Citation: Lenthall v R [2004] NSWCCA 248
Court: NSW Court of Criminal Appeal
Date: 5 August 2004
Judge(s): Wood CJ at CL, Hidden J, Smart AJ
Background
The applicant pleaded guilty to aggravated break and enter with intent to steal under s 113(2) of the Crimes Act 1900, arising from a ram-raid on a Shell service station at Hornsby. He drove a stolen vehicle into the service station doorframe to force entry, and then drove it into a petrol bowser while attempting to evade police. The offence was aggravated because it was committed in company.
The District Court sentenced the applicant to five years and three months imprisonment, with a non-parole period of two years and six months. A co-accused who participated in the same offence was later sentenced by the same judge to three years imprisonment with a non-parole period of two years and three months, to be served by way of periodic detention.
The applicant sought leave to appeal on two grounds: that his sentence lacked parity with that imposed on his co-accused, and that it was in any event manifestly excessive given his genuine rehabilitation efforts.
Legal Issues
- Whether the disparity between the applicant's sentence and that of his co-accused gave rise to a justifiable sense of grievance, warranting appellate intervention on parity grounds.
- Whether the sentencing judge gave sufficient weight to the applicant's rehabilitation efforts, including whether the applicant had reached the "crossroads" such that a degree of leniency was warranted to encourage reform.
- Whether the original sentence was manifestly excessive when those factors were properly weighed.
Decision
On the parity ground, the Court of Criminal Appeal found that the sentencing judge had fallen into error by categorising the same offence at different levels of seriousness in the separate sentencing remarks for the two co-accused. The difference in head sentences, and particularly the difference in the manner of serving those sentences (full-time custody versus periodic detention), was disproportionate to any genuine differences in the objective and subjective circumstances of the two offenders. The Court held that a justifiable sense of grievance had been established, consistent with the principles in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 98 A Crim R 134.
On the manifest excess ground, the Court found that the sentencing judge had not given sufficient weight to the applicant's genuine and considerable rehabilitation efforts. The Court accepted that the applicant had reached the "crossroads," a recognised sentencing principle that permits a degree of leniency, not normally available to an offender, for the purpose of encouraging genuine reform. The principle derives from R v Osenkowski (1982) 5 A Crim R 394 and was discussed in R v Henry (1999) 46 NSWLR 346.
The Court was careful to note, consistent with R v Govinder (1999) 106 A Crim R 314 and R v Hunt [2002] NSWCCA 482, that the crossroads principle must always be applied with rigorous analysis rather than wishful thinking. Satisfied that the applicant's rehabilitation efforts were genuine, the Court reduced both the head sentence and the non-parole period. The finding of special circumstances was maintained to allow a sufficient period of supervised release to foster the demonstrated rehabilitation prospects.
Orders Made
- Leave to appeal against sentence granted.
- Sentence below quashed; in lieu thereof, the applicant sentenced to imprisonment for 3 years and 9 months, commencing 18 February 2003 and expiring 17 November 2006.
- Non-parole period of 1 year and 10 months fixed, commencing 18 February 2003 and expiring 17 December 2004.
- Commencement dates of the Blacktown Local Court sentences (each fixed terms of 4 months) varied to commence 18 December 2004 and expire 17 April 2005.
Key Takeaways
- A justifiable sense of grievance on parity grounds can arise where the same sentencing judge characterises the same offence at different levels of seriousness when sentencing co-accused separately, particularly where the resulting difference in sentence and mode of custody is disproportionate to any differences in objective or subjective circumstances.
- The "crossroads" principle, drawn from R v Osenkowski and developed in R v Henry, permits leniency beyond what an offender would ordinarily attract, where there is an acceptable basis for concluding that the offender has genuinely reached a turning point toward rehabilitation.
- Rigorous scrutiny is required before a court applies the crossroads principle: sentencing courts must guard against wishful thinking or, in the words of Spigelman CJ in R v Hunt, "the triumph of hope over experience."
- Where parity error and manifest excess are each established, both the head sentence and the non-parole period may be reduced together; the Court of Criminal Appeal maintained the approximate proportion between them to reflect the ongoing weight of the crossroads factor.
- A finding of special circumstances, justifying a longer-than-usual ratio between non-parole period and head sentence, may be maintained on appeal where a longer period of supervised post-release is needed to support demonstrated rehabilitation prospects.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 113(2) (aggravated break and enter with intent to steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 98 A Crim R 134
- R v Osenkowski (1982) 5 A Crim R 394
- R v Henry (1999) 46 NSWLR 346
- R v Govinder (1999) 106 A Crim R 314
- R v Hunt [2002] NSWCCA 482
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Lovelock (1988) 19 ALR 327
- R v Ponfield [1999] NSWCCA 135
- R v Wegner [1999] NSWCCA 405
- Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518