R v JDB - [2005] NSWCCA 102

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v JDB [2005] NSWCCA 102

FILE NUMBER(S):
2005/92

HEARING DATE(S): 21 March 2005

JUDGMENT DATE: 24/03/2005

PARTIES:
REGINA v JDB

JUDGMENT OF: Mason P Barr J Johnson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 04/61/0045

LOWER COURT JUDICIAL OFFICER: Norrish DCJ

COUNSEL:
Applicant: C Smith
Respondent: P Ingram

SOLICITORS:
Applicant: S E O'Connor - Legal Aid
Respondent: S Kavanagh - DPP

CATCHWORDS:
CRIMINAL APPEAL - sentence - Crimes Act, s66A - offender aged 13/14 at time of offence - deterrence - rehabilitation (ND)

LEGISLATION CITED:

DECISION:
Appeal upheld.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2005/92
MASON P
BARR J
JOHNSON J
Wednesday 23 March 2005

REGINA v J D B

Judgment

MASON P: The applicant, who appeals against sentence imposed in the District Court, was born on 10 July 1989. He is now 15 years old. He was aged between 13 years and 5 months and 14 years and 2 months at the time of the offences.
The sentence was a non-parole period of 12 months imprisonment commencing on 10 August 2004 and expiring on 9 August 2005, to be served in a detention centre. The balance of the sentence is two years commencing on 10 August 2005 and expiring on 9 August 2007. The applicant was directed to be released to parole subject to the supervision of the Department of Juvenile Justice at the conclusion of the non-parole period and other appropriate conditions (see RS 26-7).
The applicant is the only child of parents who separated when he was about 13 months old. Both parents have since remarried. His mother formed her current relationship in about 1992 and there is a daughter of this union. The applicant’s father also married in 1992 and there are three daughters to this union, the applicant’s half-sisters.
The offences involve the oldest of those three daughters, who was aged 8 at the relevant time.
The applicant lived with his mother except at weekends when he would visit the home of his father and step-mother.
On 4 October 2003 the victim EB reported something to her mother. Within days she and the applicant were interviewed by the police. With one exception, the applicant admitted immediately the conduct alleged. He was charged on 7 October 2003. Upon his plea of guilty to all charges, he was committed to the District Court for sentence in relation to four offences and a Form 1 document that set out two additional offences.
Each of the six offences was a contravention of s66A of the Crimes Act 1900, namely having sexual intercourse with a person under 10 years.
Offences 1 and 2 occurred between 1 November 2002 and 25 December 2002. The applicant was playing hide and seek. The victim and the applicant were in a toilet in the house. The applicant locked the toilet door, pulled his pants down and told the victim to bend over and touch the floor. He…

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 R v JDB

Details

AGLC: R v JDB [2005] NSWCCA 102
Case: [2005] NSWCCA 102
Decision Date: 24 March 2005

CaseChat Overview and Summary

In the case of R v JDB, the appellant, a minor, was convicted of an offence under the Crimes Act and appealed against the sentence imposed by the lower court. The case was heard in the New South Wales Court of Criminal Appeal. The primary issue for the court was whether the original sentence was appropriate, considering the appellant's age at the time of the offence and the principles of deterrence and rehabilitation.

The court was required to assess the lower court's application of the relevant statutory provisions, particularly section 66A of the Crimes Act, in the context of the appellant's age, which was between 13 and 14 years old at the time of the offence. The court needed to determine if the sentence adequately balanced the need for deterrence and the potential for rehabilitation. The court also had to consider whether the lower court appropriately weighed the circumstances of the case, including the appellant's age and the nature of the offence, in arriving at the sentence.

The court concluded that the lower court had erred in not sufficiently considering the appellant's age and the potential for rehabilitation. The court held that the sentence imposed was too severe, given the appellant's age and the circumstances of the offence. The court emphasised the importance of tailoring sentences to the individual circumstances of the offender, particularly when dealing with young offenders. Consequently, the court allowed the appeal, quashed the original sentence, and remitted the matter to the lower court for resentencing, with specific directions to appropriately consider the appellant's age and the principles of deterrence and rehabilitation.

Orders