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Court of Criminal Appeal 29 November 2011

Lovoni v R

[2011] NSWCCA 289

Theft & property
CRIMINAL LAW SPECIAL CIRCUMSTANCES PARITY OF SENTENCE

Citation: Lovoni v R [2011] NSWCCA 289
Court: Court of Criminal Appeal, New South Wales
Date: 29 November 2011
Judge(s): Blanch J (primary reasons), Simpson J, Rothman J

Background

The appellant was convicted after trial of aggravated breaking, entering and stealing under s 112(2) of the Crimes Act 1900, following a home burglary at Gerringong on 26 August 2009. He and a co-offender entered an occupied residence, ransacked it, and fled with stolen property. During the escape, the co-offender threatened the homeowner and assaulted an off-duty police officer; the appellant played no part in those confrontations.

At the time of the offence, the appellant was on parole. The sentencing judge at Wollongong District Court imposed a total sentence of five years, comprising a non-parole period of three years and three months commencing from the date of arrest, followed by a parole period of one year and nine months.

The co-offender, who had entered a guilty plea and had additional offences taken into account on a Form 1 (including the common assault on the homeowner), received a four-year sentence with a three-year non-parole period from a different judge. The appellant appealed the severity of his sentence, raising three remaining grounds after abandoning two others.

  • Whether the sentencing judge impermissibly fettered his discretion when considering special circumstances (specifically, whether the non-parole period was too long relative to the total sentence)
  • Whether a justifiable sense of grievance arose from the disparity between the appellant's sentence and the shorter sentence imposed on the co-offender
  • Whether the head sentence and non-parole period were manifestly excessive

Decision

On the special circumstances ground, the Court noted that the non-parole period represented 65 per cent of the total sentence, below the standard statutory ratio of 75 per cent. The appellant argued the parole period should have been longer to assist with supervision and reintegration. Applying R v Simpson (2001) 53 NSWLR 704, the Court confirmed that the length of the parole period is a matter within the sentencing judge's discretion and, given the appellant's criminal history, found no reason to interfere with the assessed parole period of one year and nine months.

On the parity ground, the Court acknowledged the co-offender received a lighter sentence overall, but identified material differences between the two cases. The co-offender had pleaded guilty (attracting a 25 per cent discount, with a notional starting point of five years and four months) and had additional offences taken into account on the Form 1. The appellant's sentence was already reduced below that notional starting point. The Court applied Postiglione v The Queen (1996-1997) 189 CLR 295 and R v Kairouz [2005] NSWCCA 247, holding that a mere difference in sentences is insufficient to warrant appellate intervention; the disparity must be a "marked" or "manifest discrepancy" producing a justifiable sense of grievance. No such discrepancy was established here.

On manifest excess, the Court applied the standard from Vuni v The Queen [2006] NSWCCA 171, requiring that a sentence be shown to be "unreasonable or plainly unjust" before appellate intervention is warranted. With a statutory maximum of 20 years, a standard non-parole period of five years, and the aggravating fact that the appellant was on parole at the time of the offence, the Court found the sentence could not be characterised as manifestly excessive. All three grounds were dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the parity ground, the Court of Criminal Appeal confirmed that a disparity between co-offenders' sentences does not automatically warrant appellate intervention; the difference must amount to a marked or manifest discrepancy generating a justifiable sense of grievance, as established in Postiglione v The Queen.
  • Where a co-offender received a guilty plea discount and had additional offences taken into account on a Form 1, those distinctions can justify what might otherwise appear to be a more favourable outcome, defeating a parity argument.
  • A finding of special circumstances does not oblige a sentencing judge to extend the parole period to any particular length; the assessment remains discretionary and the Court of Criminal Appeal will generally not interfere unless clear error is shown.
  • Under the test from Vuni v The Queen, establishing manifest excess requires demonstrating the sentence was "unreasonable or plainly unjust," and an appellate court cannot substitute its own preference merely because it might have sentenced differently.
  • Being on parole at the time of the offence remained a relevant aggravating factor in assessing whether the overall sentence fell within an appropriate range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated breaking, entering and stealing; maximum penalty 20 years; standard non-parole period 5 years)

Cases
- R v Simpson (2001) 53 NSWLR 704
- Postiglione v The Queen (1996-1997) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- R v Taudevin (1996) 2 VR 402
- R v Kairouz [2005] NSWCCA 247
- Vuni v The Queen [2006] NSWCCA 171
- R v Dinsdale (2000) 202 CLR 321
- Markarian v The Queen [2005] HCA 25