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Court of Criminal Appeal 9 February 2001

R v Lemene

[2001] NSWCCA 5

Also reported as (2001) 118 A Crim R 131
Theft & propertyPublic order & justice offences
APPEAL AGAINST SEVERITY OF SENTENCE ERROR IN TAKING MATTERS INTO ACCOUNT SENTENCING

Citation: Lemene v R [2001] NSWCCA 5
Court: Court of Criminal Appeal, New South Wales
Date: 9 February 2001
Judge(s): Simpson J; Dowd J

Background

The appellant pleaded guilty in the District Court to ten serious offences: two counts of robbery, seven counts of armed robbery, and one count of break, enter and steal in circumstances of aggravation. Each offence carried a maximum penalty of twenty years' imprisonment. In addition, the sentencing judge was asked to take into account thirty-two further offences under the then-applicable s 21 procedure (now replicated in Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999), the great majority of which were also armed robbery offences.

The District Court judge imposed identical sixteen-year sentences across all ten counts on the indictment. The appellant sought leave to appeal against the severity of those sentences.

The Crown conceded on appeal that the sentencing structure was legally flawed, and the Court of Criminal Appeal agreed, identifying two distinct errors in the sentencing approach.

  • Whether the sentencing judge correctly applied the High Court's decision in Pearce v The Queen (1998) 194 CLR 610 when imposing identical sentences across all ten counts.
  • Whether the sentence imposed on count 2 (the count on which the s 21 offences were taken into account) was structured in a way that adequately reflected the additional criminality represented by thirty-two further offences.
  • How the s 21 procedure operates in principle, including what benefit it is intended to confer on an offender and what constraints it places on a sentencing court.
  • What sentences should be imposed on re-sentencing.

Decision

Error 1: Breach of Pearce The Crown conceded, and the Court accepted, that the sentencing judge had used a "totality first" approach, selecting an overall appropriate term and then imposing that same length on each individual count. The Court confirmed that Pearce prohibits this method. A sentencing judge must fix an appropriate sentence for each individual offence, and only then consider questions of accumulation, concurrence, and totality. No single count of armed robbery, even accounting for its objective seriousness and the s 21 matters attached to it, warranted a sixteen-year sentence standing alone. The identical sentences across all counts therefore had to be restructured.

Error 2: Distortion of the s 21 count The second error lay in attaching thirty-two additional offences, mostly armed robbery, to a single count of armed robbery and then failing to ensure the resulting sentence was observably distinct from the sentences on the other counts. Simpson J noted that this created a distortion: the sheer volume and seriousness of the s 21 matters was apt to make the sentence for count 2 look disproportionate when compared with the other counts, and the method made it difficult to identify any discernible premium for the additional criminality. The Court noted that the Crown bears responsibility for ensuring the s 21 procedure is not misused in this way.

The s 21 procedure explained The Court took the opportunity to clarify the purpose of the s 21 procedure. It is not a mechanism for an offender to confess to further crimes without any additional penalty, nor does it produce only a small increment. However, an offender who uses it is entitled to expect a meaningfully lighter consequence than would follow from separate prosecution of each offence. Without that benefit, the procedure would offer no incentive to offenders and lose its administrative utility.

Re-sentencing The Court re-sentenced the appellant, imposing five-year fixed terms on nine of the ten counts, structured in staggered concurrent and partly concurrent arrangements. Count 2, carrying the burden of the thirty-two s 21 matters, attracted a twelve-year sentence with a non-parole period of eight years. Special circumstances were found in relation to count 2, given the appellant's extensive history of institutionalisation and the need to support rehabilitation at the end of a long accumulated term.

Orders Made

  • The application for leave to appeal was granted.
  • The appeal was allowed.
  • The sentences imposed by Shillington DCJ were quashed.
  • In lieu, the following sentences were imposed:
  • Counts 1 and 3: Fixed terms of five years each, served concurrently, commencing 10 November 1998 and concluding 9 November 2003.
  • Counts 4 and 6 to 10: Fixed terms of five years each, served concurrently with each other and partly concurrent with the above, commencing 10 November 2000.
  • Count 5: Fixed term of five years, commencing 10 November 2001 and concluding 9 November 2006, partly concurrent with the previous sentences.
  • Count 2 (with 32 Form One matters): Twelve years' imprisonment, commencing 10 November 2001 and concluding 9 November 2013, partly concurrent with the previous sentences, with a non-parole period of eight years concluding 9 November 2009.

Key Takeaways

  • Following Pearce v The Queen, a sentencing court must fix an individually appropriate sentence for each count on an indictment before addressing accumulation, concurrence, and totality. Imposing a uniform sentence across all counts derived purely from a totality assessment is a legal error.
  • Where the s 21 procedure is used to take additional offences into account, the sentence for the principal count must be observably distinct from sentences on other counts, and must contain a discernible component reflecting the additional criminality.
  • The s 21 procedure (now replicated in Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999) confers a genuine benefit on an offender, but it is not a mechanism to avoid meaningful additional punishment for the admitted offences.
  • Attaching a very large number of serious offences of the same character to a single count creates structural difficulties for a sentencing court. The Court of Criminal Appeal noted that the Crown bears the onus of ensuring the procedure is not applied in a way that distorts the outcome.
  • Special circumstances justifying a variation from conventional non-parole proportions may be established where a lengthy accumulated sentence is involved and the offender's rehabilitation needs are significant, particularly where the offender has spent most of their life in custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3, Division 3; s 44
- Criminal Procedure Act 1986 (NSW), s 21
- Sentencing Act 1989 (NSW), s 5

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Gardner (Unreported, NSWCCA, 12 April 1994)
- R v Hammoud (Unreported, NSWCCA, 15 December 2000)
- R v Henry & Ors (1996) 46 NSWLR 436
- R v Hodge (Unreported, NSWCCA, 2 November 1993)
- R v Jenkyns (Unreported, NSWCCA, 19 May 1993)
- R v Morgan (1993) 70 A Crim R 368
- R v Thompson; R v Houlton [2000] NSWCCA 309
- R v Vougdis (1989) 41 A Crim R 125