Citation: Regina v Michael Lenard; Regina v Michael Fail [2006] NSWCCA 345
Court: NSW Court of Criminal Appeal
Date: 1 November 2006
Judge(s): Beazley JA; Sully J; Hislop J
Background
Two respondents, Lenard and Fail, were convicted by a jury of demanding money with menaces (contrary to s 99(1) of the Crimes Act 1900 (NSW)) and doing an act with intent to influence a witness (contrary to s 323(a) of the same Act). The convictions arose from a coordinated extortion campaign targeting a home invasion victim, Christopher Carroll, who was also a witness in related criminal proceedings.
The campaign involved eight telephone calls, two letters, and two emails demanding up to $200,000 from Carroll in exchange for the return of his stolen computer, which the offenders believed contained child pornography. In addition to the money demands, Carroll was pressured to alter his police statement to exculpate one of the home invasion offenders (Crouch, who was Lenard's uncle). The scheme involved considerable planning and culminated in an arranged handover meeting on 3 February 2005, at which all three participants were arrested.
The District Court sentenced each respondent to an effective term of approximately three and a half years, with non-parole periods of under two years. The Crown appealed, contending those sentences were manifestly inadequate.
Legal Issues
- Whether the sentences imposed by Hulme DCJ were manifestly inadequate, having regard to the objective seriousness of the offences
- Whether the sentencing judge gave insufficient weight to objective criminality and excessive weight to the subjective circumstances of the respondents
- Whether the structure of the sentences, including the calculation of non-parole periods, was correct in law
- Whether, on a Crown appeal, "some other sentence" was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW)
Decision
The Court of Criminal Appeal, in a judgment delivered by Beazley JA (with Sully J and Hislop J agreeing), allowed both Crown appeals. The Court found that the sentences imposed at first instance were manifestly inadequate and did not adequately reflect the objective seriousness of the conduct.
The Court emphasised that the "influence witness" offence struck directly at the integrity of the criminal justice system, making general deterrence a particularly weighty sentencing consideration. The extortion campaign was characterised by sustained planning, cunning, and the exploitation of Carroll's vulnerability over an extended period.
While acknowledging that a Crown appeal does not simply produce the sentence the Crown would prefer, the Court was satisfied that resentencing was warranted. The Court applied the totality principle in structuring the revised sentences, ensuring the overall effective sentences appropriately reflected the cumulative criminality of the two distinct offences, which targeted different victims and caused different harms.
On the question of non-parole periods, the Court departed from the standard statutory ratio of non-parole to balance of term, finding special circumstances that justified a longer balance of term. This reflected the need for appropriate supervision on release given the circumstances of each offender.
Orders Made
Lenard:
- Appeal allowed; original sentences quashed
- "Influence Witness" count: non-parole period of 1 year 6 months (from 8 July 2005), balance of term 1 year 6 months
- "Demand Money with Menaces" count: non-parole period of 1 year 7 months (from 8 January 2006), balance of term 2 years 5 months
- Effective total sentence: 4 years 6 months; effective non-parole period: 2 years 1 month
Fail:
- Appeal allowed; original sentences quashed
- "Influence Witness" count: non-parole period of 1 year 6 months (from 3 February 2005), balance of term 1 year 6 months
- "Demand Money with Menaces" count: non-parole period of 1 year 9 months (from 3 August 2005), balance of term 2 years 3 months
- Effective total sentence: 4 years 6 months; effective non-parole period: 2 years 3 months
Key Takeaways
- Offences involving threats to procure a change in a witness's statement engage the integrity of the criminal justice system as a distinct harm, separate from any harm caused to the individual victim, and this elevates the importance of general deterrence in sentencing.
- Where a single course of criminal conduct produces two distinct offences directed at different victims and different societal interests, a sentencing court must ensure cumulative sentences reflect the full extent of that separate criminality.
- The Court of Criminal Appeal confirmed that a manifestly inadequate sentence on a Crown appeal will be disturbed where it fails to properly balance objective seriousness against subjective circumstances, even where those subjective factors are genuine and significant.
- Special circumstances justifying departure from the standard statutory non-parole ratio can be found where the structure of cumulative sentences or the need for post-release supervision warrants a longer balance of term.
- In allowing both appeals, the Court increased each respondent's effective sentence from approximately three and a half years to four years and six months, underscoring that sustained, planned extortion campaigns attract substantial custodial terms.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 99(1), 323(a)
- Criminal Appeal Act 1912 (NSW) s 6(3)
Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Johnson v The Queen (2004) 78 ALJR 616
- Pearce v The Queen (1998) 194 CLR 610
- R v Allpass (1993) 72 A Crim R 561
- R v Dodd (1991) 57 A Crim R 349
- R v Elfar [2003] NSWCCA 358
- R v Holder and Johnston [1983] 3 NSWLR 245
- R v McGourty [2002] NSWCCA 335
- R v Qutami (2001) 127 A Crim R 369
- R v Simpson (2001) 53 NSWLR 704
- R v Tait (1979) 46 FLR 386
- Wong and Leung v The Queen (2001) 207 CLR 584