LS v R [2020] NSWCCA 120

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: LS v R [2020] NSWCCA 120 Hearing dates: 7 May 2020 Date of orders: 10 June 2020 Decision date: 10 June 2020 Before: Simpson AJA at [1] Rothman J at [10] Bellew J at [95] Decision: (1) Leave to appeal be granted;

(2) Sentence imposed by the District Court on LS on 1 March 2019 be quashed;

(3) LS be sentenced to an aggregate sentence of 4 years and 9 months' imprisonment, commencing 18 August 2017 and concluding 17 May 2022, with a non-parole period of 2 years and 9 months' imprisonment, concluding 17 May 2020;

(4) Pursuant to the terms of s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court varies the sentence imposed upon LS by the Local Court of New South Wales at Wagga Wagga on 30 March 2020 for assault law officer (not police officer) so as to commence on 18 December 2019 and conclude on 17 June 2020.

(5) The Applicant is first eligible for release on parole on 17 June 2020. Catchwords: CRIMINAL LAW – Sentence appeal – exceptional subjective circumstances – youth, ADHD and autism – serious offence – psychology reports show no or very little risk of similar re-offending – in circumstances, sentence imposed outside legitimate discretion available – manifest error – offender re-sentenced. Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 6, 17, 18 Crimes Act 1900 (NSW), ss 61M(2), 66A, 91H(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 56, 59 Evidence Act 1995 (NSW) s 4(2), (3) Cases Cited: BM v R [2019] NSWCCA 223 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 GBB v R [2019] NSWCCA 296 Hili and Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 MJ v R; CPD v R [2010] NSWCCA 52 KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Paul Campbell v R [2018] NSWCCA 87 R v AA [2017] NSWCCA 84 R v AN [2005] NSWCCA 239 R v Bus (Court of Criminal Appeal (NSW), 3 November 1995, unrep) R v LNT [2005] NSWCCA 307 Category: Principal judgment Parties: LS (Applicant) Regina (Respondent) Representation: Counsel: E McLaughlin (Applicant) E Wilkins SC (Respondent)