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6
Court of Criminal Appeal 5 May 2006

Lozanovski v R

[2006] NSWCCA 143

Sexual offences
SENTENCE ACCUMULATION MANIFEST EXCESS.

Citation: Lozanovski v R [2006] NSWCCA 143
Court: New South Wales Court of Criminal Appeal
Date: 5 May 2006
Judge(s): McColl JA, Adams J, Latham J

Background

The applicant was convicted at trial in the District Court on eight counts of sexual offences against his niece. The offending spanned from 1982 to 1989, when the complainant was aged between 9 and 16, and included indecent assault and sexual intercourse without consent. The applicant also pleaded guilty at the commencement of trial to a separate count of indecent assault of the complainant in 1996, when she was 22 years old.

Acting Judge Gibson QC sentenced the applicant on 25 February 2005. The partial accumulation of sentences produced an aggregate non-parole period of 6 years and an aggregate head sentence of 8 years and 6 months. The applicant sought leave to appeal against those sentences.

  • Whether the sentencing judge erred by refusing to treat the applicant as a person of good character on the basis of the very offences for which he was being sentenced
  • Whether the degree of accumulation of the sentences was excessive, producing a total sentence that was manifestly excessive
  • Whether the sentence imposed for Count 8 was manifestly excessive, including because the judge misstated the applicable maximum penalty

Decision

Good character. The sentencing judge found that the applicant was not a person of good character because of the conduct underlying the convictions. The Court of Criminal Appeal held this was a legal error. The Crown conceded the point. Applying the High Court's reasoning in Ryan v The Queen (2001) 206 CLR 267, a sentencing judge must determine whether an offender is of otherwise good character without reference to the very offences for which the offender is being sentenced. Because the applicant had no prior convictions, he was entitled to a finding of prior good character. The Court accepted, however, that in the circumstances of this case, that factor carried reduced weight.

Accumulation and manifest excess. The Court found that the original accumulation structure produced a total sentence that was manifestly excessive. Particular criticism attached to the sentence for Count 8, where the judge had erroneously nominated a maximum penalty of 7 years when the correct maximum was 8 years. The Court also found the non-parole period for Count 8 required adjustment. The Court restructured the accumulation so that related groups of offences ran concurrently within their group, with each group accumulating by one year upon the prior group.

Resentencing. The Court quashed the sentence for Count 8 and substituted 2 years and 6 months imprisonment. Head sentences for all other counts were confirmed. The revised structure produced a total non-parole period expiring 9 February 2008, with the applicant eligible for parole on 10 February 2008.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Count under s 61L (Indictment 1): 12 months imprisonment from 10 February 2004, expiring 9 February 2005
  • Count 1 (Indictment 2): 6 months imprisonment from 10 February 2005, expiring 9 August 2005
  • Count 2 (Indictment 2): 3 years imprisonment from 10 February 2005, expiring 9 February 2008, with a non-parole period of 2 years expiring 9 February 2007
  • Count 3 (Indictment 2): 12 months imprisonment from 10 February 2006, expiring 9 February 2007
  • Count 4 (Indictment 2): 3 years 6 months imprisonment from 10 February 2006, expiring 9 August 2009, with a non-parole period of 2 years expiring 9 February 2008
  • Counts 5, 6 and 7 (Indictment 2): 18 months imprisonment each from 10 February 2007, expiring 9 August 2008, with non-parole periods of 12 months expiring 9 February 2008
  • Count 8 (Indictment 2): 2 years and 6 months imprisonment from 10 February 2007, expiring 9 August 2009, with a non-parole period of 12 months expiring 9 February 2008
  • Applicant eligible for release to parole on 10 February 2008

Key Takeaways

  • A sentencing judge must assess prior good character without reference to the offences for which the offender is currently being sentenced. Using those very offences to deny a finding of good character is a legal error, even where the character mitigating factor ultimately carries little weight given the circumstances.
  • An offender with no prior convictions is entitled to a finding of prior good character, regardless of the gravity of the offences charged.
  • Where a sentencing judge misstates the applicable maximum penalty, that error can be relevant to a finding of manifest excess, since the nominated maximum informs the relativity of the sentence imposed.
  • The Court of Criminal Appeal confirmed that the weight attached to a finding of good character will vary according to all the circumstances, including the nature and duration of the offending.
  • In restructuring accumulation, the Court of Criminal Appeal applied the totality principle, ensuring that concurrent and accumulated sentence groups reflected both the objective gravity of the offences and the need for the non-parole period to reflect that gravity.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW): ss 61D, 61E, 61L, 90A

Cases
- R v Gent [2005] NSWCCA 370
- Ryan v The Queen (2001) 206 CLR 267
- R v Kennedy [2001] NSWCCA 527
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Ibbs v The Queen (1987) 163 CLR 447
- R v Moon (2000) 117 A Crim R 497
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- R v Slack [2000] NSWCCA 128
- R v V (1998) 99 A Crim R 297
- R v Thompson (unreported, NSWCCA, 18 June 1996)
- R v Skinner (1993) 72 A Crim R 151
- R v Dent (unreported, NSWCCA, 14 March 1991)