the victim on a private phone number. She told him she did not want to talk. Later that day he dropped a ring for her on the front porch and told her in a phone call he had done so.

17. [17]

    On 1 September the victim telephoned BB and the call was recorded by police. BB asked was there a chance for him to fight for the relationship. The victim said no, especially after what happened. BB said he had no excuse, he was hoping to get her “in the mood” as he had done previously. She repeated that she had said stop more than once and had resisted his taking her tights off.

18. [18]

    In assessing the objective seriousness of the offence as approaching the mid-range of seriousness her Honour took into account that the offence occurred in the context of BB failing to accept that his relationship with the victim was over and his not respecting her position about that. Her Honour found that the offending was not wholly opportunistic but that BB had a continuing sexual interest in the victim and chose to act on that, although her Honour accepted there was no premeditation or significant degree of planning and that BB was not motivated to humiliate the victim. Her Honour found that BB had actual knowledge that the victim did not consent to the sexual intercourse and that she clearly expressed her lack of consent, verbally and physically, during the offence but BB continued the assault. Her Honour found the offending was not fleeting and ceased only because a child came into the room. Her Honour took into account the form of forced intercourse.

19. [19]

    Her Honour took into account the domestic violence character of the offence and that the harm to the victim was substantial, though not atypical for such offences.

20. [20]

    Relevant to Ground 3 her Honour found that the offence was aggravated by the fact that it occurred in the victim’s home. Her Honour said:

21. [21]

    Relevant to Grounds 2 and 3 her Honour stated:

22. [22]

    Her Honour took into account BB’s subjective circumstances as follows. He was 32 years old at the time of the offences and 34 at the time of sentence. He acknowledged a history of abusing drugs and alcohol. After his relationship with the victim ended in April 2023 he was “in denial” about that and consumed alcohol excessively, although he was also able to work. Psychologist Sam Albassit said BB had been exhibiting symptomatology of Depressive Disorder and Persistent Adjustment Disorder for approximately 4 years (his report having been prepared in October 2024) and developed a maladaptive abuse of alcohol to deal with his emotional disturbance. Mr Albassit said that BB’s alcohol dependence was active at the time of the offending. It was in remission when BB was interviewed in October 2024. Her Honour noted Mr Albassit’s opinion that there appeared to be a correlation between BB’s mental health impairments and his offending. Counsel for BB expressly stated that he did not seek to advance any submission relying on the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. Counsel submitted that BB’s substance abuse informed his prospects of rehabilitation and risks of reoffending. Her Honour stated that notwithstanding BB’s position she had taken into account his mental health conditions at the time of the offending in a general sense and took them into account also when assessing his rehabilitation and prospects of reoffending, accepting a submission that he had developed insight into his offending.

23. [23]

    Her Honour stated that she gave significant weight to BB’s having no record of previous convictions, and took into account his prior good character in mitigation. Her Honour found BB was unlikely to reoffend, had demonstrated genuine remorse for his offending and had “very good” prospects of rehabilitation.

24. [24]

    Her Honour found special circumstances in this being BB’s first time in custody and the need to promote his rehabilitation. The non-parole period was approximately 66% of the sentence.

25. [25]

    Her Honour heard the sentence proceedings on 29 October 2024 and sentenced BB on 14 February 2025.

Ground 1 – asserted error in the sentencing discount

1. [26]

   Relevant to Ground 1 her Honour noted the submission on behalf of BB, with which the Crown agreed, that pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Crimes (Sentencing Procedure) Act”) he was entitled to a reduction of 25% of his sentence for his plea of guilty at the earliest opportunity in the Local Court. Her Honour stated “I apply that discount.”

2. [27]

   Counsel for BB submitted this Court should infer that the sentencing judge either made a mathematical error in applying the 25% discount, or did not apply the discount to an undiscounted starting point. He submitted that if the starting point was 5 years, an application of the 25% discount would have resulted in a sentence of 3 years and 9 months. Otherwise, applying the 25% discount to the sentence imposed of 3 years and 10 months imprisonment gave rise to a starting point of 5 years, 1 month and 10 days, which he submitted would be anomalous and demanding of some explanation. Further, counsel submitted that if her Honour took the 25% discount into account as part of an instinctive synthesis then that was an error contrary to the provisions of ss 25D and 25F of the Crimes (Sentencing Procedure) Act, which provide for mandatory and fixed sentencing discounts for guilty pleas, as this Court stated in Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17; Stubbings v R [2023] NSWCCA 69; Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81; Baydoun v R [2024] NSWCCA 65 and Sampson v R [2025] NSWCCA 239.

3. [28]

   Counsel acknowledged that the statutory scheme for discounts for guilty pleas does not require the sentencing judge to state the sentence which would have been imposed without the discount, but submitted that such a practice would bring greater transparency to the application of sentencing discounts.

4. [29]

   The Crown submitted that when her Honour said that she had applied 25% discount, her Honour should be accepted as having done so. The Crown submitted that the starting point of the sentence is ascertainable by mathematical calculation and that error cannot be inferred from an unusual starting point or endpoint of a sentence, particularly where the sentencing judge has explicitly stated that the mandatory discount was applied.

5. [30]

   The Crown emphasised that there is no requirement of a sentencing judge in Div 1A, Pt 3 of the Crimes (Sentencing Procedure) Act, which contains the provisions for sentencing discounts for guilty pleas, to specify the starting point of a sentence. The Crown submitted that the applicant has not demonstrated the errors he asserted.

