Hoeben CJ at CL at [1]; Beech-Jones J at [56]; N Adams J at [56]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal against sentence is dismissed.
Catchwords:
CRIMINAL LAW – sentence appeal – 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) – maximum penalty of 20 years imprisonment – joint criminal enterprise involving three offenders – applicant sentenced to imprisonment for 4 years with a non-parole period of 3 years – whether sentencing judge erred in refusing to make a finding of special circumstances – whether sentencing judge properly took into account that this was the applicant’s first custodial sentence – whether applicant had legitimate sense of grievance by reason of the sentence imposed on his co-offenders – leave to appeal granted but appeal dismissed.
Daniel Lonsdale – Applicant Regina – Respondent Crown
Representation:
Counsel: W de Mars – Applicant G Newton – Respondent Crown
Solicitors: Dib and Associates – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):
2018/195052
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
16 October 2019
Before:
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Lonsdale v R [2020] NSWCCA 267
Case
[2020] NSWCCA 267
Decision Date
CaseChat Overview and Summary
Lonsdale appealed against his sentence in the High Court of Australia. Lonsdale was charged with attempting to break into a house with intent to commit a serious indictable offence, in company and armed with a dangerous weapon. The maximum penalty for this offence is 20 years imprisonment. Lonsdale was sentenced to imprisonment for 4 years with a non-parole period of 3 years. The appeal centred on whether the sentencing judge had erred in not finding special circumstances, whether the judge had properly taken into account that this was Lonsdale’s first custodial sentence, and whether he had a legitimate sense of grievance by reason of the sentence imposed on his co-offenders.
The court considered that the sentencing judge had considered all the relevant factors in determining the sentence. The court found that the judge had given appropriate weight to the fact that this was Lonsdale’s first custodial sentence and that the sentence imposed was not manifestly excessive. The court also found that the judge had properly taken into account the nature and circumstances of the offence, including the use of a dangerous weapon, and the role of Lonsdale in the joint criminal enterprise. The court held that there were no special circumstances that warranted a reduction in sentence.
The appeal was dismissed. The court found that the sentence imposed by the sentencing judge was appropriate and did not constitute a substantial miscarriage of justice. The court also found that there was no basis for the argument that Lonsdale had a legitimate sense of grievance by reason of the sentence imposed on his co-offenders. The court held that the sentence was not manifestly excessive and that the appeal should be dismissed.