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Court of Criminal Appeal 27 September 2001

REGINA v LORENZO

[2001] NSWCCA 389

Homicide

Citation: Regina v Lorenzo [2001] NSWCCA 389
Court: NSW Court of Criminal Appeal
Date: 27 September 2001
Judge(s): Powell JA, Sully J, Bell J

Background

The appellant was convicted of murder following a trial before Dunford J and a jury in the Supreme Court. The victim had been attacked in her home, beaten, gagged, and strangled. At the time of sentencing in October 1993, the appellant was already serving the balance of a sentence for armed robbery imposed in 1984.

Dunford J sentenced the appellant to seventeen years penal servitude for the murder, commencing at the expiration of the armed robbery sentence, with an additional term of five and a half years. The combined effect was a minimum term of approximately twenty-one and a half years.

The appellant had filed a notice of appeal against both conviction and sentence in December 1993. His conviction appeal was dismissed in May 1995. The sentence appeal was stood over on multiple occasions and did not come on for final hearing until September 2001, nearly eight years after the original sentencing.

  • Whether the Court of Criminal Appeal could receive fresh evidence, including material about assistance provided to authorities both before and after sentencing
  • Whether the sentencing judge gave insufficient weight to the principle of totality when imposing a cumulative sentence
  • Whether the sentencing judge erred by failing to make an express finding of "special circumstances" under s 5(2) of the Sentencing Act 1989, given that the appellant was likely to serve his entire sentence in protection custody

Decision

Fresh evidence. The appellant sought to rely on two affidavits, including one dealing with assistance to authorities provided before sentencing and another dealing with post-sentence events. Bell J applied the three-limb test from Goodwin v R (1990) 51 A Crim R 328, which requires that the material be significant, that its significance was not appreciated at the time, and that it was not made known to the appellant's legal advisers. The Court found the pre-sentence assistance material did not satisfy the Goodwin test because it was known to the appellant and his advisers and had already been placed before the sentencing judge. As for post-sentence conduct, the Court confirmed that reviewing a sentence in light of subsequent events is a matter for the executive government, not the Court of Criminal Appeal.

Totality. The appellant argued that Dunford J gave insufficient weight to the principle of totality, which requires a sentencing court to consider whether the combined effect of consecutive sentences is disproportionate to the overall criminality. Bell J was not persuaded that the sentencing judge erred. The judge had specifically considered totality and was entitled to conclude, given the objective seriousness of the murder, that the cumulative sentence was appropriate.

Special circumstances and protection custody. Although Dunford J did not expressly invoke s 5(2) of the Sentencing Act 1989 (which permits a departure from the standard ratio between minimum and additional terms where special circumstances exist), he had in fact considered the appellant's status as a protection prisoner. The judge acknowledged that protection custody was more onerous, involving fewer opportunities to participate in programs such as work release, but concluded that this consideration carried less weight in a case of brutal murder. Bell J found no error in that approach and declined to accept the submission that protection custody status made a finding of special circumstances mandatory.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Goodwin test for receiving fresh evidence on a sentence appeal requires satisfaction of all three limbs where the material predates the sentencing hearing; it is not sufficient to rely on the first limb alone.
  • Post-sentence conduct, including assistance to authorities after sentencing, is a matter for executive consideration (such as parole) rather than appellate review of the original sentence.
  • A sentencing judge is not required to make an express finding of "special circumstances" under s 5(2) of the Sentencing Act 1989, provided the relevant considerations are genuinely taken into account in the sentencing exercise.
  • Protection custody status may constitute a relevant sentencing consideration, but the Court of Criminal Appeal confirmed it does not automatically compel a finding of special circumstances, particularly in cases involving serious violence.
  • No error of principle was established merely because the combined effect of cumulative sentences resulted in a lengthy total minimum term, where the sentencing judge had directly considered totality.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW), s 5(2)

Cases
- Goodwin v R (1990) 51 A Crim R 328
- R v Many (1990) 51 A Crim R 54
- R v Munday [1981] 2 NSWLR 177
- Postiglione v The Queen (1997) 189 CLR (cited in submissions; full citation not reproduced in the judgment extract)