Regina v Michael Lenard; Regina v Michael Fail

LEGISLATION CITED: Crimes Act 1900 (NSW) ss 99(1), 323(a) Criminal Appeal Act 1912 (NSW) s 6(3)

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Allpass (1993) 72 A Crim R 561 R v Dodd (1991) 57 A Crim R 349 CASES CITED: R v Elfar [2003] NSWCCA 358 R v Holder and Johnston [1983] 3 NSWLR 245 R v McGourty [2002] NSWCCA 335 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Tait (1979) 46 FLR 386 Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

Regina (Appellant) PARTIES: Michael Lenard (Respondent) Michael Fail (Respondent)

FILE NUMBER(S): CCA 2006/2168 (Lenard); 2006/2169 (Fail)

Ms J Dwyer (Crown) COUNSEL: Mr J Stratton SC (Respondent Lenard) Ms C Nash; Mr D Kang (Respondent Fail)

S Kavanagh (Solicitor for Public Prosecutions) SOLICITORS: Legal Aid Commission (Respondent Lenard) Ford Criminal Lawyers (Respondent Fail)

LOWER COURT FILE NUMBER(S): 05/11/0766 (Lenard); 05/11/0569 (Fail)

• 12 - IN THE COURT OF CRIMINAL APPEAL CCA 2006/2168 CCA 2006/2169

BEAZLEY JA SULLY J HISLOP J

1 November 2006 REGINA v MICHAEL LENARD REGINA v MICHAEL FAIL Judgment 1 BEAZLEY JA: Michael Lenard and Michael Fail were each found guilty by a jury of one count of 'Demand Money with Menaces' pursuant to s 99(1) of the Crimes Act 1900 (NSW) (the Crimes Act) and one count of 'Do an Act with Intent to Influence Witness' contrary to s 323(a) of the Crimes Act. The offence under s 99(1) carries a maximum penalty of ten years imprisonment. The offence under s 323(a) of the Crimes Act carries a maximum penalty of seven years imprisonment. 2 In respect of the 'Influence Witness' offence, the trial judge, his Honour Hulme DCJ, sentenced Fail to a term of imprisonment of 18 months to commence on 3 February 2005 and to expire on 2 August 2006, with a balance of term of six months to commence on 3 August 2006 and to expire on 2 February 2007. In respect of the 'Demand Money with Menaces' offence, his Honour sentenced Fail to a term of imprisonment of one year and three months, to commence on 3 August 2005 and to expire on 2 November 2006, with the balance of term of one year and nine months to commence on 3 November 2006 and to expire 2 August 2008. His Honour thus imposed an effective sentence of three years and six months, with a non-parole period of one year nine months. 3 In respect of the 'Influence Witness' offence, Lenard was sentenced to a term of imprisonment of one year and five months, to commence on 8 July 2005 and to expire on 7 December 2006, with the balance of term of six months to commence on 8 December 2006 and to expire on 7 June 2007. In respect of the 'Demand Money with Menaces' offence, Lenard was sentenced to a term of imprisonment of one year and two months, to commence on 8 December 2005 and to expire on 7 February 2007, with the balance of term of one year and seven months, to commence on 8 February 2007 and to expire on 7 September 2008. The sentence imposed constituted an effective period of sentence of three years two months and a non-parole period of one year seven months. Lenard's sentence in respect of the 'Influence Witness' offence commenced three months after the date of his arrest on 8 April 2005, as it was made totally cumulative upon a period of imprisonment of three months imposed on 29 April 2005 at Liverpool Local Court, for the offence of 'Drive whilst Disqualified'. 4 The Crown appeals against sentence on the basis that the sentences imposed on each offender in respect of each offence were manifestly inadequate.

