Citation: REGINA v Lenard Clarence JONES [2002] NSWCCA 494
Court: Court of Criminal Appeal, New South Wales
Date: 9 December 2002
Judge(s): Bell J, Buddin J
Background
The applicant pleaded guilty in the District Court to five counts of dishonestly obtaining motor cycles by deception, contrary to s 178BA of the Crimes Act 1900. Each offence involved presenting a counterfeit Westpac bank cheque to private sellers who had advertised their motor cycles in a trading publication. The offences were committed within a short period in May 1999 and were carried out under a false identity.
At sentencing, the applicant also asked the court to take into account 46 further offences under the Form 1 procedure. Those additional matters included further motor cycle frauds, stealing, possession of an unregistered semi-automatic rifle and a silencer, possession of car breaking implements, and 30 counts of obtaining cash deposits for a computer that was never supplied.
Judge Keleman SC of the District Court sentenced the applicant to a principal term of two years and eight months imprisonment, with a non-parole period of one year and eight months. The remaining four counts attracted concurrent sentences of eight months. The applicant, who appeared in person in the Court of Criminal Appeal, sought leave to appeal on grounds that the sentences were manifestly excessive.
Legal Issues
- Whether fresh psychiatric evidence tendered by the applicant on appeal warranted a different sentencing outcome.
- Whether the sentencing judge gave sufficient weight to the applicant's bipolar mood disorder and need for rehabilitation when structuring the sentences.
- Whether the sentences were manifestly excessive in light of the applicant's age, prior good character, and mental condition.
- Whether imprisonment in full-time custody was appropriate given the applicant's psychiatric circumstances.
Decision
The Court considered the applicant's application to adduce fresh evidence, which consisted largely of updated psychiatric material relating to his bipolar mood disorder diagnosis and its treatment. However, the Court noted that the applicant's mental condition was already well before the sentencing judge, who had received a report from Dr Nielssen in November 2001 concluding that the applicant was experiencing a manic episode when the offences were committed.
On the question of manifest excess, Bell J found the challenge to be "a hopeless one." The offences were objectively serious when considered together, having regard to their number, the clear planning they involved, and the aggregate sums obtained by deception. The sentencing judge had specifically found that, notwithstanding the applicant's mental illness, he had acted with knowledge of what he was doing and understood the gravity of his conduct.
The Court observed that the overall sentence already reflected marked leniency. Judge Keleman had structured the sentences so that all counts ran concurrently with the principal term, and the non-parole period was set at one year and eight months against a head sentence of two years and eight months. That structure demonstrated the sentencing judge's acceptance of the significance of the applicant's psychiatric condition.
No specific error in the sentencing judge's approach was identified by the applicant, and the Court found none independently. Bell J proposed that leave to appeal be granted but that the appeal be dismissed. Buddin J agreed.
Orders Made
- Leave to appeal against the severity of the sentence granted.
- Appeal dismissed.
Key Takeaways
- A diagnosis of bipolar mood disorder, and evidence of a manic episode at the time of the offences, can constitute a significant mitigating factor in sentencing, but it does not preclude a full-time custodial sentence where the offending was planned and the offender understood the gravity of their conduct.
- Fresh psychiatric evidence on appeal carries limited weight where the sentencing court already had access to expert evidence addressing the same condition and reached considered findings based on that material.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the concurrent structure of multiple sentences and a reduced non-parole period can reflect adequate weight given to mental illness as a mitigating factor.
- No error was established simply because an applicant argues that greater weight should have been given to rehabilitation over deterrence; the sentencing court's discretion in balancing those considerations will be respected absent identifiable error.
- Where an applicant cannot point to a specific error in the sentencing judge's reasoning, a challenge based solely on manifest excess faces a high threshold, particularly for offences involving systematic planning across multiple victims.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Cases:
- Abbott v R (1985) 17 A Crim R 355
- R v Barton [2001] NSWCCA 63; 121 A Crim R 185
- Goodwin v R (1990) 51 A Crim R 328
- R v McKenna (unreported, NSWCCA, 16 October 1992)
- R v Thompson [2000] 49 NSWLR 383; 115 A Crim R 104
- R v Wright (1997) 93 A Crim R 48
- Regina v Tait & Bartley (1979) 24 ALR 473