R v LLM

Case [2005] NSWCCA 302 2 September 2005

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CITATION:
R v LLM [2005] NSWCCA 302

HEARING DATE(S): 2 May 2005

JUDGMENT DATE:

2 September 2005

JUDGMENT OF:
Grove J at 1; Hulme J at 5; Simpson J at 87

DECISION:
See paragraph 86

PARTIES:
Regina
LLM

FILE NUMBER(S):
CCA 2005/9

COUNSEL:
Crown: J Bennett SC
Applicant: CB Craigie SC

SOLICITORS:
Crown: S Kavanagh
Applicant: SE O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/0462

LOWER COURT JUDICIAL OFFICER:
O'Reilly QC DCJ

- 30 -

2005/9

GROVE J
HULME J
SIMPSON J

Friday, 2 September 2005

REGINA v LLM

Judgment

1 GROVE J: I have had the advantage of reading the draft judgment of Hulme J and I gratefully adopt his recounting of the circumstances of offence and the issues raised by the grounds of appeal.

2 There is no need for me to emphasize the serious nature of the violence and threats of violence against unprotected victims which were perpetrated by the appellant or joined in by him. Although I would give full weight to the application of the principles relating to the exercise of criminal jurisdiction with respect to children as required by s6 of the Children (Criminal Proceedings) Act 1987, I am of opinion that no less severe sentence was warranted and, subject to what follows, the appeal should be dismissed.

3 That opinion is qualified by the correction to balance of term which Hulme J has indicated should be done in order to fulfil what was obviously the intention of O’Reilly DCJ.

4 I agree with the orders proposed by Hulme J.

5 HULME J: The person identified above by the initials LLM was, at relevant times, a juvenile. So were other persons who seem to have been involved with LLM in the activities the subject of these Reasons. Section 11 of the Children (Criminal Proceedings) Act 1987 precludes such persons being described in a way that identifies them and accordingly it is convenient to use initials throughout these remarks.

6 On 18 May 2004 Judge O’Reilly sentenced LLM and a co-offender VL both of whom have sought to appeal against the sentences imposed. Both appeals were heard on the same day although at the request of their counsel, separately. A decision in VL’s case will be delivered at the same time as this decision is handed down. LLM was sentenced in respect of 2 offences, viz:-

(i) That on 1 April 2003 he did assault Patrick Chang with intent to rob him and at the time of the assault did wound Patrick Chang whilst being then in the company of AD and JB.

(ii) On 10 April 2003 he did, without consent, take and detain John Lee with the intention of obtaining an advantage, to wit, cash moneys via an automatic teller machine, the said John Lee having occasioned actual bodily harm during being detained, while in the company of AD and two other unknown males.

7 The first of these offences arises pursuant to s98 and the second pursuant to…

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 LLM

Details

AGLC: R v LLM [2005] NSWCCA 302
Case: [2005] NSWCCA 302
Decision Date: 2 September 2005

CaseChat Overview and Summary

In the case of R v LLM, the appellant, LLM, appealed against the sentences imposed by Judge O’Reilly, arguing that the sentences were manifestly excessive, and that there was a disparity between the sentences imposed on him and those imposed on his co-offender, AD. The Court of Criminal Appeal found that the sentences were manifestly excessive and that there was a disparity in the sentences. The Court held that the sentences imposed on LLM were not manifestly excessive, but the balance of the term of each sentence did not accord with what his Honour intended. The Court also found that the disparity in the sentences was unjustified and that the sentence imposed on AD was wholly inadequate. The Court allowed the appeal, quashed the sentences imposed by Judge O’Reilly on LLM, and in lieu thereof, sentenced LLM to imprisonment for a non-parole period of five years from 24 April 2003, and a balance of term of one year and eight months. The Court also ordered that LLM’s sentence be served as a juvenile offender until he attained the age of 21.

Orders