Lozanovski v R

Lozanovski v R - [2006] NSWCCA 143 - NSWCCA 2006 case summary — Zoe

Cases Cited (10)

R v Gent [2005] NSWCCA 370 Ryan v The Queen (2001) 206 CLR 267 R v Kennedy [2001] NSWCCA 527 Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 Ibbs v The Queen (1987) 163 CLR 447 R v Moon (2000) 117 A Crim R 497 CASES CITED: R v MJR (2002) 54 NSWLR 368 R v MJR [2002] NSWCCA 129 R v Slack [2000] NSWCCA 128 R v V (1998) 99 A Crim R 297 R v Thompson (unreported) NSWCCA 18 June 1996 R v Skinner (1993) 72 A Crim R 151 R v Dent (unreported) NSWCCA 14 March 1991

11 It is clear from his Honour's remarks set out above, that the offences for which the applicant was being sentenced were the basis of his Honour's finding that the applicant was not a person of good character. Thus, his Honour fell into error. The applicant was entitled to a finding of good character, even if, in the circumstances of the case, that factor was of reduced significance where the applicant had engaged in "a pattern of repeat offending over a significant period of time." (see R v Kennedy [2000] NSWCCA 527, per Howie J.)

12 I note in passing that his Honour's reference to s. 21A of the Crimes (Sentencing Procedure) Act 1999 is in entirely general terms. Section 21A(3)(e) and (f) are those mitigating factors corresponding to the common law principles summarised by McHugh J in Ryan and explored by the High Court in Melbourne v The Queen (1999) 198 CLR 1 ; [1999] HCA 32. Section 21A(3)(e) speaks of the absence of any record of previous convictions, and (f) refers to the fact that "the offender was a person of good character", that is, prior to the commission of the offence. Given his Honour's express finding in relation to the absence of good character, it may be concluded that s 21A(3)(f) was disregarded by his Honour, or wrongly construed.

15 The offences relating to the digital penetration of the complainant occurred in 1982, 1983 and 1989. There was no discussion in the course of the proceedings, nor was any material produced to his Honour, relating to the pattern of sentencing for like offences had the offences come before the court shortly after their commission. Whilst both the applicant's senior counsel and the Crown took this Court to particular instances of sentencing for an act of digital penetration in the period relevant to the instant offences, those examples were insufficient to establish any meaningful range. In the absence of that material and, in particular, in the absence of acceptable statistical material, the approach described by Howie J. in R v Moon (2000) 117 A Crim R 497 at 511, approved by this Court in R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 by Sully J. is apposite :- The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: …. and be proportional to the criminality involved in the offence committed: … Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will, by approaching the sentencing task in this way, effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.

17 The applicant's counsel relied on MJR and on this Court's decision in R v Slack [2000] NSWCCA 128. In the latter case, an appeal against the severity of sentences imposed for aggravated sexual intercourse without consent (digital penetration) following verdicts of guilty at trial in 2003 was successful in an altogether different context. The offences were committed in 2000 and the applicable maximum penalty was 20 years imprisonment. Both offences were committed on the same date against the same complainant, an 11 year old friend of the offender's daughter. By majority, concurrent sentences of 3 years' imprisonment with a non parole period of 18 months were substituted for concurrent sentences of 5 years imprisonment, with a non parole period of 3 years. As in the instant case, the offender in Slack had no prior convictions. The case is of little assistance given the isolated nature of the offending.

(2001) 206 CLR 267

(1999) 198 CLR 1

(1987) 163 CLR 447

(2002) 54 NSWLR 368

[2001] NSWCCA 527

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Cases Cited (10)