Circumstances of the offence 5 On 9 December 2004, Mr Christopher Carroll was the victim of a home invasion in which he was assaulted and property including a computer was stolen. The offenders involved in the home invasion were Christopher Whyte and Patrick Crouch. Shortly after the commission of the home invasion offence, Crouch heard that the police were looking for his vehicle and he went to Lenard for help. Crouch is Lenard's uncle. Crouch was arrested on 30 December 2004 and was refused bail. Shortly thereafter, on 5 January 2005, Carroll received an email and a letter, which his Honour described as "the beginning of an extortion campaign that was organised and carried out by the offenders Lenard and Fail". 6 The extortion campaign involved eight telephone calls, two letters and two emails, in which money of up to $200,000 was demanded from Carroll in exchange for the return of his computer that had been stolen by Crouch and Whyte. In the initial letter, Carroll was threatened that if he did not comply with the directions given in it, his computer would be released to the authorities. The underlying basis of the threat to release the computer to the authorities was a belief that it contained child pornography. 7 In addition to the demands for money and the threats relating to the release of the computer to the authorities, demands were also made that Carroll change his police statement regarding the home invasion, so as to exculpate Crouch. 8 His Honour found that Lenard made three of the eight telephone calls to Carroll. Whyte made one telephone call, and another person, Sateki Tuipulotu, made two. His Honour found that Whyte and Tuipulotu made the calls at the behest of Fail. There was no finding by his Honour as to who made the other two telephone calls. His Honour found that Fail sent the second of the two letters, in which a demand for payment of $20,000 was made, payment being demanded in the week the letter was sent, with an ongoing payment schedule for the remaining $180,000, as well as demands that his Honour described as being designed "to achieve the objective of securing the release of Crouch from prison". 9 The 'campaign' was attempted to be carried though to effective completion when an arrangement was made with Carroll for a meeting at a somewhat remote location on 3 February 2005, at which the computer would be handed over to him in exchange for $20,000. Fail and Lenard had arranged for Tuipulotu to effect the handover. Fail and Lenard went with Tuipulotu to the arranged location, remaining out of sight during the proposed handover. The three men were arrested that day. 10 His Honour characterised the commission of the offences as involving "quite a deal of planning, cunning and guile". His Honour observed that, although "the one series of activities made up the two offences, they had quite different objectives and the harm caused or intended was directed at different entities". It was agreed by the Crown and counsel for the respondents that his Honour's last-mentioned reference was intended to draw a distinction between the fact that Carroll was the victim of the 'Demand Money' offence and that the affected entity of the 'Interfere with Witness' offence was the criminal justice system itself. 11 In sentencing the respondents, his Honour considered that Lenard and Fail should be treated as equally culpable for both offences. His Honour had regard to the subjective features of each, observing that whilst they were different, they were of broadly similar significance, save that he considered that Lenard had shown remorse sufficient to be reflected in a "slight difference in the sentences imposed". His Honour also recognised that general deterrence was an important consideration in respect of these particular offences. 12 The Crown has appealed on the basis that each of the individual sentences is manifestly inadequate and fails to reflect the objective criminality of the offences. In particular, it was submitted that his Honour erred in three respects: firstly, failing to properly assess the objective seriousness of the offences and giving that factor inadequate weight; secondly, giving undue weight to the subjective circumstances of each respondent; and thirdly, structuring the sentences so that the combined sentences and non-parole periods resulted in a departure from the statutory ratio such that the period in custody was equivalent to only half of the total term. 13 Before considering these specific grounds of appeal, it is appropriate to refer briefly to the principles that govern a Crown appeal and which are relevant to this case. First, error must be shown: R v Tait (1979) 46 FLR 386 at 388; Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] and [109]. It is not sufficient for the appellate Court to consider that some different sentence should be imposed. Secondly, double jeopardy applies, in the sense that a person once convicted and sentenced is, by reason of a Crown appeal, required to be subjected to the sentencing process a second time: R v Allpass (1993) 72 A Crim R 561; Wong and Leung v The Queen at [110]. Thirdly, and it follows from the preceding principle, the sentence which an appellate court is entitled to impose as a consequence of a successful Crown appeal will generally be less than that which would have been imposed by the sentencing court: R v Holder and Johnston [1983] 3 NSWLR 245 at 269; and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [62]. Finally, as a matter of general principle, even if error is found, an appellate court may only re-sentence if some other sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW); R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [79]. 14 The Crown accepted that there was no apparent error in his Honour's expression of sentencing principle. However, it was submitted that the sentences imposed were so inadequate that his Honour must have failed adequately to take into account the objective seriousness of the offences, or minimised the objective seriousness having regard to the subjective features. 15 Emphasis was placed upon the fact that the offence of 'Influence Witness' was a serious offence, threatening the integrity of the criminal justice system and thus calling for condign punishment. Further, the offence was committed in circumstances where each of the respondents knew of the home invasion and it took the form of demands on Carroll to change his police statement over a period of one month. It was submitted that the circumstances of the offence were aggravated by the fact that it was carried out in conjunction with the extortion campaign that was being waged upon Carroll for the return of his computer. In relation to the 'Demand Money with Menaces' offence, it was pointed out that it involved a number of threats over a period of time in circumstances where the victim was already vulnerable. 16 The Crown also submitted that there should have been a greater degree of accumulation of sentences, in accordance with the totality principles referred to by the High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 and Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15. It was submitted that the extent of the accumulation was insufficient, so that the overall effect of the sentences imposed was to fail to impose a sentence that reflected the totality of the criminality of each respondent. It was submitted that the offences were each of a distinct character and had a different purpose and that there was not such commonality of the elements of the offences as to justify the degree of concurrency allowed by his Honour. 17 The Crown relied upon the statement by this Court in R v Dodd (1991) 57 A Crim R 349 at 354 per Gleeson CJ, Lee CJ at CL and Hunt J that: "… there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place … The relative importance of the objective facts and subjective features of a case will vary … Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case …" 18 It was submitted on behalf of each of the respondents that there was no error in the approach taken by the sentencing judge. In particular, it was submitted that his Honour assessed the objective seriousness of the offences, describing them as "quite serious" and making a finding, to which I have already referred, that the offences involved "planning, cunning and guile". Further, his Honour took into account general deterrence, particularly in relation to the offence of 'Influence Witness' because of the "strong community interest in maintaining the integrity of the criminal justice system". His Honour took into account the relevant aggravating factors and had appropriately dealt with the relevant subjective circumstances of each.

