R v VL - [2005] NSWCCA 301

CITATION:
R v VL [2005] NSWCCA 301

HEARING DATE(S): 2 May 2005

JUDGMENT DATE:

2 September 2005

JUDGMENT OF:
Grove J at 1; Hulme J at 2; Simpson J at 55

DECISION:
See paragraph 54

PARTIES:
Regina
VL

FILE NUMBER(S):
CCA 2004/3164

COUNSEL:
Crown: J Bennett SC
Applicant: M Dennis

SOLICITORS:
Crown: S Kavanagh
Applicant SE O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/0465

LOWER COURT JUDICIAL OFFICER:
O'Reilly QC DCJ

- 1 -

2004/3164

GROVE J
HULME J
SIMPSON J

Friday, 2 September 2005

REGINA v V L

Judgment

1 GROVE J: I agree with Hulme J.

2 HULME J: The person identified above by the initials VL was, at relevant times, a juvenile. So were other persons who seem to have been involved with VL 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.

3 On 18 May 2004, Judge O’Reilly sentenced VL and a co-offender LLM 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 LLM’s case will be delivered at the same time as this decision is handed down.

4 VL was sentenced in respect of 1 offence, viz:-

That 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.

5 The offence arises pursuant to s86(3) of the Crimes Act 1900 and rendered VL liable to imprisonment for 25 years.

6 In sentencing VL in respect of this offence his Honour took into account 2 offences on a Form 1 of:-

(i) On 10 April 2003 the armed robbery of Dr Lee of mobile phones, a handheld computer, a wallet and money.

(ii) On 9 May 2003, being in possession of 0.7 grams of cannabis.

7 In imposing sentences Judge O’Reilly expressed himself as follows:-

“I fix a non-parole period of four years from 9 May 2003. He will be eligible for release to parole on 8 May 2007. I sentence him to a full term sentence of six years and I would invite Counsel to check these because I am notorious for poor mathematics – a full term of six years imprisonment from 9 May ’03, expiring 8 May ’09. Order that so far as possible, that the sentence be served in a juvenile detention centre.”

8 The 9th May 2003 was the date of the Applicant’s arrest. His Honour asked whether he needed to make a finding of special circumstances to comply with s19(5) (of the Children (Criminal Proceedings) Act)and was told by counsel appearing for the Crown “Only in relation…

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 VL

Details

AGLC: R v VL [2005] NSWCCA 301
Case: [2005] NSWCCA 301
Decision Date: 2 September 2005

CaseChat Overview and Summary

The case of R v VL was heard in the New South Wales Court of Criminal Appeal. VL, a juvenile at the time of the offence, was sentenced by Judge O’Reilly for kidnapping and armed robbery. The appeal focused on various errors in the sentencing process, including the consideration of standard non-parole periods, the treatment of aggravating factors, and the failure to address special circumstances and the nature of the criminal activity. The Court found that the sentencing judge erred in considering certain factors as aggravating without proper qualification, failed to address special circumstances as required by statute, and made a mathematical error in calculating the total term of the sentence. The appeal was allowed, and the sentence was quashed. The Court imposed a new sentence, reducing the total term to account for the mathematical error and extending the non-parole period to ensure appropriate consideration of the juvenile offender's circumstances.

Orders