R v JL C-H [2004] NSWCCA 474

New South Wales Court of Criminal Appeal

CITATION : R v JL C-H [2004] NSWCCA 474 HEARING DATE(S) : 8 December 2004 JUDGMENT DATE : 8 December 2004

JUDGMENT OF : Santow JA at 20; Hulme J at 1; Hidden J at 21 DECISION : Sentence of non-parole period of 4 years 6 months with a balance of sentence of 3 years 6 months yielding a total term of 8 years. The non-parole period should commence on 17 December 2002 and the Appellant will be eligible for parole on 17 June 2007. The Appellant should serve his sentence in a detention centre up to the stage when he reaches 21 years.

PARTIES : Regina JL C-H FILE NUMBER(S) : CCA 3242/03 COUNSEL : Crown: D Howard Applicant: H Dhanji SOLICITORS : Crown: S Kavanagh Applicant: S O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 03/71/0003 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER :

- 4 - IN THE COURT OF CRIMINAL APPEAL 3242/03

SANTOW JA HULME J HIDDEN J

Wednesday 8 December 2004 REGINA v J L C-H Judgment 1 HULME J: By judgment delivered on 22 March 2004 leave to appeal was given to the appellant, the court's decision being recorded as being as 2004 NSWCA 30. 2 The circumstances of the appellant's offending and of him himself, are set out in some detail in that report and I do not propose to repeat what is there set forth, except to a very minimal extent. 3 The appellant's offence was of aggravated sexual assault without consent, the aggravating factor being the infliction of actual bodily harm on the victim, and the court was asked to take into account two further charges of sexual intercourse without consent arising from the same incident. 4 I described the appellant's offences at the time as appalling, a description which I see no reason to moderate. 5 The unusual step of granting leave at that stage and leaving the determination of the appeal until a later time arose because of some difficulties in relation to the evidence which the court should take into account in the event it determined to re-sentence the appellant. 6 The further evidence which the court is asked to take into account has been provided during the course of these proceedings, evidence which was not the subject of objection. That evidence shows that since the appellant has been incarcerated his rehabilitation within the prison system has moved a considerable distance. That is not to suggest it is complete. However, both daily reports kept within the Juvenile Justice system, and summary reports of various officers within that system have led me to the conclusion which I have expressed. 7 These matters do have to be considered against matters which were referred to in the court's previous judgment setting out at a little length the appellant's history and upbringing prior to the commission of the subject offences. 8 I described his offences as appalling. That also, in my view, is a fair description to give to his upbringing. I said: "It is clear that if not dominated by violence in his home environment, violence was a common feature of it."