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Court of Criminal Appeal 10 October 2006

LM v R

[2006] NSWCCA 322

Sexual offences
CRIMINAL LAW CRIMINAL APPEAL SENTENCING APPEAL SEXUAL ASSAULT DISCRETION TO TREAT AS AN ADULT NO MANIFEST EXCESS

Citation: LM v R [2006] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 10 October 2006
Judge(s): Tobias JA, Howie J, Rothman J (Rothman J delivering the leading judgment)

Background

The appellant, LM, was a minor at the time he committed three offences of sexual intercourse without consent against a 17-year-old victim, contrary to section 61I of the Crimes Act 1900 (NSW). Both the offender and victim were minors, and a non-publication order applied to both names. LM pleaded guilty to all three charges.

Williams DCJ sentenced LM in the District Court on 21 November 2005 to a non-parole period of three years' imprisonment with a further two years as the balance of the sentence, for each charge, to be served concurrently from 24 December 2004. The sentencing judge exercised a discretion under the Children (Criminal Proceedings) Act 1987 (NSW) to sentence LM as an adult rather than remitting the matter to the Children's Court, a course that had also been endorsed by Chief Judge Blanch of the District Court at an earlier stage of proceedings.

LM sought leave to appeal to the Court of Criminal Appeal on the single ground that the sentence was manifestly excessive.

  • Whether the sentence of three years' imprisonment (non-parole) with a two-year balance was manifestly excessive in all the circumstances.
  • Whether the sentencing judge's discretion under the Children (Criminal Proceedings) Act 1987 (NSW) to treat LM as an adult, rather than as a child, had miscarried.

Decision

Rothman J (with whom Tobias JA and Howie J agreed) dismissed the appeal. The Court found the sentence was within range and that no relevant error had been established. It was not necessary to find that the same sentence would have been imposed; it was sufficient that the sentencing judge's discretion had not miscarried.

On the question of the Children (Criminal Proceedings) Act 1987 discretion, the Court found that Williams DCJ had kept the applicant's youth at the forefront of his reasoning. His Honour had not taken into account any irrelevant matter, had taken into account all relevant matters, made no error of law or principle, and reached a decision that was not manifestly wrong. This finding was reinforced by the earlier decision of Chief Judge Blanch not to remit the matter to the Children's Court.

The Court acknowledged the extremely difficult subjective circumstances of LM's background, including early childhood neglect, physical and possibly sexual abuse, exposure to alcohol and drugs from a very young age, multiple foster care placements, and ongoing psychological difficulties. Rothman J accepted that these circumstances were the primary cause of the attitudes the applicant displayed in committing the offences.

Nonetheless, the Court noted that the sentencing judge had structured the sentence with rehabilitation clearly in mind. The sentence ensured LM would serve his time in a juvenile facility, receive counselling during detention, and continue that counselling upon release, with the aim of breaking an entrenched cycle of abuse.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's discretion under the Children (Criminal Proceedings) Act 1987 (NSW) to treat a juvenile offender as an adult will not be disturbed on appeal where no irrelevant matters were considered, all relevant matters were taken into account, and no error of law or principle was made.
  • A sentence is not manifestly excessive simply because the appellate court might have imposed a different one; it is sufficient that the sentencing discretion was not exercised wrongly.
  • Significant mitigating subjective factors, including a severely traumatic childhood, early substance abuse, and psychological vulnerability, did not render an otherwise in-range sentence manifestly excessive where the sentencing judge had plainly addressed those factors.
  • Where two separate judicial officers (here, the Chief Judge and the sentencing judge) each exercised their respective discretions to treat a juvenile as an adult, and neither miscarried in doing so, an appellate court will not interfere with that approach.
  • The structure of a sentence, such as ensuring a young offender serves time in a juvenile facility with access to counselling, can reflect the sentencing judge's proper focus on rehabilitation without affecting the validity of the sentence as a whole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Children (Criminal Proceedings) Act 1987 (NSW), s 18 (discretion to deal with a child as an adult)

Cases cited: No cases were cited in the judgment.