Regina v KBM [2004] NSWCCA 123

New South Wales Court of Criminal Appeal

CITATION : Regina v KBM [2004] NSWCCA 123 revised - 5/05/2004 HEARING DATE(S) : 14/04/04 JUDGMENT DATE : 3 May 2004

JUDGMENT OF : Tobias JA at 1; Kirby J at 2; Bell J at 51 DECISION : (1) Leave to appeal given; (2) The appeal is allowed; (3) The sentence of Puckeridge DCJ of 5 December 2003 is varied in respect of the non parole period which is to date from 5 December 2003 until today, 3 May 2004. KBM is to be released forthwith into the custody of his sister, Teboni, and to be subject to her supervisioin and that of the Department of Juvenile Justice, including the sexual and other counselling recommended by the Department in its report of 5 December 2003, such supervision to continue until 4 December 2006, being the expiration of the sentence.

CATCHWORDS : Criminal Practice & Procedure - serious children's indictable offence - sexual assault by child 14 years on child 9 years - sentencing a child - rehabilitation rather than deterrence and denunciation - release with supervision Crimes Act 1900 Children (Criminal Proceedings) Act 1987 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Criminal Appeal Act 1912 R v Mako [2004] NSWCCA 90 R v WRK (1993) 32 NSWLR 447 CASES CITED : R v GDP (1991) 53 A Crim R 112 R v Smith [1964] Crim LR 70 Wilcox (Supreme Court (NSW), unreported, 15.8.79) R v Pham (1991) 55 A Crim R 128 PARTIES : Regina (Resp) KBM (Appl) FILE NUMBER(S) : CCA 60101/04 COUNSEL : G Rowling (Crown/Resp) C Waterstreet (Appl) SOLICITORS : S Kavanagh (Crown/Resp) D Mayr - WALS (Appl)