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Court of Criminal Appeal 28 October 2010

R v Lesi

[2010] NSWCCA 240

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE NEED TO RE SENTENCE.

Citation: R v Lesi [2010] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 28 October 2010
Judge(s): McClellan CJ at CL, Kirby J, Hoeben J

Background

The respondent pleaded guilty in the District Court to two counts of robbery armed with a dangerous weapon and two counts of attempted robbery armed with a dangerous weapon, each carrying a maximum penalty of 25 years imprisonment. The offences involved a series of brazen bank and cash business robberies committed over approximately six weeks in late 2007, carried out with co-offenders using firearms, sledgehammers, and crowbars. Nine further matters were listed on four Form 1 documents (meaning they were taken into account at sentencing without separate convictions).

Judge Finnane RFD QC sentenced the respondent in the District Court on 14 May 2010. The resulting sentences produced a total non-parole period of 7 years, commencing 10 November 2007, with a balance of term of 4 years expiring 9 November 2018. The Crown appealed, contending the sentences were manifestly inadequate and the result of several distinct sentencing errors.

The Court of Criminal Appeal was asked to determine whether the sentencing judge had erred by:

  • Imposing sentences that failed to reflect the objective seriousness of the offences
  • Failing to give proper weight to the Form 1 offences when sentencing on Count 1
  • Failing to apply the principles in Pearce v The Queen (1998) 194 CLR 610 when structuring cumulative sentences (those principles require that the total sentence must adequately reflect the totality of the criminal conduct)
  • Giving undue emphasis to the respondent's youth
  • Giving undue emphasis to the respondent's drug addiction
  • Giving undue emphasis to the fact that the offences were not committed while the respondent was on parole
  • Imposing sentences that were manifestly inadequate overall

Decision

The Court allowed the Crown appeal on all grounds. Hoeben J (with McClellan CJ at CL and Kirby J agreeing) found that the original sentences were affected by multiple errors that warranted re-sentencing rather than mere adjustment.

On objective seriousness, the Court found that the offences were serious examples of armed robbery. They involved disguised offenders, multiple weapons, and systematic targeting of financial institutions. The original sentences did not adequately reflect this gravity, particularly given the number and nature of related matters on the Form 1 documents, which included accessory after the fact to two separate armed robberies and a further attempted armed robbery.

The Court also found that the sentencing judge failed to apply the Pearce principles correctly. Those principles require that where multiple offences are sentenced, each sentence must reflect the individual seriousness of that offence, and cumulation must be structured so the total sentence is proportionate to the overall criminality. The original sentences did not achieve this. Additionally, the sentencing judge gave excessive weight to subjective factors, including the respondent's youth and drug addiction, to the point where those matters overshadowed the objective seriousness of the conduct.

On re-sentencing, the Court applied a 25 percent discount for the respondent's early guilty pleas and had regard to the material in the respondent's affidavit. The revised sentences produced a total non-parole period of 10 years, commencing 10 November 2007 and expiring 9 November 2017, with a balance of term of 4 years expiring 9 November 2021.

Orders Made

  • The Crown appeal in respect of Counts 1, 2, 3, and 4 was allowed.
  • Count 1: non-parole period of 6 years from 10 November 2007, expiring 9 November 2013; balance of term of 4 years expiring 9 November 2017.
  • Count 2: non-parole period of 4 years from 10 November 2010, expiring 9 November 2014; balance of term of 3 years expiring 9 November 2017.
  • Count 3: non-parole period of 4 years from 10 November 2011, expiring 9 November 2015; balance of term of 3 years expiring 9 November 2018.
  • Count 4: non-parole period of 5 years from 10 November 2012, expiring 9 November 2017; balance of term of 4 years expiring 9 November 2021.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Form 1 offences must be given genuine, identifiable weight when sentencing on the principal count to which they are attached, and not treated as a formality.
  • Under the Pearce principles, each sentence in a series of cumulative terms must independently reflect the gravity of the individual offence, while the overall structure must also be proportionate to the total criminality involved.
  • Subjective mitigating factors such as youth and drug addiction are relevant to sentencing but cannot be applied to such a degree that they mask the objective seriousness of the offences.
  • In dismissing all grounds of the respondent's resistance to the Crown appeal, the Court reaffirmed that Crown appeals against sentence serve a legitimate public interest in maintaining consistency and confidence in the administration of criminal justice.
  • A 25 percent guilty plea discount was applied on re-sentencing, demonstrating that the Court balanced the need for increased sentences with appropriate recognition of the respondent's early cooperation with the criminal process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(2), 344A

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Everett and Phillips v The Queen (1994) 181 CLR 295
- R v Henry (1999) 46 NSWLR 346
- Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146
- R v Hamieh [2010] NSWCCA 189
- C-P v R [2009] NSWCCA 291