R v MLW [2001] NSWCCA 133

New South Wales Court of Criminal Appeal

CITATION : R v MLW [2001] NSWCCA 133 FILE NUMBER(S) : CCA 60681/00 HEARING DATE(S) : 9/4/2001 JUDGMENT DATE : 9 April 2001

PARTIES : Regina MLW JUDGMENT OF : Dowd J at 1; Smart AJ at 30

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/51/0053 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : Ms Forbes- Applicant Mr Berman- Crown SOLICITORS : PD Rosser, Many Rivers Aboriginal Legal Service- Applicant SE O'Connor, Director of Public Prosecutions (NSW)- Crown CATCHWORDS : Appeal against severity of sentence - Sexual intercourse without consent - Minors - Alcohol abuse LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 Crimes Act 1900 R v Fernando (1992) 76 A Crim R 58. CASES CITED: R v GDP (1991) 53 A Crim R 112. R v Hartikainen (Unreported, NSWCCA, 8 June 1993, Gleeson CJ, Meagher JA and Newman J). DECISION : 1. Appeal refused; 2. Leave to appeal granted.

IN THE COURT OF CRIMINAL APPEAL

DOWD J SMART AJ

60681/00

9 APRIL 2001 R v M L W

REASONS FOR JUDGMENT

1 DOWD J: The Court is in a position to give judgment in this matter. This is an application for leave to appeal against the severity of a sentence imposed on the applicant by His Honour, Ducker DCJ, at Lismore District Court. As the applicant was fifteen years old at the time of the offence, and is now sixteen years of age, his initials will be used in this judgment to protect his identity, and to conform with the orders that I have made pursuant to s11 of the Children (Criminal Proceedings) Act 1987. 2 The applicant was sentenced on 18 October 2000 for that he, on 28 November 1999, at Angourie, did have sexual intercourse with a female person without her consent, knowing that she was not consenting, contrary to s61I of the Crimes Act 1900 ('the Act'), the maximum penalty for such a conviction being fourteen years imprisonment. 3 The applicant entered a plea of guilty, and was sentenced by His Honour to a period of three years imprisonment, to date from 17 October 2000 and to expire on 16 October 2003, with a non-parole period of one year and eight months, to commence on 17 October 2000 and to expire on 16 June 2002. 4 His Honour gave a direction that the applicant be released on parole at the expiration of the non-parole period, and that he receive supervision, counselling, and treatment for drugs and alcohol, and that he submit to the sexual offender programme. 5 His Honour, pursuant to s19 of the Children (Criminal Proceedings) Act 1987, directed that the sentence be served in a detention centre. 6 The applicant was arrested on 28 November 1999, the day of the assault, and on 29 November 1999, the applicant entered bail. The applicant was granted bail on certain terms and conditions. He remained on bail until the day of sentence. The sentence commenced a day earlier than the date of sentencing, to take into account the day that he had spent in custody.