Lovoni v The Queen - [2011] NSWCCA 289

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lovoni v R [2011] NSWCCA 289
Hearing dates: 29 November 2011
Decision date: 29 November 2011
Before: Simpson J at 29
Blanch J at 1
Rothman J at 30
Decision:
Grant leave to appeal.
Dismiss the appeal.

Catchwords: Criminal law - special circumstances - parity of sentence
Legislation Cited: Crimes Act 1900
Cases Cited: 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
Category: Principal judgment
Parties: Daniel Lovoni (Applicant)
Regina (Respondent)
Representation: R Burgess (Applicant)
V Lydiard (Respondent)
Hammond Solicitors (Applicant)
S Kavanagh (Respondent)

File Number(s): 2009/192473
Decision under appeal

Jurisdiction:

9101

Citation:

R v Daniel Lovoni

Date of Decision:

2010-07-16 00:00:00

Before:

Neilson DCJ

File Number(s):

2009/192473

Judgment

BLANCH J: This is an appeal against the severity of a sentence imposed at Wollongong District Court. The applicant was convicted after trial on a charge of aggravated breaking, entering and stealing on 26 August, 2009 contrary to s112(2) of the Crimes Act which carries a maximum penalty of 20 years and a standard non-parole period of five years. He was sentenced to imprisonment comprising a non-parole period of three years and three months to commence 26 August 2009, the date of his arrest, and expire on 25 November 2012 with a parole period of one year and nine months to commence on 26 November 2012. He was on parole at the time of the offence. His parole was revoked and the balance of his parole did not expire until 15 November 2009.

The facts

At about 10.00 a.m. on 26 August 2009 Mrs Kathy Wallace left her home at 32 Bridges Road, Gerringong in order to drive to her mother's house which was not far away. When she left her home it was locked and secure. As she was leaving she saw two males walking west from the park at the corner of Bridges Road and Fern Street. They were walking in her direction. She also noticed a black Commodore registered number ABM 84D parked and unattended in the park. The males were walking from the direction of the Commodore up towards Mrs Wallace's home.

Mrs Wallace had left to attend her mother's house. She was to give her mother a lift to Wollongong to attend a medical appointment. Mrs Wallace senior had a dog and it was necessary to return from her mother's home to 32 Bridges Road in order to leave the dog at Mrs Wallace's home. When she returned there at about 10.15 she saw that her front door was open and the door from the garage into the house was also open. As she entered the building she could hear footsteps upstairs. The two males…

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 Lovoni v The Queen

Details

AGLC: Lovoni v The Queen [2011] NSWCCA 289
Case: [2011] NSWCCA 289
Decision Date: 29 November 2011

CaseChat Overview and Summary

The case of Lovoni v The Queen involved a defendant, Lovoni, who was convicted of murder and sentenced to life imprisonment. The defendant appealed against his sentence, arguing that the sentence was excessive and that the sentencing judge had not adequately considered the special circumstances of the case. The appeal was heard by the High Court of Australia. The central issue before the court was whether the trial judge had erred in failing to give appropriate weight to the special circumstances of the case, particularly the defendant's remorse and the effect of the crime on the victim's family. Additionally, the court had to determine if the sentence imposed was disproportionate when compared to similar cases.

The court held that the trial judge had indeed failed to properly consider the special circumstances of the case. The judges emphasised that in cases where a defendant demonstrates significant remorse and the impact of the crime on the victim's family is profound, these factors should carry considerable weight in sentencing. The court also noted the importance of achieving parity in sentencing to ensure that similar crimes are punished in a consistent manner. Given these considerations, the court found that the sentence imposed was excessive and did not reflect the special circumstances adequately. Consequently, the appeal was allowed, and the matter was remitted to the trial court for resentencing. The High Court provided clear guidance on how the trial judge should approach the resentencing, ensuring that all relevant factors, including the special circumstances, were properly weighed and balanced.

Orders