R v LLM [2005] NSWCCA 302

New South Wales Court of Criminal Appeal

CITATION: R v LLM [2005] NSWCCA 302

HEARING DATE(S): 2 May 2005

JUDGMENT DATE: 2 September 2005

JUDGMENT OF: Grove J at 1; Hulme J at 5; Simpson J at 87

DECISION: See paragraph 86

Regina PARTIES: LLM

FILE NUMBER(S): CCA 2005/9

Crown: J Bennett SC COUNSEL: Applicant: CB Craigie SC

Crown: S Kavanagh SOLICITORS: Applicant: SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0462

LOWER COURT JUDICIAL OFFICER: O'Reilly QC DCJ

- 30 - IN THE COURT OF CRIMINAL APPEAL 2005/9

GROVE J HULME J SIMPSON J

Friday, 2 September 2005 REGINA v LLM Judgment 1 GROVE J: I have had the advantage of reading the draft judgment of Hulme J and I gratefully adopt his recounting of the circumstances of offence and the issues raised by the grounds of appeal. 2 There is no need for me to emphasize the serious nature of the violence and threats of violence against unprotected victims which were perpetrated by the appellant or joined in by him. Although I would give full weight to the application of the principles relating to the exercise of criminal jurisdiction with respect to children as required by s6 of the Children (Criminal Proceedings) Act 1987, I am of opinion that no less severe sentence was warranted and, subject to what follows, the appeal should be dismissed. 3 That opinion is qualified by the correction to balance of term which Hulme J has indicated should be done in order to fulfil what was obviously the intention of O'Reilly DCJ. 4 I agree with the orders proposed by Hulme J. 5 HULME J: The person identified above by the initials LLM was, at relevant times, a juvenile. So were other persons who seem to have been involved with LLM in the activities the subject of these Reasons. Section 11 of the Children (Criminal Proceedings) Act 1987 precludes such persons being described in a way that identifies them and accordingly it is convenient to use initials throughout these remarks. 6 On 18 May 2004 Judge O'Reilly sentenced LLM and a co-offender VL both of whom have sought to appeal against the sentences imposed. Both appeals were heard on the same day although at the request of their counsel, separately. A decision in VL's case will be delivered at the same time as this decision is handed down. LLM was sentenced in respect of 2 offences, viz:- (i) That on 1 April 2003 he did assault Patrick Chang with intent to rob him and at the time of the assault did wound Patrick Chang whilst being then in the company of AD and JB. (ii) On 10 April 2003 he did, without consent, take and detain John Lee with the intention of obtaining an advantage, to wit, cash moneys via an automatic teller machine, the said John Lee having occasioned actual bodily harm during being detained, while in the company of AD and two other unknown males. 7 The first of these offences arises pursuant to s98 and the second pursuant to s86(3) of the Crimes Act 1900. Each offence rendered LLM liable to imprisonment for 25 years. 8 In sentencing LLM in respect of the first offence his Honour took into account 5 offences on a Form 1 of:- (i) On 31 March 2003 stealing a motor vehicle, registered number WFS-989. (ii) On 1 April 2003, robbery with an offensive weapon of Huang Lee (iii) On 1 April 2003, use of an offensive weapon, to wit a motor vehicle WFS-989 in an attempt to avoid arrest and run over police. (iv) On 1 April 2003, drive a conveyance WFS-989 without the consent of the owner, and (v) On 14 April 2003 being carried in a conveyance, registered number "IVALUE" without the consent of the owner 9 In sentencing LLM in respect of the second offence his Honour took into account an offence on a Form 1 of:- On 12 February 2003 having goods, viz a black plastic case containing a rechargeable torch, a rechargeable drill and a battery charger which may reasonably be suspected of being stolen or otherwise unlawfully obtained. 10 In imposing sentences Judge O'Reilly expressed himself as follows:- "I fix a non-parole period of five years from 24 April 2003, eligible for release to parole on 23 April '08. I fix a full term sentence that that is simply the non-parole period plus one-third – a full term sentence of eight years and four months from 24 April 3003 expiring 23 August 2011."