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15
Court of Criminal Appeal 19 October 2020

Lonsdale v R

[2020] NSWCCA 267

Theft & property
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIOD OF 3 YEARS OFFENDERS

Citation: Lonsdale v R [2020] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 19 October 2020
Judge(s): Hoeben CJ at CL; Beech-Jones J; N Adams J

Background

The applicant was one of three men sentenced in the District Court at Penrith on 16 October 2019 for a single offence of attempt specially aggravated break and enter with intent to commit a serious indictable offence, in company and armed with a dangerous weapon, contrary to s 113(3) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 20 years imprisonment and has no standard non-parole period.

The offence occurred on 24 June 2018 at a private residence in Hazelbrook. The applicant and two co-offenders approached the house in broad daylight, each carrying weapons. The applicant carried a silver baseball bat and covered his face. One co-offender carried a loaded pump-action shotgun; the other concealed a large wrench. The front door was kicked in and one offender entered. The group remained on the premises for approximately two minutes before fleeing in a vehicle, which police stopped shortly afterwards on the Great Western Highway.

The applicant was sentenced to four years imprisonment with a non-parole period of three years. He sought leave to appeal on three grounds: that the sentencing judge erred in declining to find special circumstances, that the judge incorrectly assessed his criminal history and background, and that he had a legitimate sense of grievance arising from the lighter sentences imposed on his co-offenders.

  • Whether the sentencing judge erred in refusing to make a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would have extended the parole period beyond the statutory ratio
  • Whether the sentencing judge failed to properly take into account that the applicant had not previously served a custodial sentence
  • Whether the applicant had a legitimate sense of grievance arising from a disparity between his sentence and those imposed on his co-offenders

Decision

Ground 1: Special circumstances. The Court found no error in the sentencing judge's refusal to find special circumstances. The judge had expressly considered the applicant's rehabilitation needs and concluded that the standard ratio of non-parole to total sentence would provide sufficient time in the community under supervision. The judge also took into account the applicant's history of failing to engage with rehabilitation programs when at liberty. The Court of Criminal Appeal held that this reasoning was open on the evidence and disclosed no appellable error.

Ground 2(a): First custodial sentence. The applicant argued the sentencing judge failed to give adequate weight to the fact that this was his first custodial sentence. The Court rejected this ground. The sentencing judge had in fact expressly noted the applicant's first-time custodial status and turned his mind to the applicable principles. Mere disagreement with the weight assigned to that factor does not establish appellable error under the House v The King standard.

Ground 2(b): Parity with co-offenders. The applicant's sentence was three months longer than that of one co-offender, who had a more favourable personal background. The Court applied the test in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, which requires a "marked disparity giving rise to the appearance of injustice" before appellate intervention is warranted. The Court found the sentencing judge was entitled to assess the criminal histories of the applicant and his co-offender as not relevantly different, and that the relatively modest three-month difference did not constitute the kind of marked disparity that would justify intervention. All three grounds failed and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's refusal to find special circumstances will not be disturbed on appeal where the judge has genuinely turned their mind to the applicant's rehabilitation needs and provided adequate reasoning grounded in the evidence.
  • The principle that a first custodial sentence deserves particular weight does not require a specific outcome; the applicant must demonstrate the sentencing judge failed to consider the factor at all, not merely that insufficient weight was given to it.
  • Under Green v The Queen; Quinn v The Queen, a court of criminal appeal will only intervene on parity grounds where there is a "marked disparity" between sentences that gives rise to the appearance of injustice. A modest three-month difference between co-offenders with comparable criminal histories did not meet that threshold.
  • Where co-offenders act pursuant to a joint criminal enterprise, a sentencing court may decline to differentiate between them solely on the basis of which specific weapon each carried during the offence.
  • Appellate courts reviewing sentence appeals apply the House v The King standard: disagreement with the weight a sentencing judge assigned to a subjective factor is not, without more, a ground for appellate intervention.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 113
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 12, 44

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- AB v R [2014] NSWCCA 31
- Burrows v R [2017] NSWCCA 45
- Calhoun (a pseudonym) v R [2018] NSWCCA 150
- CM v R [2020] NSWCCA 136
- Dwayhi v R; Bechara v R [2011] NSWCCA 67
- Gibson v Regina [2019] NSWCCA 221
- Hart v Attorney General for NSW [2016] NSWCCA 71
- Lloyd v R [2017] NSWCCA 303
- McTague v R [2020] NSWCCA 83
- Additional authorities cited in the judgment: Caristo v R, Dang v R, Fenech v R, GP v Regina, Maglis v R, McKittrick v R