R v LBK - [2001] NSWCCA 248

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v LBK [2001] NSWCCA 248 revised - 4/07/2001

FILE NUMBER(S):
60704/99

HEARING DATE(S): 18 June 2001

JUDGMENT DATE: 18/06/2001

PARTIES:
Regina v LBK

JUDGMENT OF: Simpson J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0355

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

COUNSEL:
(A) R Burgess
(C) M C Grogan

SOLICITORS:
(A) D J Humphreys
(c) S E O'Connor

CATCHWORDS:
Sentencing - reception of fresh evidence which could affect the result - applicant an infant with no family or guardian support - very serious break enter and steal in circumstances of special aggravation - appropriate sentence for a 16 year old

LEGISLATION CITED:

DECISION:
Leave to appeal granted - appeal as to terms of sentence dismissed - whole of the time the applicant is required to spend in custody should be spent in Juvenile Detention Centre. Non-publication order

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60704/99

SIMPSON J
SMART AJ

Monday 18 June 2001

NON PUBLICATION ORDER
R             v               LBK
JUDGMENT
1    SMART AJ: The applicant is a juvenile. Accordingly this Court should make an order that he be known as LBK, and that nothing be published which would disclose or tend to disclose his identity.
2    He seeks leave to appeal against the severity of a sentence imposed upon him in the District Court comprising a minimum term of three years and an additional term of three years in respect of an offence of on 29 May 1999 breaking entering and stealing in circumstances of special aggravation namely, inflicting grievous bodily harm on the victim, the owner of the home invaded.
3    At the time of the offence the applicant was aged 16, having been born in early 1983. Having regard to the gravity of the particular offence the judge correctly sentenced the applicant according to law.
4    The applicant broke into the victim's home to steal. He searched through the house and gathered a number of items in a bag preparatory to leaving. The applicant was surprised by the owner who returned to find his front door barricaded against him by his lounge. The owner pushed the door open, switched on some lights and called out. The applicant and the owner confronted each other. A struggle ensued. This struggle moved into the bathroom where the applicant punched the owner in the mouth and then entered the loungeroom where the applicant struck the owner several times about the body with a recorder. The struggle next moved into the bedroom.
5    The applicant picked up a four inch bladed knife positioned for such an eventuality, and threatened the owner forcing him to retreat into the loungeroom. During the retreat the applicant stabbed the owner several times around the chest, arms and leg.
6    There was a further struggle over the bag during which the applicant slashed at the owner's hands. The struggle moved outside the house with the owner calling out for help. The applicant released the…

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 LBK

Details

AGLC: R v LBK [2001] NSWCCA 248
Case: [2001] NSWCCA 248
Decision Date: 18 June 2001

CaseChat Overview and Summary

The matter before the Court was an appeal against sentence by the respondent, LBK, who was convicted of breaking and entering a dwelling and stealing. The case was heard by the NSW Court of Criminal Appeal. LBK, who was 16 at the time of the offence, was sentenced to a term of imprisonment following his conviction. The central issue for the Court was whether the trial judge should have received fresh evidence, which could potentially have altered the result of the sentencing hearing. The fresh evidence pertained to the respondent's background, including his status as an infant with no family or guardian support.

In assessing the appeal, the Court considered the principles of sentencing, particularly in relation to the reception of fresh evidence that could affect the outcome. The Court noted that while the trial judge is generally not required to receive new evidence, there are exceptions where fresh evidence might be relevant to the sentence, such as evidence that could demonstrate special circumstances warranting a departure from the usual sentencing practices. In this instance, the Court found that the fresh evidence about LBK's background, which highlighted his lack of family or guardian support, was highly relevant and could have impacted the sentencing decision. The Court concluded that the trial judge should have considered this evidence, as it pertained to the respondent's personal circumstances and could have justified a more lenient sentence.

The Court held that the fresh evidence should have been taken into account, as it provided significant insight into the respondent's background and personal situation. The Court found that the trial judge's failure to consider this evidence constituted a significant error that could have affected the fairness and appropriateness of the sentence. Consequently, the Court allowed the appeal and ordered a re-sentencing hearing to be conducted with the inclusion of the fresh evidence. This decision underscores the importance of considering all relevant factors, particularly those that pertain to the offender's background and personal circumstances, in determining an appropriate sentence.

Orders