REGINA v LORENZO [2001] NSWCCA 389 | Case summary

Judgment 1 POWELL JA: I will ask Bell J to deliver the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on 26 October 1993 upon the applicant following his conviction for murder after a trial before Dunford J and a jury. 3 On 26 November 1993 Dunford J sentenced the applicant to a term of seventeen years penal servitude to date from 5 October 1996 and to expire on 4 October 2013. An additional term of five and half years was specified. That term will expire on 4 April 2019. At the time the applicant stood for sentence he was serving the balance of a sentence imposed on him in the Sydney District Court in March 1984 for the offence of armed robbery. 4 The matter has a somewhat unusual history. The applicant filed a notice of appeal signifying his intention to appeal to this Court against both his conviction and the severity of his sentence on 3 December 1993. His appeal came before this court constituted by Gleeson CJ and Mahoney JA and Sperling J on 7 April 1995. Judgment was delivered on 22 May 1995 dismissing the applicant's appeal against conviction. Reference was made to the appeal against sentence in the published reasons of the court. 5 Counsel appearing for the applicant after the judgment was published observed: "In relation to the sentence, by agreement the sentence appeal was stood over to be returned to the Registrar's call-over because there were certain matters that made it impossible to argue that appeal." 6 The Chief Justice noted that there was to be a further hearing in relation to the sentence appeal and, in the light of that, stated that an order in relation to the dismissal of the appeal against sentence would be withheld. 7 The proceedings were stood over for hearing to 25 June 1996. On that date the Court was constituted by the Chief Justice, Studdert and Dunford JJ. The applicant was given leave to file in Court an affidavit sworn on 25 June 1996. The appeal against sentence was stood out of the list to a date to be fixed. The Chief Justice directed that the Court should be constituted by a Bench comprising other than himself Mahoney JA and Sperling J, who had heard the appeal against conviction. Thereafter, for reasons that it is not necessary to go into, the matter was before the Registrar at numerous call-overs before being finally listed for hearing today. 8 At the commencement of proceedings Mr Neil SC, who appears on behalf of the applicant, foreshadowed that leave would be sought to rely on an affidavit sworn by the applicant on 25 June 1996 and which was filed in court on 25 June 1996 and a further affidavit sworn by the applicant on 31 July 2001. He submitted that the history of the proceedings was consistent with an expectation that further evidence might be led on the hearing on the sentence appeal. That does not seem to me to flow from a reading of the transcript of proceedings of 22 May 1995. 9 Mr Neil submitted that the court might receive the further evidence upon what was described as the first limb of the principles set out in Goodwin (1990) 51 A Crim R 328. In that case Hunt J (as he then was) drew together the principles upon which this Court might receive fresh evidence on an appeal against the severity of sentence at p 330: "(1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision; (2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and (3) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings." 10 In the course of developing his submission on this aspect, Mr Neil indicated that a substantial portion of the material on which it was sought to rely went to matters occurring after the applicant's sentencing. There was, however, some material touching on the question of assistance to the authorities which pre-dated the sentence hearing. Dealing with this latter category of material it was Mr Neil's contention that it might be received if this Court was of the view that it was of such significance that the sentencing Judge may have regarded it as having a real bearing upon his decision without the need to satisfy the remaining two limbs of the Goodwin test. 11 Such an approach is contrary to Goodwin and to the line of authority in this Court concerning the reception of fresh evidence. It is to be noted that, in contrast to the unusual circumstances of a case such as R v Many (1990) 51 ACrimR 54, it appears that the applicant had made known to his legal advisers the circumstance that he had provided some assistance to the authorities. There was in evidence material outlining the nature of that assistance to which his Honour referred in the course of his remarks on sentence. 12 There is no basis for considering that the existence of the material contained in the affidavit sworn on 25 June 1996 (as to matters of assistance to the authorities prior to the date of sentencing) was not understood by the applicant to be a matter of significance nor that those who advised him had not adverted to the importance of placing before the sentencing judge material on this topic. 13 As to the remainder of the material the subject of the affidavit sworn on 25 June 1996 and the subsequent affidavit, it relates to matters of assistance to the authorities given since the date of the applicant's sentencing. In Mr Neil's submission it was open to this Court, again by reference to the first limb of the three tests set out in Goodwin to receive that material. 14 The review of a sentence in the light of subsequent events is a matter for the executive Government and not this Court; R v Munday [1981] 2 NSWLR 177. In my view, the applicant failed to make out a proper basis for the reception of the further evidence. 15 The hearing proceeded upon the basis that it was necessary for the applicant to identify error in the approach adopted by the sentencing Judge before this Court might receive the further evidence. 16 The applicant relied upon written submissions filed on 12 March 1999. Those written submissions addressed three grounds of challenge. Only two grounds were pressed in oral argument by Mr Neil. 17 Those were, firstly, that his Honour erred in that he gave insufficient weight to the principle of totality. The sentence of twenty two and a half years imposed in relation to the murder conviction was expressed to commence upon the expiration of the balance of the sentence being served for the armed robbery offence. The effect of the combined sentences was to see the applicant serving a minimum term of twenty-one and a half years with an additional term of five and a half years. 18 It is appropriate to briefly refer to the facts as found by the learned sentencing Judge. 