Consideration

1. [31]

   A person who is going to spend time in custody should understand how the sentence was reached and that he received the discount of his sentence for his plea of guilty to which he is entitled.

2. [32]

   I accept that BB may feel concern about a lack of clarity in how his sentence was arrived at.

3. [33]

   However, I am unable to discern that her Honour erred, and if so how, particularly when her Honour acknowledged the 25% discount and stated she had applied it. To adopt a starting point of years, months, weeks and days seems an unusual approach, but it does not appear to be contrary to any provision or principle, although this Court has deprecated final sentences being pronounced in such terms: Akkawi v R [2012] NSWCCA 11.

4. [34]

   Ground 1 has not been established.

Ground 2 – there was a denial of procedural fairness in finding that the offending was aggravated by a breach of trust

1. [35]

   About halfway through delivering her Remarks on Sentence, while her Honour was referring to statutory aggravating factors, her Honour stopped and said:

2. [36]

   Later in her Remarks on Sentence her Honour made the finding to which I have referred:

3. [37]

   That finding appeared in the section of her Honour’s Remarks on Sentence dealing with the assessment of the objective seriousness of the offence for sentence.

4. [38]

   Towards the end of her Honour’s Remarks on Sentence, before her Honour pronounced sentence, she asked both counsel whether there was anything which she had misstated or overlooked. Her Honour had the following discussion with counsel for BB:

5. [39]

   Neither the Crown Prosecutor or counsel for BB made any submission to Judge Shead SC, either in writing or orally, about the offence being more serious because of a breach of trust.

6. [40]

   Counsel for BB accepted that her Honour did raise the issue of breach of trust, during and after her Remarks on Sentence, but submitted that when neither counsel had made submissions about breach of trust and the applicant had not, through his counsel, accepted there was a breach of trust, he was denied the opportunity to address the scope of the relationship of trust between BB and the victim and how it should be taken into account in the sentence. Further, and related to Ground 3, BB submitted that he was deprived of the opportunity of submitting to Judge Shead SC that to take into account that the offence was aggravated by it occurring in the victim’s home and in breach of their relationship of trust, her Honour double counted what was essentially the same factor.

7. [41]

   The Crown Prosecutor before Judge Shead SC did not make a submission about a breach of trust. However, the Crown submitted that that did not stop her Honour from taking that matter into account. The Crown submitted that the applicant’s counsel did have an opportunity to be heard so he was not denied procedural fairness, although the Crown accepted it would have been preferable for the matter to have been dealt with in the sentence proceedings.

8. [42]

   Counsel who appeared when her Honour delivered her Remarks on Sentence and raised the issue of breach of trust was the same counsel who had represented BB in the sentence proceedings. He thought that he had submitted that a breach of trust was part of the “milieu” of assessing the objective seriousness. Clearly that memory was not accurate.

9. [43]

   The issue is whether BB suffered unfairness: Weir v R [2011] NSWCCA 123 per Garling J at [64]-[67]; Carl v R [2023] NSWCCA 190 at [73]. What happened in these proceedings was not ideal. It may have occurred in part because written submissions are usually provided to the District Court before the sentence hearing, and it appears that quite often the sentence hearings in which oral submissions are made and issues identified are quite brief.

10. [44]

    The preferable course would be that matters such as this, relevant to the sentence, be raised during the sentence hearing, and if it was overlooked in the hearing and sentence reserved, then it would be preferable for the judge to raise the matter with the parties in the intervening period and ask whether the parties wish to make submissions on the topic.

11. [45]

    However, because counsel for BB considered that he had the opportunity to address the issue, and because I am not persuaded that, as the applicant asserts in Ground 3, the factors of the offence occurring in the victim’s home and being in breach of the trust she had placed in BB in their childcare arrangements, are the same factor, I do not think that BB suffered unfairness in the way the issue was dealt with in his sentence.

12. [46]

    Ground 2 is not made out.

Ground 3 – the sentencing judge double counted as aggravating factors that the offence occurred in the victim’s home and involved breach of trust

1. [47]

   I have set out her Honour’s relevant findings in relation to both the offence being aggravated by occurring the victim’s home and in breach of the trust she placed in BB at [20] and [21]. Counsel for BB submitted that the scope of the relationship of trust between the victim and BB was fact specific. He submitted that because the altered relationship between the victim and BB after their separation involved arrangements for BB to care for their children in the victim’s home the breach of trust was coterminous with the fact that the offence occurred in the home of the victim.

2. [48]

   The Crown submitted that it was not double counting to consider the location where the offence occurred and the relationship between the parties.

3. [49]

   In the factual circumstances of this case her Honour appropriately explained how she took into account the two factors, which were distinct in this case. Although their personal relationship had ended when they separated, the victim was required to maintain a relationship with BB in connection with the care of, and his contact with, their children. That ongoing relationship required them to be in contact. BB breached the trust which the victim had placed in him by permitting him to be in contact with her about their children, by ignoring her not wanting to have sexual contact with him and by sexually assaulting her in disregard of her requests of him to stop and her personal safety. Wherever that assault had occurred it would have been a breach of the trust she had placed in him. That it happened in her home was a separate and further aggravating factor.

4. [50]

   Ground 3 is not made out.

5. [51]

   In the interests of finality I would grant BB leave to appeal. I would dismiss the appeal.

Orders

1. [52]

   Therefore I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [53]

   COLEMAN J: I agree with Sweeney J.