Lovoni v R [2011] NSWCCA 289 | Case summary

Court of Criminal Appeal (NSW)|2011-11-29|Before: Simpson J, Blanch J, Rothman J

Judgment 1BLANCH J: This is an appeal against the severity of a sentence imposed at Wollongong District Court. The applicant was convicted after trial on a charge of aggravated breaking, entering and stealing on 26 August, 2009 contrary to s112(2) of the Crimes Act which carries a maximum penalty of 20 years and a standard non-parole period of five years. He was sentenced to imprisonment comprising a non-parole period of three years and three months to commence 26 August 2009, the date of his arrest, and expire on 25 November 2012 with a parole period of one year and nine months to commence on 26 November 2012. He was on parole at the time of the offence. His parole was revoked and the balance of his parole did not expire until 15 November 2009.

The facts 2At about 10.00 a.m. on 26 August 2009 Mrs Kathy Wallace left her home at 32 Bridges Road, Gerringong in order to drive to her mother's house which was not far away. When she left her home it was locked and secure. As she was leaving she saw two males walking west from the park at the corner of Bridges Road and Fern Street. They were walking in her direction. She also noticed a black Commodore registered number ABM 84D parked and unattended in the park. The males were walking from the direction of the Commodore up towards Mrs Wallace's home. 3Mrs Wallace had left to attend her mother's house. She was to give her mother a lift to Wollongong to attend a medical appointment. Mrs Wallace senior had a dog and it was necessary to return from her mother's home to 32 Bridges Road in order to leave the dog at Mrs Wallace's home. When she returned there at about 10.15 she saw that her front door was open and the door from the garage into the house was also open. As she entered the building she could hear footsteps upstairs. The two males that she had seen earlier in Bridges Road were in the top storey of the two-storey home. They went out onto the balcony and proceeded to jump off it. Each was carrying a bag of property which had been taken from Mrs Wallace's home. 4It would appear that the applicant climbed down onto a bin on the driveway and that the co-offender jumped onto the ground in the front yard of the house. He dropped his bag and then picked it up. Mrs Wallace had also sought to pick up the bag of goods and there was a struggle between Mrs Wallace and the co-offender. The co-offender told Mrs Wallace that he had a knife and swung at Mrs Wallace, a closed fist missing her head but causing her fear and causing her to let go of the bag. Both the applicant and the co-offender then ran east along Bridges Road towards Fern Street. 5The shouting of Mrs Wallace and her mother alerted neighbours who contacted police. They also alerted an off duty police officer, Senior Constable Paul Gregory Winston, who was on his roof in that street seeking to repair it. As the co-offender and the applicant ran towards the Commodore, Senior Constable Winston announced his office and called upon them to stop. The applicant turned away from the vehicle and ran in the direction of an old church known as Chittick Lodge, a Uniting Church property. He then ran on in the direction of Henry Lee Drive. The co-offender ran to the rear of the church with the bag containing a laptop and other items. Senior Constable Winston again informed the co-offender of his office, told him that he was under arrest and told him to lie on the ground. The co-offender did not comply and confronted the senior constable. There was then an altercation between the senior constable and co-offender, in which no part was played by the applicant. 6The interaction between Senior Constable Winston and the co-offender took them towards the black Commodore in which the co-offender told the police officer that he had a gun. In addition, in a struggle, the co-offender kicked Senior Constable Winston in the head. He then backed away and the co-offender moved away and started to walk down a nearby driveway with the officer following at a distance of about three metres. Again Senior Constable Winston demanded that the co-offender surrender himself and acknowledge that he had been arrested but he continued to resist. 7Eventually other police arrived at the scene and there was then a concerted attempt by police to find both of the offenders now known to be the co-offender and the applicant. The vehicle was identified as being owned by Thomas Vale of Flinders and it was subsequently ascertained that Mr Vale had lent his vehicle to the co-offender on the morning of this day. The police secured a perimeter around a significant area of Gerringong. During the time the perimeter was in place, police were informed by a witness that there was a male hiding in a bush at the front of premises in Henry Lee Drive. 8In spite of conflicting evidence at the trial as to who this person was, the jury accepted that the person was the applicant. 9The witness then checked where the male had been hiding and located a laptop, two iPods, a PSP game console, an ANZ card, a camera and a pair of Australian sports socks. 10The applicant was ultimately approached by the police at the southern end of Werri Beach. He was searched and the police found 25 dollars in two Australian notes, a twenty dollar note and a five dollar note. The applicant was arrested at 12 noon and taken to Port Kembla Police Station where he declined to be interviewed and declined to participate in an identification parade. 11The co-offender was located hiding beneath premises in Sharwood Place, Gerringong and was arrested. 12Examination of the premises at 32 Bridges Road, Gerringong showed that the front timber door had been forced and the entire premises ransacked. 13All the items stolen from the house were recovered, including 25 dollars in notes which Mrs Wallace had left on a kitchen bench with a school permission note for her daughter.

