McGovern aka Lanesbury v R - [2021] NSWCCA 176

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: McGovern aka Lanesbury v R [2021] NSWCCA 176
Hearing dates: 5 July 2021
Date of orders: 4 August 2021
Decision date: 04 August 2021
Before: Bell P at [1]
Rothman J at [2]
Bellew J at [5]
Decision:
1. Leave to appeal against sentence is granted.
2. The appeal dismissed.

Catchwords:
CRIMINAL LAW – Offences – Application for leave to appeal against sentence – Where applicant pleaded guilty to various offences including four counts of indecent assault – Where the Crown provided a sentence summary to the sentencing judge asserting that the offending was aggravated by the fact that the applicant was subject to conditional liberty at the time – Where a concession to that effect was made by counsel for the applicant – Where that concession was contradicted by a further submission made by counsel for the applicant – Where the resulting confusion was left unresolved – Where Crown determined prior to sentence being passed that its position on sentence was an error but failed to draw that to the attention of the sentencing judge until after sentence had been passed – Where sentencing judge found that the offending was aggravated based upon the Crown’s submissions – Whether applicant should be permitted to resile from the concession made at first instance – Whether miscarriage of justice established – Error established – No lesser sentence warranted – Observations as to the necessity for practitioners to ensure that sentence proceedings are properly conducted and not in a manner which has the capacity to lead a sentencing judge into error

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
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

Category: Principal judgment
Parties: Jason McGovern also known as Jason Lanesbury – Applicant
Regina – Respondent
Representation:
Counsel:
S Goodwin – Applicant
J Paingakulam – Respondent
Solicitors:
Voros Lawyers – Applicant
Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2018/262755; 2019/75611
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

21 August 2020

Before:

Her Honour Judge Wass SC

File Number(s):

2018/262755; 2019/75611

Judgment

BELL P: I have had the benefit of reading the judgment of Bellew J. For the reasons his Honour gives, leave to appeal must be granted. On the question of resentencing, my reasons accord with those of Bellew J for imposing no lesser sentence than was originally imposed.
ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Bellew J. I agree that…

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

Case: [2021] NSWCCA 176
Decision Date: 04 August 2021

CaseChat Overview and Summary

McGovern, also known as Lanesbury, brought an application for leave to appeal against his sentence to the High Court of Australia. The applicant had pleaded guilty to various offences, including four counts of indecent assault. The Crown had provided a sentence summary to the sentencing judge, asserting that the offending was aggravated by the fact that the applicant was subject to conditional liberty at the time. Counsel for the applicant initially conceded this point but later contradicted this concession. This contradiction led to confusion, which was not resolved. The Crown subsequently determined that its position on the sentence was in error but did not bring this to the sentencing judge's attention until after the sentence had been passed. The sentencing judge found that the offending was aggravated based on the Crown’s submissions. The applicant sought to be permitted to withdraw from the concession made at first instance, arguing that a miscarriage of justice had occurred.

The court was required to decide whether the applicant should be allowed to resile from the concession made at first instance, whether a miscarriage of justice had occurred, and if an error had been established. The court also needed to determine if a lesser sentence was warranted. The court found that the applicant should not be permitted to withdraw from the concession made at first instance. The court held that no miscarriage of justice had been established, and that while an error had been identified, it did not warrant a lesser sentence. The court emphasised the necessity for practitioners to ensure that sentence proceedings are properly conducted and not in a manner that has the capacity to lead a sentencing judge into error.

The court ultimately dismissed the application for leave to appeal against sentence. The court observed that the applicant's concession, though later contradicted, had been accepted by the sentencing judge, and that this concession had contributed to the sentence. The court held that the error made by the Crown did not warrant a lesser sentence and that the applicant's attempt to withdraw from the concession made at first instance should not be permitted. The court's decision underscored the importance of clear and consistent submissions during sentencing proceedings to prevent confusion and potential miscarriages of justice.

Orders