19 The applicant was convicted of the murder of Mrs Andree Marguerite Edwards on 2 August 1989. His Honour observed that the deceased: "...was found dead in the walk-in wardrobe of the master bedroom of her home at Woollahra. She had been severely beaten about the head resulting in major lacerations, a fractured skull and brain damage. Her mouth had been tightly gagged with a necktie tied at the back of her neck; her hands had apparently been tied although they were not so tied when the body was discovered and she had finally been strangled - this last event being the cause of death. She had been shopping and attended an aerobics class at Bondi Junction earlier that morning and on her return home had disturbed her attackers who had apparently entered through an open door leading to the bedroom from the upstairs verandah of the house. Blood and other evidence downstairs indicated that probably after turning off the burglar alarm, Mrs Edwards had placed her keys, et cetera and mail from the letter box on the kitchen bench and had then been savagely attacked in the kitchen, then taken (presumably dragged) upstairs and further attacked and killed in the master bedroom and walk-in wardrobe. A diamond engagement ring, a sapphire dress ring, a watch and gold bracelet had been removed from her body and her handbag, her wallet and gym carry bag (with their contents) had also been taken, establishing that the motive for the entry to the house had been burglary." 20 His Honour went on to set out the history of the police investigation, noting that it had reached an impasse until September 1991, when following the arrest of the applicant in Queensland, and, apparently in an attempt to ingratiate himself with the authorities, he said he had information concerning the death of Mrs Edwards. 21 The applicant told police that a person whom he named had borrowed his car and that that person was the killer of Mrs Edwards. This account, plainly enough, was rejected by the jury. His Honour went on, in the course of his reasons for sentence, to observe: "Whilst the circumstantial evidence at the scene suggests that there was only one intruder, all the different versions you have given are to the effect that there were two persons present and the jury's verdict establishes that you were either the actual killer or were present at the time she was killed either participating in the killing or aiding and abetting. In my view you were no mere aider and abettor but a principal in the first degree; either you were alone or, if there were two of you, you were both attacking Mrs Edwards. …… The precise role you played as a principal in the first degree may be a matter of some speculation, but I regard that the position of the tie used to strangle the deceased, located as it was on top of the towel which had your bloodstains on it, suggests strongly that you were the actual killer. This was a cowardly and brutal attack and murder in her own home in broad daylight of a woman who was going about her own business and who had never done you any harm and I can see no mitigating factors whatsoever. The fact that she was killed to avoid the possibility of her identifying you in respect of the burglary, if anything, only aggravates the objective gravity of the offence". 22 His Honour noted the applicant's criminal history, including the circumstance that in respect of the robbery offence he was still serving a sentence the minimum term of which expired on 5 October 1996 and that the whole of the applicant's pre-sentence custody had been referable to previous or current offences and not the subject offence. 23 It is against this background that it is necessary to turn to the challenge that his Honour paid insufficient regard to the principle of totality in sentencing. 24 Mr Neil referred us to the judgment of McHugh J in Postiglione v The Queen (1997) 189 CLR 295, at page 308: The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged:R v Holder [1983] 3 NSWLR 245 at 260. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: Holder [1983] 3 NSWLR 245 at 260. Recent decisions in the Court of Criminal Appeal: R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197; R v Gordon (1994) 71 A Crim R 459, have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence. The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459 at 466.: 'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.' 25 It is to be noted that Dunford J observed at page 9 of his reasons for sentence: "I have regard to the principle of totality in regard to the sentences you are currently serving." 26 The applicant was on parole in relation to an offence of armed robbery when he committed the subject offence. It was a murder characterised by the sentencing judge as a cowardly and brutal attack aggravated by the circumstance that the deceased was killed to avoid the possibility that she might identify the applicant. Having regard to these matters I do not accept that there is merit to the challenge that his Honour failed to pay sufficient regard to the principle of totality in structuring the sentence for the murder to commence at the expiration of the sentence imposed for the armed robbery. 27 The second ground of challenge advanced was that his Honour had failed to advert to a consideration of special circumstances for the purposes of s 5(2) of the Sentencing Act 1989. In particular it was contended that his Honour had not given consideration to the likelihood that the applicant would serve the whole of his sentence in protection. It was submitted that such a consideration is a recognised basis upon for a finding of special circumstances so as to permit a departure from the statutory proportion as between what was then the minimum and additional terms. 28 It is true that his Honour did not in terms refer to a consideration of whether there existed special circumstances for the purpose of s 5(2) of the Sentencing Act. However, his Honour did take into account the applicant's custodial situation. He noted that as a result of the assistance previously given by the applicant to police he was being held in strict protection. His Honour proceeded upon the assumption that the applicant would need to serve the whole of his sentence in conditions of protection. His Honour observed that these conditions are more onerous and involve less chance of participation in programs such as work release than are available to prisoners in ordinary discipline. He said: "I have taken this factor into account but in my view its significance is less in cases of brutal murder than it is in some other types of offences." 29 His Honour was of the view that this objectively most serious murder required that the applicant serve a minimum term of seventeen years and (after consideration of the principle of totality) that it was appropriate that that sentence commence at the expiration of the sentence then being served by the applicant. I am not persuaded that his Honour has been shown to have erred in coming to that view. I do not accept the proposition put by Mr Neil that, having regard to the applicant's situation as a protection prisoner, it was incumbent on his Honour to find special circumstances and to fix a minimum term appreciably less than that which was in fact imposed. 30 In my view, the applicant has failed to identify any error in principle adopted by the learned sentencing Judge. I would propose that the application for leave to appeal be granted but the appeal be dismissed. 31 POWELL JA: I agree. 32 SULLY J: I also agree. 33 POWELL JA: The orders of the court are thus those that have been proposed by Bell J. **********

REGINA v LORENZO

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