LB v R

[2019] NSWCCA 151

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

LB v R [2019] NSWCCA 151

Hearing dates:

12 June 2019

Date of orders:

12 July 2019

Decision date:

12 July 2019

Before:

Payne JA at [1]
Davies J at [2]
Button JJ at [79]

Decision:

(1) Extend time for the filing of the Notice of Appeal to 25 January 2019.

 

(2) Grant leave to appeal.

 (3) Dismiss the appeal.

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – applicant sentenced after trial – applicant found guilty of two child sex offences contrary to ss 66A(1) and 61M(2) – two separate complainants – first complainant was the 8 year old sister of the applicant’s then partner – second complainant was the 5 year old daughter of the applicant’s then partner – touching and digital penetration – applicant sentenced to an aggregate sentence of 13 years’ imprisonment with a non-parole period of nine years – whether the s 66A sentence incorporated factual error – where the sentencing judge made erroneous factual finding as to bleeding caused by the offending – finding only one of the considerations taken into account when assessing objective seriousness – whether the sentencing judge erroneously assessed the objective seriousness of the offending – whether the sentencing judge erred in the weight she afforded to the standard non-parole period – whether the sentencing judge erroneously found that the applicant could address his rehabilitation needs in custody – whether the sentencing judge failed to give adequate consideration to the causal role of substance addiction in the offending and the applicant’s disadvantaged background – whether special circumstances should have been found – whether the sentence was manifestly excessive – no statistics or comparative cases were provided to support applicant’s high-level assertion that the sentence was plainly unreasonable and unjust – significant degree of concurrency between two individual sentences – no manifest excess found – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW) ss 61M, 66A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 44, 166

Cases Cited:

Jiang v R [2010] NSWCCA 277
Muldrock v The Queen (2011) 244 CLR 120
R v Fidow [2004] NSWCCA 172
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
TS v R [2007] NSWCCA 194

Texts Cited:

Nil

Category:

Principal judgment

Parties:

LB (Applicant)
Crown (Respondent)

Representation:

Counsel:
C Doosey (Applicant)
K Jeffreys (Respondent)

  Solicitors:
Johnston Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/287297 & 2016/223285

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

Noman SC DCJ

Before:

13 October 2017

File Number(s):

2015/287297 & 2016/223285

Judgment

1. PAYNE JA:   I agree with Davies J.

2. DAVIES J:   The applicant was convicted after trial of the following two offences:

Count 1: Indecent assault of a child under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is ten…