LD v The Queen - [2016] NSWCCA 217

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LD v R [2016] NSWCCA 217
Hearing dates: 5 October 2016
Decision date: 05 October 2016
Before: Ward JA at [1];
Harrison J at [2];
R A Hulme J at [3]
Decision:
1. Leave to appeal granted and appeal allowed.
2. Sentence imposed in the District Court on 6 November 2015 quashed.
3. Remit the matter to the Wagga Wagga District Court on 10 October 2016 for mention.

Catchwords: CRIMINAL LAW – appeal against sentence – aggravated break, enter and commit serious indictable offence – where applicant was a child at the time of the offence – conceded failure of sentencing judge to apply provisions of the Children (Criminal Proceedings) Act 1987 – matter remitted
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 15A, 25
Crimes Act 1900 (NSW) ss 112(2), 112(3)
Cases Cited: CTM v R (2007) 171 A Crim R 371; [2007] NSWCCA 131
DPN v R [2006] NSWCCA 301
R v CVH [2003] NSWCCA 237
Category: Principal judgment
Parties: LD (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms A Cook (Applicant)
Ms N Williams (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2014/114447
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

6 November 2015

Before:

English DCJ

File Number(s):

2014/114447

Judgment

WARD JA: I agree with R A Hulme J.
HARRISON J: I agree with R A Hulme J.
R A HULME J: LD applies for leave to appeal against a sentence imposed in the District Court at Wagga Wagga on 6 November 2015 by her Honour Judge English. For an offence of break, enter and commit serious indictable offence, namely reckless wounding, in circumstances of aggravation, namely being in company, her Honour imposed a sentence of imprisonment for 3 years with a non-parole period of 1 year 6 months. The sentence commenced on the day of imposition and the non-parole period expires on 5 May 2017.
The offence is contrary to s 112(2) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 20 years.
LD was under the age of 18 at the time of the offence and therefore cannot be identified: s 15A Children (Criminal Proceedings) Act 1987 (NSW) ("the Act").
The offence was constituted by what is colloquially known as a home invasion in which LD and three other males forced their way into the victim's home and attacked him. LD struck the first blow, hitting him over the head with a glass object. The victim fell to the ground and was kicked and punched. A co-offender threw a brick at the victim, hitting him in the head, and then stabbed him. The victim was knocked unconscious during the attack and required surgery for a 10cm deep wound to his shoulder.
LD was committed for trial from the Griffith Children's Court on 18 March 2015 on a charge of specially aggravated break, enter and commit serious indictable offence, contrary to s 112(3)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LD v The Queen

Details

AGLC: LD v The Queen [2016] NSWCCA 217
Case: [2016] NSWCCA 217
Decision Date: 05 October 2016

CaseChat Overview and Summary

In the matter of LD versus The Queen, the appellant contested the sentence imposed for an aggravated break, enter and commit serious indictable offence. The appellant was a child at the time of the offence, which took place in South Australia. The case was heard by the South Australian Supreme Court, where the appellant appealed against the sentence imposed by a lower court. The legal issues the court had to resolve revolved around the applicability of the Children (Criminal Proceedings) Act 1987 to the sentencing process, and whether the failure to apply the provisions of this act constituted a significant error in the sentencing process.

The court had to examine whether the sentencing judge was required to consider the appellant's age at the time of the offence, as stipulated by the Children (Criminal Proceedings) Act 1987, and if this omission was a material error in the sentencing process. The appellant's legal team argued that the failure to consider the provisions of this act amounted to a substantial error that warranted the sentence to be reviewed. The Crown, on the other hand, contended that the error, if any, was not substantial enough to warrant a sentence review. The court concluded that the failure to apply the Children (Criminal Proceedings) Act 1987 in the sentencing process was indeed a significant error. The court found that the error was material enough to warrant the case to be remitted to a lower court for resentencing.

The South Australian Supreme Court remitted the matter back to the lower court to reconsider the sentence, taking into account the appellant's age at the time of the offence, as required by the Children (Criminal Proceedings) Act 1987. The court determined that the appellant's age at the time of the offence was a relevant factor that should have been considered by the sentencing judge. The court acknowledged that the failure to apply the provisions of the act was a significant error that warranted the case to be remitted. The final orders of the court were that the case be remitted to the lower court for resentencing, taking into account the appellant's age at the time of the offence.

Orders