LB v R [2011] NSWCCA 220

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: LB v R [2011] NSWCCA 220 Hearing dates: 22 September 2011 Decision date: 07 October 2011 Before: WHEALY JA at 1 JAMES J at 2 HOEBEN J at 3 Decision: Grant leave to appeal. Allow the appeal. Quash the sentences imposed by his Honour Sorby DCJ on 13 August 2010. In lieu thereof, the applicant is sentenced as follows: Count 2 - A sentence of imprisonment for a fixed term of 2 years to commence on 20 June 2010 and to conclude on 19 June 2012. Count 1 - A term of imprisonment with a non-parole period of 2 years to date from 20 June 2011 and to conclude on 19 June 2013 with a balance of term of 18 months to date from 20 June 2013 and to conclude on 19 December 2014. Catchwords: CRIMINAL LAW - sentence appeal - aggravated indecent assault on a child and sexual intercourse with a child - impact of mental disability on sentence - findings of fact not open on the evidence - effect on sentence of s61M offence being able to be dealt with in the Local Court - need to resentence Legislation Cited: Crimes Act 1900 Mental Health Act 1990 Cases Cited: Bonwick v R [2010] NSWCCA 177 R v Hemsley [2004] NSWCCA 228 R v Israil [2002] NSWCCA 255 R v Palmer [2005] NSWCCA 349 Stewart v R [2009] NSWCCA 152 The Queen v Oldbrich (1999) 199 CLR 270 Vuni v R [2006] NSWCCA 171 Waters v R [2007] NSWCCA 219 Texts Cited: --- Category: Principal judgment Parties: LB - Applicant Regina - Respondent Crown Representation: M Ramage QC - Applicant S Bowers - Respondent Crown Jeffreys lawyers - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2009/142364 Publication restriction: --- Decision under appeal Citation: --- Date of Decision: 2010-08-13 00:00:00 Before: Sorby DCJ File Number(s): 2009/142364