BM v R [2019] NSWCCA 223

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BM v R [2019] NSWCCA 223 Hearing dates: 11 September 2019 Date of orders: 11 September 2019 Decision date: 27 September 2019 Before: Payne JA; Fullerton J; Bellew J Decision: (1) Allow the application for leave to appeal.

(2) Appeal allowed.

(3) Set aside the aggregate sentence imposed for Counts 1 and 2 by Gartelmann SC DCJ and in lieu thereof impose an aggregate sentence of 1 year and 6 months to commence on 12 December 2018 and to expire on 11 June 2020, with an aggregate non-parole period of 9 months to commence on 12 December 2018 and to expire on 11 September 2019. BM will be first eligible for parole on 11 September 2019.

The Court recommends to Corrective Services NSW that the applicant be released forthwith.

The following indicative sentences are identified: (a) in respect of Count 1, 14 months; and (b) in respect of Count 2, 8 months.

(4) Finding of special circumstances made. Catchwords: CRIME – appeals – appeal against sentence –whether sentencing judge failed to assess objective seriousness of offences properly – offending occurred when applicant was 13, 14 or 15 years old – causative mental disorder – appeal allowed – applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 66A Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Paul Campbell v R [2018] NSWCCA 87 R v AA [2017] NSWCCA 84 Tepania v R [2018] NSWCCA 247 Category: Principal judgment Parties: BM (Applicant) Regina (Respondent) Representation: Counsel: K Averre (Applicant) H Roberts (Respondent)