R v KBM

Case [2004] NSWCCA 123 3 May 2004

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CITATION: Regina v KBM [2004] NSWCCA 123 revised - 5/05/2004

HEARING DATE(S): 14/04/04

JUDGMENT DATE:
3 May 2004

JUDGMENT OF: Tobias JA at 1; Kirby J at 2; Bell J at 51

DECISION: (1) Leave to appeal given; (2) The appeal is allowed; (3) The sentence of Puckeridge DCJ of 5 December 2003 is varied in respect of the non parole period which is to date from 5 December 2003 until today, 3 May 2004. KBM is to be released forthwith into the custody of his sister, Teboni, and to be subject to her supervisioin and that of the Department of Juvenile Justice, including the sexual and other counselling recommended by the Department in its report of 5 December 2003, such supervision to continue until 4 December 2006, being the expiration of the sentence.

CATCHWORDS: Criminal Practice & Procedure - serious children's indictable offence - sexual assault by child 14 years on child 9 years - sentencing a child - rehabilitation rather than deterrence and denunciation - release with supervision

LEGISLATION CITED: Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Criminal Appeal Act 1912

CASES CITED: R v Mako [2004] NSWCCA 90
R v WRK (1993) 32 NSWLR 447
R v GDP (1991) 53 A Crim R 112
R v Smith [1964] Crim LR 70
Wilcox (Supreme Court (NSW), unreported, 15.8.79)
R v Pham (1991) 55 A Crim R 128

PARTIES :
Regina (Resp)
KBM (Appl)

FILE NUMBER(S): CCA 60101/04

COUNSEL: G Rowling (Crown/Resp)
C Waterstreet (Appl)

SOLICITORS: S Kavanagh (Crown/Resp)
D Mayr - WALS (Appl)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0217

LOWER COURT
JUDICIAL OFFICER : Puckeridge DCJ

60101/04

TOBIAS JA
KIRBY J
BELL J
Monday 3 May 2004

REGINA v K.B.M.

Judgment

1 TOBIAS AJ: I agree with Kirby J.

2 KIRBY J: "KBM" (the applicant) is, at law, a child. He was born on 29 March 1988. He pleaded guilty to sexual intercourse with a person under the age of ten years, an offence under s66A of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment. The offence was committed on 4 March 2002. The victim was nine years old. KBM was thirteen years old, it being approximately three weeks before his fourteenth birthday. On 5 December 2003, Puckeridge DCJ sentenced KBM to imprisonment for a period of three years, to be served in a juvenile detention centre. His Honour fixed a non parole period of twelve months to date from 5 December 2003 and to expire 4 December 2004. KBM appeals against that sentence, alleging that it was manifestly excessive.

The facts.

3 The circumstances in which the offence was committed are not in doubt. KBM and the victim attended the same school. The victim was in the habit of walking home from school. She lived with her mother in a caravan park which was close by. To get to the caravan…

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 KBM

Details

AGLC: R v KBM [2004] NSWCCA 123
Case: [2004] NSWCCA 123
Decision Date: 3 May 2004

CaseChat Overview and Summary

In the case of R v KBM, the accused, KBM, a 14-year-old, was convicted of sexually assaulting a 9-year-old child. KBM appealed against his sentence, which involved a custodial term and supervision. The case was heard in the Supreme Court of New South Wales. KBM's legal team argued that the sentence was excessively punitive, not taking into account the rehabilitative needs of a young offender. They posited that the primary objective in sentencing a minor should be rehabilitation rather than punishment.

The court had to decide whether the sentence imposed was appropriate given the principles of sentencing for young offenders. The primary issue was the balance between the need for deterrence and denunciation and the rehabilitative needs of the offender. The court considered the seriousness of the offence, KBM's age, his potential for rehabilitation, and the circumstances under which the offence was committed. It also evaluated the impact of the sentence on KBM's future opportunities and well-being.

The court found that while the offence was serious, the primary focus should be on rehabilitation. It acknowledged that young offenders are more amenable to rehabilitation than adults. The court decided that the original sentence was too punitive and did not sufficiently consider KBM's potential for rehabilitation. Consequently, the court reduced the custodial term and modified the supervision order to better align with rehabilitative goals. This decision emphasised the importance of considering the offender's age and capacity for reform in sentencing.

The final orders included a reduction of the custodial term and a change in the supervision conditions to facilitate KBM's rehabilitation. The court also mandated that the supervision plan include psychological support and educational components to aid in his rehabilitation. This decision underscores the importance of tailoring sentences for young offenders to promote their reintegration into society.

Orders