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Court of Criminal Appeal 18 June 2001

Regina v LBK [2001] NSWCCA 248 revised - 4

[2001] NSWCCA 248

Assault & violenceTheft & property
SENTENCING APPROPRIATE SENTENCE FOR A 16 YEAR OLD

Citation: Regina v LBK [2001] NSWCCA 248
Court: Court of Criminal Appeal (New South Wales)
Date: 18 June 2001
Judge(s): Smart AJ; Simpson J

Background

The applicant, identified only as LBK to protect his identity, was 16 years old when he broke into a residential property in May 1999. The owner returned home to find the applicant inside, and a violent struggle followed. The applicant stabbed and slashed the owner multiple times with a knife, causing serious injuries including puncture wounds to the chest that deflated both lungs, a severed tendon in the owner's thumb, and deep lacerations requiring microsurgery. The owner was hospitalised and left with permanent weakness in his hand and ongoing psychological harm.

The applicant pleaded guilty in the District Court to break, enter and steal in circumstances of special aggravation, specifically the infliction of grievous bodily harm. Judge Shadbolt sentenced him to a minimum term of three years and an additional term of three years. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

At the time of the offence, the applicant was on bail and on probation. He had a history of prior offending beginning at age 14, a deeply troubled background including time as a State ward, foster care placements that broke down, and no stable family support.

  • Whether leave to appeal against the severity of the sentence should be granted.
  • Whether fresh evidence, not before the sentencing judge, should be admitted on the appeal.
  • Whether the fresh evidence, if admitted, justified a reduction in the sentence imposed.
  • Whether the appropriate custodial setting for a juvenile offender of this age was a Juvenile Detention Centre rather than an adult correctional facility.

Decision

The Court granted leave to appeal but dismissed the appeal against the terms of the sentence. Smart AJ found that, given the gravity of the offence, the sentencing judge had correctly sentenced the applicant according to law. The circumstances of the offence, including the sustained violence, the applicant's apparent belief that the owner should have allowed him to leave with stolen goods, and the serious and lasting injuries inflicted, placed it at the higher end of the spectrum.

Fresh evidence was tendered on the appeal, which had not been before the sentencing judge. Smart AJ explained the failure to present the material at the time of sentencing, attributing it partly to the applicant's youth and lack of access to adequate medical assessment. The Court accepted the evidence for the purpose of the appeal.

Simpson J addressed the test for admitting fresh evidence on a sentencing appeal, drawn from R v Goodwin (1990) 51 ACR 328. Her Honour accepted that the fresh material was of sufficient significance to satisfy the first limb of that test, namely that the sentencing judge may have regarded it as having a real bearing on the decision. However, Simpson J was careful to distinguish between evidence that may have had a bearing and evidence that would necessarily or probably have produced a lesser sentence. Even with that material before him, the sentencing judge would not, in her Honour's view, have sentenced the applicant differently.

The one modification the Court did make concerned the place of custody. Both judges agreed that the entire period the applicant was required to spend in custody should be served in a Juvenile Detention Centre, not an adult prison, reflecting the applicant's age and the principle that juvenile offenders should be held in age-appropriate facilities where possible.

Orders Made

  • Leave to appeal granted.
  • Appeal against the terms of the sentence dismissed.
  • Order that the whole of the time the applicant is required to spend in custody be served in a Juvenile Detention Centre.
  • Non-publication order made suppressing the applicant's identity.

Key Takeaways

  • Admitting fresh evidence on a sentencing appeal requires satisfaction of a three-part test, as restated in R v Goodwin. The first limb asks whether the evidence is of such significance that the sentencing judge may have regarded it as having a real bearing on the decision.
  • Satisfying the first limb of the fresh evidence test does not automatically follow that the appellate court would impose a lesser sentence. The Court of Criminal Appeal here drew a clear distinction between evidence that could have influenced the sentencing judge and evidence that would necessarily have altered the outcome.
  • A juvenile offender's youth, deprived background, and lack of family or guardian support are relevant to sentencing, but those factors do not override the gravity of an extremely serious offence involving sustained and life-threatening violence.
  • In dismissing the substantive appeal, the Court nonetheless exercised its discretion to direct that the applicant's entire custodial period be served in a Juvenile Detention Centre, reflecting the importance of age-appropriate detention for young offenders.
  • Where fresh evidence was not presented at sentencing due to the applicant's youth and absence of adequate medical assessment, the Court of Criminal Appeal treated that explanation as sufficient to satisfy the knowledge limbs of the fresh evidence test.

Legislation and Cases Referenced

Cases:
- R v Smith (1987) 44 SASR 487
- R v Goodwin (1990) 51 ACR 328 (setting out the three-limb test for admission of fresh evidence on a sentencing appeal)

Legislation: No specific legislation was cited in the judgment text provided.