The grounds of appeal 14I note grounds of appeal 1 and 2 have been abandoned.

Ground 3: His Honour impermissibly fettered his discretion in considering the allowance for special circumstances 15The complaint made here is in reality that the non-parole period should have been shorter to allow a longer period on parole. The non-parole period specified represents a ratio of 65 per cent rather than the normal statutory ratio of 75 per cent. 16In R v Simpson (2001) 53 NSWLR 704 it was held the primary consideration in determining special circumstances should be the length of the minimum period of incarceration. The Court went on to say the length of the parole period is significant and in some cases it will be desirable for it to be long. The decision as to the length of the parole period is a matter for the judge to assess and in the normal case this Court would not interfere in that assessment, unless there are clear reasons for doing so. In this case it was assessed that a parole period of one year and nine months was appropriate and bearing in mind the criminal history of the applicant, I see no reason to disagree with that assessment.

Ground 4: The applicant has a justifiable sense of grievance when considering the sentence imposed on the co-offender Robert Campbell 17The co-offender Campbell entered a plea of guilty before Judge Conlon and he entered that plea to the offence of aggravated break, enter and steal. Judge Conlon also took into account on a Form 1 the common assault offence involving Mrs Wallace and two other offences. The sentence Judge Conlon imposed was one of four years with a three year non-parole period. That sentence involved a discount of 25 per cent which the judge in this case noted involved a starting point of a sentence of five years and four months. 18This applicant was 26 years of age and the co-offender was 36 years of age. They were both on parole at the time of the offence. The co-offender had a criminal record involving sentences of imprisonment including for break, enter and steal and he had served a term of eight years with a five year non-parole period for aggravated armed robbery. The sentencing judge reduced the sentence for this applicant to less than five years and four months because of considerations of parity. The sentencing judge also took into account a dysfunctional upbringing where his mother was an Aborigine and his father Fijian and his father drank significant amounts of alcohol and was physically abusive. The death of his father led to depression and the use of illicit drugs. Judge Conlon found a similar background existed in respect of the co-offender. 19The sentence ultimately imposed was one of five years with a non-parole period of three years and three months. That sentence was less than the notional starting point of the co-offender of five years and four months. The question then comes down to whether there is a disparity bearing in mind the co-offender entered a plea of guilty but had extra matters taken into account on the Form 1. 20In Postiglione v The Queen (1996-1997) 189 CLR 295 at 301 in the joint judgment of Dawson and Gaudron JJ it was said: "However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'." 21At page 309 McHugh J said: "If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen , Gibbs CJ, with whom Wilson J agreed, said that an appellate court should intervene where 'the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done'. Mason J stated that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J, with whom Wilson J also agreed, was of the view that '[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice'." 22At page 323 Gummow J said: "The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done. In R v Taudevin (1996) 2 VR 402 at 404 , Callaway JA said, in a passage with which I agree: 'The important words are 'manifestly', 'justifiable' and 'objective'. There is much to be said for the view that all three requirements are variations on the same theme, ie that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements." 23And at page 335 Kirby J said: "The removal of serious and unjustifiable disparities in the treatment of like cases is a legitimate goal of the administration of criminal justice." 24It is evident from these authorities that a simple disparity is not enough and in order to attract appellate intervention it must be categorised as a manifest discrepancy in the sense of a difference that is clearly excessive. Moreover in R v Kairouz [2005] NSWCCA 247, it was said this Court would reserve a discretion not to intervene or intervene to only a limited degree where it is apparent that the sentence under comparison was unjustifiably lenient. 25In this case there was a reduction of four months in the head sentence from that imposed on the co-offender. In the end result he will spend three months longer in custody and be on parole for one year and nine months instead of the one year the co-offender will be on parole. In view of the different considerations in the two cases, I do not believe it can be said this is a marked disparity which gives rise to a justifiable sense of grievance and I would dismiss this ground of appeal.

Ground 5: The head sentence and the non-parole period are manifestly excessive 26In Vuni v The Queen [2006] NSWCCA 171 at paragraph 33 Hoeben J said: "To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was "unreasonable or plainly unjust" ( Dinsdale (2000) 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. ( Markarian v The Queen [2005] HCA 25 at [26] - [28])." 27In this case the maximum penalty is one of 20 years and there is a standard non-parole period of five years. Both of those factors have to be taken into account together with the objective and subjective features of this case which include the fact the applicant was on parole. Bearing all those factors in mind, I do not believe it can be said this sentence is manifestly excessive. 28I propose the following orders: (1)Grant leave to appeal. (2)Dismiss the appeal. 29SIMPSON J: I agree. 30ROTHMAN J : I agree with the orders proposed by Justice Blanch and the reasons he has given. 31SIMPSON J: The orders of the Court will be as proposed by Justice Blanch. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2011

Lovoni v R

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