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Court of Criminal Appeal 21 May 2002

REGINA v. LOLESI

[2002] NSWCCA 189

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL DISPARITY DIFFERENT REGIMES APPLICANT ADULT

Citation: Regina v Lolesi [2002] NSWCCA 189
Court: Court of Criminal Appeal, New South Wales
Date: 21 May 2002
Judge(s): Greg James J; Smart AJ

Background

The appellant was an adult woman who pleaded guilty in the District Court at Campbelltown to three counts of robbery armed with an offensive weapon, and two counts of stealing a motor vehicle. The offences occurred across four days in late March 2001. Her co-offender, a male approximately 20 months her junior, had been dealt with separately in the Children's Court under the Children (Criminal Proceedings) Act 1987.

The appellant surrendered herself to police, volunteered admissions about the robberies, and expressed a desire to address her drug dependency. The sentencing judge in the District Court acknowledged her early plea, contrition, and rehabilitation prospects, but imposed sentences that included a head sentence of three years and four months with a two-year non-parole period on the most serious count.

The appellant sought leave to appeal on the ground of sentencing disparity, arguing the difference between her sentence and that imposed on the child co-offender was unjustifiably large, particularly given the differing custodial regimes under which each would serve their sentence.

  • Whether the disparity between the appellant's sentence and the lighter sentence imposed on the child co-offender in the Children's Court was sufficient to enliven the Court of Criminal Appeal's discretion to intervene
  • Whether the differing sentencing regimes applicable to adults and children are relevant to a disparity analysis
  • Whether the circumstances of the appellant, including her youth, first gaol term, contrition, early plea, and rehabilitation prospects, constituted special circumstances warranting a different sentence structure

Decision

The Court accepted the Crown's concession that the discretion to intervene was enlivened. It noted that courts can have regard to sentences imposed on co-offenders in the Children's Court when assessing disparity, and that the differing regimes under which the respective sentences would be served formed part of the relevant comparison. The Court found the overall difference between the two outcomes was sufficiently large to warrant interference.

The Court identified several factors favouring the appellant: her youth, the fact this was her first custodial sentence, her genuine contrition, her early plea of guilty, her cooperation with police by voluntarily surrendering and admitting her own involvement, and her willingness to engage in a custodial drug rehabilitation programme. The sentencing judge had himself found she was more a follower than an instigator and that prolonged exposure to hardened offenders would be detrimental.

Together, these factors were treated as special circumstances justifying a restructured sentence with a longer parole period relative to the non-parole period. The Court allowed the appeal, quashed the sentences below, and substituted reduced sentences. Parole was to be supervised and to include conditions requiring engagement with the Probation and Parole Service and drug rehabilitation.

Orders Made

  • Appeal allowed; sentences below quashed
  • Count one and count three: fixed term of 18 months imprisonment commencing 3 April 2001, expiring 2 October 2002
  • Count four: sentence of two years and nine months imprisonment commencing 3 April 2002, expiring 2 January 2004, wholly concurrent with counts one and three; non-parole period of 18 months expiring 2 October 2002
  • Remaining counts: fixed terms of nine months each, unchanged
  • Parole order providing for release to supervised parole pursuant to clause 67 of the Crime (Sentencing Procedure) Regulation 2000, requiring submission to the supervision of the Probation and Parole Service and engagement with drug rehabilitation, remaining in force until the end of the term of imprisonment

Key Takeaways

  • Sentencing disparity between an adult offender and a child co-offender can enliven an appellate court's discretion to intervene, even where the two were sentenced under different legislative regimes
  • The differing conditions under which adults and children serve custodial sentences are a relevant consideration when comparing sentences for disparity purposes
  • A combination of factors, including a first custodial sentence, youth, genuine contrition, early plea, and credible rehabilitation prospects, may collectively constitute special circumstances justifying a restructured sentence with an extended parole period
  • Where a sentencing court finds that prolonged imprisonment alongside hardened offenders would be detrimental and that supervised parole would benefit the offender, those findings can support a reduction of the overall custodial term on appeal
  • Supervised parole conditions requiring drug rehabilitation can be attached to a parole release order under the Crime (Sentencing Procedure) Regulation 2000

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(6), 154A(1)(a)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crime (Sentencing Procedure) Regulation 2000 (NSW), cl 67

Cases
- Diamond (CCA, unreported, 18 February 1993)
- Steele (CCA, unreported, 17 April 1997)
- GDP (1991) 54 A Crim R 112
- Govinden (1999) 106 A Crim R 316
- Boney [2001] NSWCCA 432
- Coglan [1999] NSWCCA 292