McGovern aka Lanesbury v R

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.