LB v R [2011] NSWCCA 220

LB v R [2011] NSWCCA 220

The sentencing discretion miscarried because the sentencing judge did not sufficiently account for the applicant's serious mental disability and intellectual incapacity, made a grooming finding not open on the evidence, failed to take into account that imprisonment would weigh more heavily on the applicant because of his mental condition, and failed to take into account that the s61M(2) offence could have been dealt with in the Local Court. Proper regard to those matters showed that a lesser sentence was warranted in law.

Jurisdiction
Australia
Judgment Date
07 October 2011
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; original sentences quashed; applicant resentenced.
Legal Topics
['aggravated Indecent Assault of a Child Under 16 Years' 'sexual Intercourse With a Child Aged Between 10 and 14 Years' 'mental Illness and Intellectual Disability in Sentencing' 'intoxication in Sentencing' 'form 1 Offences' 'summary Disposal and Local Court Sentencing Limit' 'remorse' 'rehabilitation']
['criminal Law' 'sentencing'] ['aggravated Indecent Assault of a Child Under 16 Years' 'sexual Intercourse With a Child Aged Between 10 and 14 Years' 'mental Illness and Intellectual Disability in Sentencing' 'intoxication in Sentencing' 'form 1 Offences' 'summary Disposal and Local Court Sentencing Limit' 'remorse' 'rehabilitation']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentences imposed individually and in total were unduly harsh and severe.' "Whether the sentencing judge failed to take into account or sufficiently take into account the applicant's mental condition and intellectual disability." 'Whether the sentencing judge erred in finding that the applicant groomed the victim.' 'Whether the sentencing judge failed to make any allowance for intoxication on culpability.' "Whether the sentencing judge failed to take into account that the applicant's mental problems would make prison harsher for him." 'Whether the sentencing judge erred in finding that the applicant had no remorse.' 'Whether the sentencing judge erred in making no findings in respect of rehabilitation or re-offending.' 'Whether the sentencing judge failed to take into account that the s61M(2) offence could have been dealt with in the Local Court.' 'Whether the sentencing judge failed to identify and take into account Form 1 matters in respect of a specific offence.' 'Whether the sentencing judge erred in the actual sentences he pronounced.']

Ratio Decidendi

The sentencing discretion miscarried because the sentencing judge did not sufficiently account for the applicant's serious mental disability and intellectual incapacity, made a grooming finding not open on the evidence, failed to take into account that imprisonment would weigh more heavily on the applicant because of his mental condition, and failed to take into account that the s61M(2) offence could have been dealt with in the Local Court. Proper regard to those matters showed that a lesser sentence was warranted in law.

Court Disposition

Leave to appeal granted; appeal allowed; original sentences quashed; applicant resentenced.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'Quash the sentences imposed by his Honour Sorby DCJ on 13 August 2010.' 'Count 2 - A sentence of imprisonment for a fixed term of 2 years to commence on 20 June 2010 and to conclude on 19 June 2012.' 'Count 1 - A term of imprisonment with a non-parole period of 2 years...