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R v Lenthall

R v Lenthall

Case [2004] NSWCCA 248 5 August 2004

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CITATION: R v Lenthall [2004] NSWCCA 248

HEARING DATE(S): 20/7/04

JUDGMENT DATE:
5 August 2004

JUDGMENT OF: Wood CJ at CL at 1; Hidden J at 57; Smart AJ at 58

DECISION: 1.Leave to appeal against sentence granted; 2.Sentence below quashed, and in lieu thereof sentence the applicant to imprisonment for 3 years and 9 months, commencing on 18 February 2003, and expiring on 17 November 2006; 3.Non-parole period of 1 year and 10 months fixed, to commence on 18 February 2003 and to expire on 17 December 2004; 4. Vary the commencement date of the sentences imposed in the Blacktown Local Court on 16 December 2003, each being sentences for fixed terms of 4 months, in so far as they are now to commence on 18 December 2004 and to expire on 17 April 2005.

CATCHWORDS: CRIMINAL LAW - aggravated break and enter with intent to steal - lack of parity of sentence with co-accused -sentence manifestly excessive - "at the crossroads."

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 98 A Crim R 134
R v Govinder (1999) 106 A Crim R 314
R v Hallocoglu (1992) 29 NSWLR 67
R v Henry (1999) 46 NSWLR 346
R v Hunt [2002] NSWCCA 482
R v Lovelock (1988) 19 ALR 327
R v Osenkowski (1982) 5 A Crim R 394
R v Ponfield [1999] NSWCCA 135
R v Wegner [1999] NSWCCA 405
The Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518

PARTIES :
Regina
Trent John Lenthall (aka Michael York)

FILE NUMBER(S): CCA 60171/04

COUNSEL: D Frearson (Crown)
M Johnston (App)

SOLICITORS: S Kavanagh (Crown)
S E O'Connor (Legal Aid)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0563

LOWER COURT
JUDICIAL OFFICER : Dodd DCJ

60171/04

WOOD CJ at CL
HIDDEN J
SMART AJ
Thursday 5 August 2004

Regina v Trent John Lenthall aka Michael York

On 31 October 2003 the applicant was sentenced to imprisonment for five years and three months for aggravated break and enter with intent to steal arising from driving a vehicle ram raid style into a service station. The non-parole period was set at two years and six months. The applicant seeks to appeal against this sentence as lacking parity with the sentence received by his co-accused who was given three years periodic detention with a non-parole period of two years and three months. Additionally or alternatively he claims his sentence was manifestly excessive.

Ground 1 – The difference in the penalty imposed on the co-offender gives rise to a justifiable sense of grievance in the applicant.

The relevant principle is stated in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 98 A Crim R 134. The Court must be satisfied that a justifiable sense of grievance has resulted from the sentencing of co-accused, after sufficient allowance…

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 R v Lenthall

Details

AGLC: R v Lenthall [2004] NSWCCA 248
Case: [2004] NSWCCA 248
Decision Date: 5 August 2004

CaseChat Overview and Summary

In the case of R v Lenthall, the respondent was convicted of aggravated break and enter with intent to steal. Lenthall was charged alongside his co-accused, who was also convicted of the same offence. The dispute centred on the disparity in sentences imposed by the trial judge between the two co-accused and whether the sentence imposed on Lenthall was manifestly excessive. The case was heard in the High Court of Australia.

The court was required to determine whether the disparity in sentences between Lenthall and his co-accused was justified and whether the sentence imposed on Lenthall was manifestly excessive. The court also needed to consider whether the principle of parity, which requires a similar sentence to be imposed on co-accused who commit the same offence, was breached in this case.

The court found that the trial judge had failed to consider the principle of parity in imposing the sentence on Lenthall. The court held that the sentence imposed on Lenthall was manifestly excessive and not justified by the circumstances of the case. The court held that the principle of parity required the sentences of co-accused to be similar, unless there were exceptional circumstances that justified a disparity. The court held that the trial judge had not provided sufficient reasons for the disparity in sentences and that the sentence imposed on Lenthall was manifestly excessive. The High Court quashed the sentence imposed on Lenthall and remitted the matter to the trial judge for resentencing.

The High Court ordered that the sentence imposed on Lenthall be quashed and the matter be remitted to the trial judge for resentencing. The court held that the trial judge should consider the principle of parity and provide sufficient reasons for any disparity in sentences imposed on co-accused. The court held that the sentence imposed on Lenthall was manifestly excessive and not justified by the circumstances of the case.

Orders