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 Legislation requires that the names of both the offender and the victim not be published. 5 The ground of appeal is manifest excess.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. Objective Criminal Conduct 6 The applicant pleaded guilty to the charges and the facts were agreed. They are summarised by the sentencing judge in these remarks: "The victim was aged 17 at the time. She had [sic] was staying at the place where [LM] was also residing, I gather, at the time. She went upstairs with some other girls and went to bed. He went up looking for her and asking where she was. He was asked why, to which he replied 'because I want to fuck her'. Once the offender became aware of the victim's presence he commenced to physically drag her out of the room by grabbing her wrists to get her to stand up and by placing his arms around her waist. She tried to fight him off by pushing him away and his step sister, [M], tried to kick him. He then forced the victim into the upstairs bathroom and locked the door. She was told to take off her clothes. In fear she took her clothes off, but left her underpants on. He then ripped those from her, tearing them in the process. She was then forced to lie on the floor of the bathroom, where he had penile vaginal intercourse for 5 to 10 minutes. He then sat on the toilet seat and ordered the victim to give him a head job, which occurred for about 10 to 15 seconds and she pulled away. He then grabbed her by the head and pushed her forward, causing her to bang her heard on the bath tub. She said she was not going to give him a head job and he said, 'Alright fuck me'. After that the victim did everything the offender commanded, because she felt she had no choice. She lay on the ground. He placed his penis into her vagina and began to penetrate her until he eventually ejaculated," [even though she had specifically requested that he not]. Subjective Circumstances 7 The "extraordinarily disruptive" circumstances of the applicant can be gleaned from two reports before the sentencing judge, being the Juvenile Justice Report and the psychological report of Dr Christopher Lennings dated 27 June 2005. To the extent that there is any inconsistency between the two reports, Dr Lennings' report was preferred by the judge. 8 The applicant's childhood is described as "extremely difficult and destructive". His mother is a heavy drinker and was when the applicant was an infant. His biological father was a severe drinker and drug abuser. 9 His mother and father separated when he was an infant and his father kidnapped the applicant when he was four. His father held him for 1½ years in Queensland. During that time his father introduced the applicant to alcohol, marijuana and amphetamines. There are a number of reports that during this time he was subjected, beyond the foregoing, to neglect and physical, and possibly sexual, abuse. He was found when he was 5½ years old by the Federal Police and returned to his mother. This "restoration" was of poor quality. After the return his abuse of alcohol and marijuana continued. At the age of six he was diagnosed with Attention Deficit Disorder and placed on dexamphetamine, apparently without regard to the earlier abuse of amphetamines. 10 He could sustain no stable relationship and was placed in foster care in a number of different homes at various times to the age of 12. He was, at that stage, a ward of the State. During this time the applicant would repeatedly abscond from care and return to his mother. Finally DOCS returned the applicant to his mother's care. 11 Understandably, given the foregoing history, the applicant had a poor school record and little or no adjustment. After the first three years of primary school there was little regular school attendance. He has low average range for ability, better than only the bottom 14 percent of the population. 12 The applicant has attempted self harm on numerous occasions, including while in detention. The psychologist's report establishes that he has a real need for drug and alcohol counselling both in detention and upon re-entry into the community. He has already commenced that process, which should be given every possible encouragement. Manifest Excess 13 On the day of the offence the applicant had consumed large quantities of alcohol and drugs. Given his early childhood of physical and possibly sexual abuse, coupled with abuse of alcohol and drugs, it would be extremely improbable for him not to manifest some anti-social behaviour. There is little doubt that the sentencing judge felt the same way. 14 The sentencing judge reflected on the choice between treating the applicant as a child under the Children (Criminal Proceedings) Act 1987 or in accordance with law. The discretion exercised by his Honour in that regard did not miscarry. His Honour did not take into account any irrelevant matter, he took into account all relevant matters, there was no error of law or principle, nor is the exercise of discretion manifestly wrong. 15 That exercise of discretion by William DCJ followed closely on the discretionary decision taken by Justice Blanch, Chief Judge of the District Court, that the matter not be remitted to the Children's Court. 16 More importantly, the exercise of discretion by Williams DCJ under s.18 of the Children (Criminal Proceedings) Act 1987 showed that his Honour had at the forefront of his mind the youth of the applicant and the necessity to determine whether he should be treated as an adult. 17 This crime displayed a callous, demeaning attitude towards this victim. The applicant used her uncaringly, like a chattel of little value to be used and then discarded. 18 There is no doubt that the applicant's history and personal circumstances were the primary causes of this attitude. 19 The sentencing judge was more than aware of the tragic nature of the applicant's history and the need for rehabilitation. Indeed, it seems his Honour's sentence was focussed almost entirely on that issue. The sentence imposed by his Honour ensures the applicant will complete his sentence in a juvenile facility, will undergo counselling during detention, will continue counselling after detention and it was the course his Honour considered most appropriate to break the cycle of abuse: physical; sexual; and substance. 20 The sentence imposed by his Honour is within range. It is not necessary that I would have imposed the same sentence. It is sufficient to find that the discretion reposed in his Honour in sentencing the applicant has not miscarried. There is no error of law or principle. There is no misapplication of same, nor is there manifest error. 21 I propose that leave to appeal be granted and that the appeal be dismissed. ********** 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.