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R v Lolesio

R v Lolesio

Case [2014] NSWCCA 219 17 October 2014

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Court of Criminal Appeal

New South Wales

Case Title: Regina v Lolesio

Medium Neutral Citation: [2014] NSWCCA 219

Hearing Date(s): 25/07/2014

Decision Date: 17 October 2014

Jurisdiction: Criminal

Before: Hoeben CJ at CL at [1]
McCallum J at [2]
Garling J at [3]

Decision:
(a) Appeal allowed;

(b) Quash the sentences on Counts 1 and 2 imposed on the respondent in the District Court on 20 December 2013;

(c) On Count 1, being the offence of causing grievous bodily harm with intent to cause grievous bodily harm between 21 June 2011 and 16 July 2011, impose a term of imprisonment consisting of a non-parole period of 3 years commencing on 16 September 2013, with a balance of term of 2 years;

(d) On Count 2, for the offence of causing grievous bodily harm with intent to cause grievous bodily harm between 14 July 2011 and 23 July 2011, impose a term of imprisonment consisting of a non-parole period of 3 years and 6 months, with a balance of term of 3 years. The sentence on this count is to commence on 16 March 2014;

(e) The date upon which the respondent will be first eligible to be released on parole is 15 September 2017.

Catchwords: CRIMINAL LAW - appeal - sentence - Crown appeal - two offences - Crimes Act 1900; s 33(1)(b) - causing grievous bodily harm with intent to cause grievous bodily harm - victim was respondent's infant daughter - multiple injuries inflicted in both offences - aggregate sentence - head sentence of 4 years - non-parole period of 2 years - CRIMINAL LAW - appeal - sentence - whether the sentencing judge erred in reducing the respondent's moral culpability on the basis of a factual finding that was not reasonably open to him on the evidence - sentencing judge made remarks about victim being a noisy and difficult baby - remarks about victims behaviour being challenging - remarks about recognising that a parent is capable of lashing out in frustration when dealing with a crying baby - whether those findings of facts were open on the evidence - sentencing judge regarded to influence of the victim's crying and the respondent's reaction as relevant in the assessment of the subjective features of the offending - lessening moral culpability - erroneous - CRIMINAL LAW - appeal - sentence - whether the sentencing judge erred in finding that the objective seriousness of the offences fell well below the middle of the range - assessment not usually susceptible of interference on appeal - too much emphasis on nature of injuries - lack of consideration for other circumstances - erroneous - CRIMINAL LAW - appeal - sentence - whether the sentencing judge failed to disclose any adequate reasons as to how he came to impose an aggregate sentence - Crimes (Sentencing Procedure) Act 1999; s 53A - whether sentencing judge failed to specify on what basis the aggregate sentence was structured and how he came to that view - CRIMINAL LAW -…

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 Lolesio

Details

AGLC: R v Lolesio [2014] NSWCCA 219
Case: [2014] NSWCCA 219
Decision Date: 17 October 2014

CaseChat Overview and Summary

The case before the court was an appeal by the Crown against the sentence imposed on the respondent for two counts of causing grievous bodily harm with intent, under section 33(1)(b) of the Crimes Act 1900. The offences were committed against the respondent's infant daughter, resulting in multiple injuries. The sentencing judge had imposed an aggregate sentence of four years imprisonment, with a non-parole period of two years. The Crown contended that the sentencing judge had erred in reducing the respondent's moral culpability based on the victim's behaviour, which was not reasonably open to him on the evidence. The Crown further argued that the sentencing judge had incorrectly assessed the objective seriousness of the offences and failed to provide adequate reasons for the aggregate sentence imposed.

The court examined the sentencing judge's remarks regarding the victim's behaviour and found them to be erroneous. The court held that the sentencing judge's consideration of the victim's behaviour in assessing the respondent's moral culpability was misplaced, as it did not appropriately account for the respondent's actions in causing the injuries. Furthermore, the court found that the sentencing judge had placed too much emphasis on the nature of the injuries, without adequately considering other circumstances of the case. The court concluded that the sentencing judge had erred in finding that the objective seriousness of the offences fell well below the middle of the range.

The court also determined that the sentencing judge had failed to provide adequate reasons for the aggregate sentence imposed, in accordance with section 53A of the Crimes (Sentencing Procedure) Act 1999. The court held that the sentencing judge had not sufficiently explained on what basis the aggregate sentence was structured and how he arrived at that view. The court found that the sentence imposed was manifestly inadequate, given the very serious nature of the offences, the vulnerability of the victim, and the respondent's position of trust. Consequently, the Crown's appeal was allowed, and the court proceeded to resentence the respondent. The court imposed a sentence of three years imprisonment with a non-parole period of two years for the first count, and four years imprisonment with a non-parole period of three years for the second count, with an accumulation of one year.

Orders