JM v R [2012] NSWCCA 83

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JM v R [2012] NSWCCA 83 Hearing dates: 17 November 2011 Decision date: 07 May 2012 Jurisdiction: Criminal Before: Whealy JA at [1] Simpson J at [27] Hoeben J at [148] Decision: By majority (1).Leave to appeal granted. (2)In respect of the offence of inflicting grievous bodily harm with intent to do so, appeal allowed, sentence quashed. (3)In lieu thereof, sentence the applicant to imprisonment for five years commencing on 14 October 2010 and concluding on 13 October 2015, with a non-parole period of three years concluding on 13 October 2013. Catchwords: CRIMINAL LAW - appeal - sentencing - inflicting grievous bodily harm with intent - affray - plea of guilty - parity principle - relevant differences - different degrees of culpability - different circumstances - youth - children - power to order young offender who has attained 18 years to serve sentence as a juvenile offender - extent of power - where offence is serious children's indictable offence - order available where special circumstances exist - vulnerability due to illness or disability - whether disability available on evidence - whether open to sentencing judge to take into account limitations on power to order sentence be served as juvenile offender - whether manifestly excessive - Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 6, 17, 18, 19, 19(1), 19(2), 19(3), 19(4), 19(4A) - Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 12, 44, 54D(3) - Crimes Act 1900 (NSW) ss 33, 35, 93C(1) - Criminal Appeal Act 1912 (NSW) s 6(3) Legislation Cited: Anti-Discrimination Act 1977 Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111 Blackwell v R [2011] NSWCCA 93 GDP (1991) 53 A Crim R 112 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Bellavia, (unreported, 16 August 1980) R v Broad (unreported, 30 March 1984) R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 R v Ly (1991) 55 A Crim R 128 R v Mastronardi [2000] NSWCCA 12; 111 A Crim R 306 R v Pham (1991) 55 A Crim R 128 R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 R v Smith [1964] Crim LR 70 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168 TG v R [2010] NSWCCA 28 Category: Principal judgment Parties: JM (Applicant) Regina (Respondent) Representation: Counsel A Francis (Applicant) S Bowers (Crown) Solicitors Legal Aid NSW (Applicant) S Kavanagh (Crown) File Number(s): 09/6965 Decision under appeal Citation: N/A Date of Decision: 2009-11-16 00:00:00 Before: English DCJ File Number(s): 09/6965