Consideration 19 In my opinion, this is not a case where there is any obvious error of principle discernible in his Honour's remarks on sentence. Indeed, his Honour took into account all the matters that were relevant to these particular offences, the circumstances of their commission and the subjective circumstances of the individual respondents. Nonetheless, I am of the opinion that the sentences imposed are manifestly inadequate. It does not matter, in my opinion, whether this is so for the reasons advanced by the Crown although I am inclined to think there may have been error on each basis. Whatever the basis of the error, the result is one that cannot be sustained. The sentences imposed are appealably inadequate. 20 Both offences are objectively serious offences. The offence of 'Influence Witness' is a direct affront to the criminal justice system. The circumstances in which the offence was committed displayed a high degree of criminality. The offence of 'Demand Money with Menaces' involved a concerted campaign over a period of time, which the victim, Carroll, found most frightening. Indeed, as his Honour found, he felt "a lot of fear and terror". Carroll understood one of the messages that he received as involving a direct threat to his life. 21 Because I am of the opinion that the sentences are manifestly inadequate, it follows that the Court is entitled to re-sentence. As I have already stated, the Court may only do so if some other sentence is warranted in law: see above at [13]. In determining whether any other sentence is warranted in law, the Court must have regard to the principles governing Crown appeals, to which I have already referred. Bearing those principles in mind, I am of the opinion that some other sentence is warranted in law. 22 In considering the sentences which I consider ought to be imposed, two further considerations need to be discussed. The first relates to the acceptance by the trial judge that Lenard had demonstrated remorse and that that should be reflected in a modest difference in the sentences. It was submitted by the Crown that the circumstances surrounding the expression of remorse were not such as should have been taken into account by the trial judge. In this regard, Lenard, on sentence, had tendered a letter written to the Court in which he accepted that the jury's verdict was correct. 23 In R v McGourty [2002] NSWCCA 335, Wood CJ at CL said: "24 So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to a psychologist. Recently this Court has criticised the practice of placing material of this kind before sentencing judges, in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of a record: Regina v Qutami [2001] NSWCCA 353, at paras 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ).

