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Court of Criminal Appeal 2 September 2005

R v LLM

[2005] NSWCCA 302

Assault & violenceTheft & property

Citation: R v LLM [2005] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 2 September 2005
Judges: Grove J, Hulme J, Simpson J

Background

The appellant, identified only as LLM to comply with statutory suppression requirements, was a juvenile at the time of the offences. He was convicted in the District Court of two serious offences committed in April 2003: assaulting a 17-year-old victim with intent to rob him (during which the victim was wounded), and taking and detaining a doctor without consent with the intention of forcing him to withdraw cash from an ATM (during which the victim suffered actual bodily harm). Both offences carried a maximum penalty of 25 years imprisonment.

Judge O'Reilly sentenced LLM on 18 May 2004, imposing concurrent non-parole periods of five years from the date of arrest, with full terms expressed as eight years and four months and seven and a half years respectively. His Honour identified special circumstances based on LLM's age, his prospects of rehabilitation with professional supervision, and the danger he would face in an adult prison. The sentencing judge expressed an intention to order that the sentence be served in a juvenile detention centre under s 19 of the Children (Criminal Proceedings) Act 1987.

LLM appealed the sentences. His co-offender VL brought a separate appeal heard on the same day, with judgment delivered simultaneously.

  • Whether the sentences imposed were manifestly excessive, having regard to the principles governing sentencing of children under s 6 of the Children (Criminal Proceedings) Act 1987
  • Whether the sentencing judge correctly applied the standard non-parole period provisions to a matter resolved by guilty plea
  • Whether the balance of term (the time remaining after the non-parole period) as expressed in the orders properly reflected the sentencing judge's stated intentions
  • Whether the Court, in re-sentencing, was required to repeat the finding of special circumstances and make the s 19 order

Decision

Hulme J (with whom Grove J and Simpson J agreed) accepted that the sentences themselves were not manifestly excessive. Noting this Court's approach in R v Henry, his Honour concluded that even if some reduction in the individual sentence lengths might have been arguable, the sentences were appropriate given the serious and predatory nature of the offending. Both offences involved coordinated group attacks on vulnerable victims, including a 17-year-old and his mother, and a lone doctor accosted at knifepoint and forced to attend an ATM.

The Court identified an error in the way the balance of term had been calculated. The sentencing judge had expressed the full term as the non-parole period plus one-third, but the actual figures recorded did not achieve that result with precision. The Court found that this arithmetic inconsistency had to be corrected so that the sentences properly reflected what O'Reilly DCJ had plainly intended.

Because the Court was re-sentencing, it was required to give effect to the full sentencing regime, including the s 19 order that LLM serve his sentence as a juvenile offender until age 21. Although the original remarks on sentence indicated this was intended, the formal order had not clearly been made. The Court remedied this on re-sentence.

Grove J added briefly that, while full weight must be given to the principles governing youth justice, the gravity of the violence and threats against unprotected victims meant no less severe sentence was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Judge O'Reilly on 18 May 2004 quashed
  • In substitution, for each of the two offences: a non-parole period of five years from 24 April 2003, and a balance of term of one year and eight months
  • Order under s 19 of the Children (Criminal Proceedings) Act 1987 that the appellant serve his sentence as a juvenile offender until he attains the age of 21
  • Parole eligibility date recorded as 24 April 2008

Key Takeaways

  • Under s 11 of the Children (Criminal Proceedings) Act 1987, parties who are juveniles must not be identified in ways that disclose their identity, requiring the use of initials throughout the judgment.
  • A finding of special circumstances made at first instance for the purposes of s 19 of the Children (Criminal Proceedings) Act 1987 should be replicated by an appellate court when it re-sentences, where that finding was unchallenged.
  • Where a sentencing judge's stated arithmetical intention is not reflected in the formal orders as drawn, the Court of Criminal Appeal will correct the balance of term on appeal to give effect to the sentencing judge's evident purpose.
  • Serious group offending involving violence, weapons, and vulnerable victims can warrant significant custodial sentences for juvenile offenders, even after applying the youth justice principles in s 6 of the Children (Criminal Proceedings) Act 1987.
  • The standard non-parole period applicable under the relevant provisions did not directly govern sentence length in a guilty plea matter, but was treated as a useful benchmark from which the sentencing judge could move having regard to mitigation and other relevant factors.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(3), 98
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 11, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Henry (cited by Hulme J in the context of the applicable sentencing range)