Citation: McGovern aka Lanesbury v R [2021] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 4 August 2021
Judges: Bell P, Rothman J, Bellew J
Background
The applicant pleaded guilty in the District Court to six offences: four counts of indecent assault on children (two sisters aged five and eight at the time of the offending in 2010), one count of causing grievous bodily harm with intent, and one count of breaking and entering a dwelling while occasioning grievous bodily harm (the latter two counts involving the victims' father in 2019). The sentencing judge imposed an aggregate sentence of 17 years imprisonment with a non-parole period of 10 years.
At the sentencing hearing, the Crown's sentence summary asserted that the 2019 offending was aggravated by the fact that the applicant was on conditional liberty at the time. Defence counsel initially conceded this point, but then made a further submission that appeared to contradict that concession. The confusion was left unresolved during the hearing.
Critically, the Crown identified before sentence was passed that its position on this aggravating factor was erroneous, but failed to bring that to the sentencing judge's attention until after sentence had been handed down. The sentencing judge had relied on the conditional liberty aggravation in her reasons. The applicant then sought leave to appeal, arguing that this sequence of events led to a miscarriage of justice.
Legal Issues
- Whether the applicant should be permitted to resile from the concession made by his counsel at the sentencing hearing regarding conditional liberty.
- Whether the confusion arising from contradictory submissions, combined with the Crown's failure to correct its error before sentence, resulted in a miscarriage of justice.
- Whether, if error was established, a lesser sentence was warranted in a fresh exercise of sentencing discretion.
Decision
The Court of Criminal Appeal granted leave to appeal and confirmed that sentencing error had occurred. The sentencing judge had found the 2019 offending to be aggravated by the applicant being on conditional liberty, a finding that was based on erroneous Crown submissions and a confused record at first instance. The Court accepted that the applicant should be permitted to resile from the concession, given the contradictory submissions and the unresolved state of the record.
All three judges agreed, however, that no lesser sentence was warranted. Bellew J conducted a fresh sentencing exercise, examining the objective seriousness of the offending and the circumstances of the offender. The 2010 offending against two young children was grave; the 2019 offending, which involved a pre-planned attack on the victims' father with a knife in his own home while the applicant was on bail and subject to an Apprehended Violence Order, was serious in its own right and independently warranted significant condemnation.
Rothman J, agreeing with Bellew J, observed that even accounting for the erroneous aggravating factor, the aggregate sentence remained well within range. The original sentence of 17 years with a 10-year non-parole period was confirmed. The Court also took the opportunity to observe that practitioners must ensure sentence proceedings are properly conducted and do not have the capacity to lead sentencing judges into error. The Crown, in particular, bore responsibility for bringing its own error to the judge's attention before sentence was passed.
Orders Made
- Leave to appeal against sentence granted.
- The appeal dismissed.
Key Takeaways
- Error was established where the Crown submitted an aggravating factor (conditional liberty) that was later identified as incorrect before sentence was passed, but was not corrected until after sentence was handed down, and where defence counsel's submissions were contradictory and unresolved.
- The Court of Criminal Appeal confirmed that an applicant may be permitted to resile from a concession made at first instance where that concession was contradicted by further submissions and the record was left in a state of confusion.
- Establishing sentencing error does not automatically lead to a lesser sentence. A fresh exercise of sentencing discretion may still produce the same result if the original sentence falls within the proper range when all legitimate factors are considered.
- In dismissing the appeal, the Court reinforced that the Crown has a responsibility to draw its own errors to the attention of a sentencing judge before sentence is imposed, not after.
- All three judges noted, by way of general observation, that practitioners on both sides must ensure that sentence proceedings are conducted in a manner that does not mislead or confuse the sentencing court.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 61M(2), 110
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Haines v R [2021] NSWCCA 149
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Macallister (a pseudonym) v R [2020] NSWCCA 306
- MLP v R [2014] NSWCCA 183
- Rajendran v R [2014] NSWCCA 113
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460