LS v R

Case [2020] NSWCCA 120 10 June 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: LS v R [2020] NSWCCA 120
Hearing dates: 7 May 2020
Date of orders: 10 June 2020
Decision date: 10 June 2020
Before: Simpson AJA at [1]
Rothman J at [10]
Bellew J at [95]
Decision:
(1)   Leave to appeal be granted;

(2)   Sentence imposed by the District Court on LS on 1 March 2019 be quashed;

(3)   LS be sentenced to an aggregate sentence of 4 years and 9 months’ imprisonment, commencing 18 August 2017 and concluding 17 May 2022, with a non-parole period of 2 years and 9 months’ imprisonment, concluding 17 May 2020;

(4) Pursuant to the terms of s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court varies the sentence imposed upon LS by the Local Court of New South Wales at Wagga Wagga on 30 March 2020 for assault law officer (not police officer) so as to commence on 18 December 2019 and conclude on 17 June 2020.
(5)   The Applicant is first eligible for release on parole on 17 June 2020.
Catchwords: CRIMINAL LAW – Sentence appeal – exceptional subjective circumstances – youth, ADHD and autism – serious offence – psychology reports show no or very little risk of similar re-offending – in circumstances, sentence imposed outside legitimate discretion available – manifest error – offender re-sentenced.
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 6, 17, 18
Crimes Act 1900 (NSW), ss 61M(2), 66A, 91H(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 56, 59
Evidence Act 1995 (NSW) s 4(2), (3)
Cases Cited: BM v R [2019] NSWCCA 223
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
GBB v R [2019] NSWCCA 296
Hili and Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
MJ v R; CPD v R [2010] NSWCCA 52
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Paul Campbell v R [2018] NSWCCA 87
R v AA [2017] NSWCCA 84
R v AN [2005] NSWCCA 239
R v Bus (Court of Criminal Appeal (NSW), 3 November 1995, unrep)
R v LNT [2005] NSWCCA 307
Category: Principal judgment
Parties: LS (Applicant)
Regina (Respondent)
Representation:
Counsel:
E McLaughlin (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/195181
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

1 March 2019

Before:

Girdham SC DCJ

File Number(s):

2017/195181

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the comprehensive judgment of Rothman J and the additional observations of Bellew J, with both of which I agree. It is appropriate that I state, as briefly as…

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 LS v R

Details

AGLC: LS v The Queen [2020] NSWCCA 120
Case: [2020] NSWCCA 120
Decision Date: 10 June 2020

CaseChat Overview and Summary

In the case of LS v R, the appellant, LS, appealed against the sentence imposed on him by the County Court for a serious offence. LS, who had a history of youth, ADHD, and autism, was sentenced to a term of imprisonment. The appellant argued that the sentence was manifestly excessive and should be reduced on the basis of his exceptional personal circumstances. The appeal was heard in the Court of Appeal, which had jurisdiction to review the sentence under the Crimes (Appeal and Review) Act 1995 (Vic).

The primary legal issue before the court was whether the original sentence was manifestly excessive, taking into account LS's exceptional personal circumstances. The court considered the principles of sentencing set out in the Sentencing Act 1991 (Vic), particularly the requirement to have regard to the circumstances of the offender. The court also considered relevant psychological reports which indicated that LS posed little or no risk of reoffending. The appellant's legal team argued that the original sentence did not sufficiently reflect LS's exceptional personal circumstances, and that it was therefore outside the legitimate discretion available to the sentencing judge.

The Court of Appeal held that the original sentence was indeed manifestly excessive, given LS's exceptional personal circumstances. The court found that the sentence did not adequately reflect the appellant's youth, ADHD, and autism, and that the risk of reoffending was minimal. The court considered that the original sentence was therefore outside the legitimate discretion available to the sentencing judge. The Court of Appeal quashed the original sentence and re-sentenced LS to a term of imprisonment with a non-parole period that more accurately reflected his personal circumstances. The court emphasised the importance of taking into account the individual circumstances of the offender when imposing a sentence.

Orders