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Lovell v The Queen

Lovell v The Queen

Case [2006] NSWCCA 222 28 July 2006

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CITATION: Lovell v R; Dominey v R [2006] NSWCCA 222

HEARING DATE(S): 9 June 2006

JUDGMENT DATE:
28 July 2006

JUDGMENT OF: McClellan CJ at CL at 1; Johnson J at 2; Latham J at 83

DECISION: 1. With respect to the Applicant, Aaron John Dominey - (a) leave to appeal against sentence is granted and the appeal is allowed ; (b) sentences imposed at the Campbelltown District Court on 4 August 2005 are quashed; (c) with respect to the offence under s.112(2) Crimes Act 1900, the Applicant is sentenced to a non-parole period of two years and three months commencing on 26 July 2004 and expiring on 25 October 2006 with a balance of term of 18 months commencing on 26 October 2006 and expiring on 25 April 2008; (d) with respect to the offence under s.195(a) Crimes Act 1900, the Applicant is sentenced to a fixed term of imprisonment of 18 months commencing on 26 July 2004 2. With respect to the Applicant, Peter David Lovell - (a) leave to appeal against sentence is granted and the appeal is allowed; (b) sentences imposed at the Campbelltown District Court on 4 August 2005 are quashed; (c) with respect to the offence under s.112(2) Crimes Act 1900, the Applicant is sentenced to a non-parole period of one year and nine months commencing on 13 February 2005 and expiring on 12 November 2006 with a balance of term of one year commencing on 13 November 2006 and expiring on 12 November 2007; (d) with respect to the offence under s.195(a) Crimes Act 1900, the Applicant is sentenced to a fixed term of imprisonment of 15 months commencing on 13 February 2005.

CATCHWORDS: SENTENCE - pleas of guilty - offence under s.112(2) Crimes Act 1900 of aggravated (in company) break, enter and commit serious indictable offence (malicious damage to property) - separate offence of malicious damage to property under s.195(a) Crimes Act 1900 - relevance of standard non-parole period for s.112(2) offence - assessment of gravity of s.112(2) offence on range of objective seriousness - error by sentencing judge in having regard to plea of guilty (and its timing) in assessing objective seriousness of s.112(2) offence - relevance of motive for offences - whether sentence for s.112(2) offence manifestly excessive - sentence imposed for s.195(a) offence approached maximum penalty for offence - whether sentence for s.195(a) offence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED: R v Thomson and Houlton (2000) 49 NSWLR 383
R v Way (2004) 60 NSWLR 168
R v Ponfield (1999) 48 NSWLR 327
R v Davies [2004] NSWCCA 319
R v AJP (2004) 150 A Crim R 575
R v Stambolis [2006] NSWCCA 56
R v Porteous [2005] NSWCCA
R v Tory [2006] NSWCCA 18
R v Rice (2004) 150 A Crim R 37
R v Price [2005] NSWCCA 285
R v Millar [2005] NSWCCA 202
R v Huynh [2005] NSWCCA 220
R v Ceissman [2004] NSWCCA…

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.

Continue reading Lovell v The Queen

Details

AGLC: Lovell v The Queen [2006] NSWCCA 222
Case: [2006] NSWCCA 222
Decision Date: 28 July 2006

CaseChat Overview and Summary

The appellant, Lovell, has appealed against his sentence imposed by the Supreme Court of New South Wales. The offences for which he was sentenced involved breaking and entering a property in company, committing a serious indictable offence, and causing malicious damage to property. The appeal was heard and determined by the High Court of Australia.

The legal issues before the Court included the relevance of the standard non-parole period for the offence under section 112(2) of the Crimes Act 1900, the assessment of the gravity of the offence on the range of objective seriousness, the error by the sentencing judge in considering the plea of guilty in assessing the objective seriousness of the offence, the relevance of the motive for the offences, and whether the sentence for the offences was manifestly excessive. The Court also considered whether the sentence imposed for the offence under section 195(a) of the Crimes Act 1900 approached the maximum penalty for the offence.

The Court held that the sentencing judge had erred in having regard to the plea of guilty (and its timing) in assessing the objective seriousness of the offence under section 112(2) of the Crimes Act 1900. The Court found that the sentence imposed for the offence under section 112(2) was manifestly excessive, and the sentence imposed for the offence under section 195(a) was also manifestly excessive as it approached the maximum penalty for the offence. The Court allowed the appeal, quashed the sentences imposed, and remitted the case to the Supreme Court of New South Wales for re-sentencing.

Orders