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." 9 This is a view to which I adhere. I continued: "That if in a person's formative years violence is the norm, or if not the norm the only method in situations of conflict or frustration, it cannot be surprising if the normal inhibitions on the use of violence are much less weighty. The situation is a fortiori for someone so young or immature." 10 The Crown in submissions in this hearing has conceded that there were aspects of the appellant's youth and immaturity which may well have contributed to the offence, albeit maintaining that the entire disregard of the victim's rights could not be excused or indeed fully explained upon the basis of immaturity. 11 The difficulty which has arisen in this case is to try to reconcile by way of an appropriate sentence the offence itself on the one hand, an offence deserving of very serious punishment, and the subjective features arising in the appellant's subjective circumstances, immaturity due to his youth, and his upbringing. He was not yet seventeen at the time of this offence. 12 I expressed the view previously that the sentencing Judge had erred in the approach he had adopted to the topic of youth and it may be inferred that that error found reflection in the sentence of ten years, including a non-parole period of seven years which was imposed, his Honour also having indicated he had allowed a twenty-five per cent discount in consequence of the appellant's plea. 13 For my part I think that the twenty-five per cent was an appropriate allowance for all of the matters associated with the plea and not just for its utilitarian value. 14 Making what I regard as a proper allowance for the appellant's youth, and the immaturity which I am satisfied played a significant part in his offending, in my view the sentence which his Honour imposed was excessive. 15 I have by no means found the exercise of determining what should be an appropriate sentence easy because of the nature of the factors which one has to weigh. At the end of the day, however, the conclusion to which I have arrived is that the appropriate sentence which should be imposed is one which includes a non-parole period of four years and six months with a balance of sentence of three years and six months, yielding a total term of eight years. The non-parole period should commence on 17 December 2002 and the appellant will be eligible for parole on 17 June 2007. 16 I am also of the opinion that the appellant should serve his sentence in a detention centre up to the stage when he reaches twenty-one years. 17 HULME J: I am satisfied that the subjective matters arising from the appellant's upbringing apparent on the evidence with which the court has been furnished inspire a finding of special circumstances so as to justify the appellant's detention on a detention centre after the age of eighteen years and up to the time he attains twenty-one years. 18 DHANJI: The eligibility for parole should be 16 June. 19 HULME J: That difference is the subject of a considered judgment by me on one occasion - R v Kay [2000] NSWSC 716 at 128 I take the view that the 17th is the right date. Four and a half years does not expire until midnight on the 16th, the next day is the 17th, despite the examples given in the statute. 20 SANTOW JA: I agree. 21 HIDDEN J: I also agree. 22 SANTOW JA: The orders of the court at accordingly as earlier foreshadowed by Hulme J. ********** Last Modified: 07/18/2007 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.