25 I whole heartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested."

See also R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353. 24 In R v Elfar [2003] NSWCCA 358 at [25], the Court said: "The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - ( R v Palu per Howie J with whom Levine J and Heydon J agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so." 25 However, so far as is known, Crown counsel appearing at trial did not object to the tender of the letter, nor was his Honour's attention drawn to R v Elfar. In those circumstances, it is my opinion that, this being a Crown appeal, the Court should not interfere with that aspect of the sentencing process so that the sentence which this Court imposes ought to make a like allowance to that made by his Honour. Having said that, his Honour considered he had made an adjustment of two months. In fact, the adjustment was three months. I suspect this difference was due to a mathematical error. I propose that an adjustment of two months be maintained as indicated by his Honour in his remarks. 26 The second matter to which particular reference needs to be made is in respect of his Honour's finding of special circumstances. His Honour found that there were special circumstances in this case for altering the usual ratio of parole to non-parole periods. His Honour observed that both were "mature men" who were being sentenced to imprisonment for the first time (other than the short period of imprisonment imposed on Lenard in respect of a 'drive whilst disqualified' offence). His Honour also took into account the fact of accumulation as relevant to special circumstances. Although I consider a ratio of 50 per cent was generous, it is not a proportion with which I would interfere on a Crown appeal.

27 I should make one further comment. The non-parole period imposed by his Honour in respect of Fail expires on 2 November 2006. Fail has thus served the whole of his non-parole period, save for a couple of days and is undoubtedly looking forward to his release. I consider that this is a relevant matter to be taken into account in the exercise of the Court's discretion. Nonetheless, I remain of the view that the sentences imposed by the trial judge were so inadequate that the Court should re-sentence the respondents. It must also be said that Lenard, whose release is not so imminent, must also be looking forward to his release in a relatively short period of time. I have taken this factor into account in deciding the sentences that I consider this Court ought to impose.

28 Subject to the matters to which I have specifically referred, no challenge was made to the matters his Honour took into account as being relevant to sentence. Because of the expedition with which this judgment has been prepared, I do not propose to set those matters out again. Rather, they should be taken as relevant to the sentencing in this matter and they have been taken into account on the re-sentence on the same basis as considered by his Honour. 29 I would propose the following orders and sentences:

In Appeal No. CCA 2006/2168 being the appeal in the matter of Michael Lenard :

1. Appeal allowed; 2. Quash the sentences imposed by the trial judge; 3. In lieu sentence the respondent Michael Lenard: On count 3, being the offence of 'Influence Witness' contrary to s 323(a) of the Crimes Act 1900 (NSW), the respondent Michael Lenard is sentenced to imprisonment for a non parole period of one year six months to commence on 8 July 2005 and to expire on 7 January 2007 with a balance of term of one year and six months to commence on 8 January 2007 and to expire on 7 July 2008. On count 2, being the offence of 'Demand Money with Menaces' contrary to s 99(1) of the Crimes Act 1900 (NSW), the respondent Michael Lenard is sentenced to imprisonment for a non-parole period of one year seven months to commence on 8 January 2006 and to expire on 7 August 2007 together with a balance of term of two years five months to commence on 8 August 2007 and to expire on 7 January 2010. The practical effect of these sentences is to impose an effective sentence of four years six months to commence on 8 July 2005 and to expire on 7 January 2010 and an effective non-parole period of two years one month to commence on 8 July 2005 and to expire on 2 August 2007.

In Appeal No. CCA 2006/2169 being the appeal in the matter of Michael Fail :

1. Appeal allowed; 2. Quash the sentences imposed by the trial judge; 3. In lieu sentence the respondent Michael Fail as follows: On count 3, being the offence of 'Influence Witness' contrary to s 323(a) of the Crimes Act 1900 (NSW), the respondent Michael Fail is sentenced to imprisonment for a non parole period of one year six months to commence on 3 February 2005 and to expire on 2 August 2006 with a balance of term of one year six months to commence on 3 August 2006 and to expire on 2 February 2008. On count 2, being the offence of 'Demand Money with Menaces' contrary to s 99(1) of the Crimes Act 1900 (NSW), the respondent Michael Fail is sentenced to imprisonment for a non-parole period of one year nine months to commence on 3 August 2005 and to expire on 2 May 2007 together with a balance of term of two years three months to commence on 3 May 2007 and to expire on 2 August 2009.

The practical effect of these sentences is to impose an effective sentence of four years six months to commence on 3 February 2005 and to expire on 2 August 2009 and an effective non-parole period of two years three months to commence on 3 February 2005 and to expire on 2 May 2007. 30 SULLY J: I agree with Beazley JA. 31 HISLOP J: I agree with Beazley JA. **********

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