LM v R [2006] NSWCCA 322

New South Wales Court of Criminal Appeal

CITATION: LM v R [2006] NSWCCA 322

HEARING DATE(S): 11/8/06

JUDGMENT DATE: 10 October 2006

JUDGMENT OF: Tobias JA at 1; Howie J at 2; Rothman J at 3

DECISION: a. leave to appeal granted;; b. appeal dismissed.

CATCHWORDS: CRIMINAL LAW - CRIMINAL APPEAL - sentencing appeal - sexual assault - discretion to treat as an adult - discretion to treat as a child under Children (Criminal Proceedings) Act - no manifest excess

LEGISLATION CITED: Crimes Act 1900 (NSW) Children (Criminal Proceedings) Act 1987 (NSW)

CASES CITED: -

PARTIES: LM Regina

FILE NUMBER(S): CCA 2006/1197

COUNSEL: C Smith V Lydiard

SOLICITORS: J Grix (LAC) S Kavanagh (Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0032

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 21/11/05

- 4 - IN THE COURT OF CRIMINAL APPEAL 2006/1197

TOBIAS JA HOWIE J ROTHMAN J LM v REGINA Judgment [non-publication order]

1 TOBIAS JA: I agree with Rothman J. 2 HOWIE J: I agree with Rothman J. 3 ROTHMAN J: The applicant, LM, seeks leave to appeal against the sentence imposed by his Honour Judge Williams of the District Court of NSW on 21 November 2005. On that date Williams DCJ sentenced the applicant to a non-parole period of three years' imprisonment with a further two years as the remainder of sentence. This sentence was imposed for each of three charges of sexual intercourse without consent contrary to s.61I of the Crimes Act 1900. Each sentence was to be served concurrently, with each commencing on 24 December 2004 and each non-parole period expiring on 23 December 2007. The total sentence will expire on 23 December 2009. 4 The applicant was a minor at the time of the commission of these offences, as was the victim. Legislation requires that the names of both the offender and the victim not be published. 5 The ground of appeal is manifest excess. In order to determine the appeal it is necessary to have regard to the objective nature of the offences and the subjective factors of the applicant.