R v Lomax - [2009] NSWCCA 53

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Lomax [2009] NSWCCA 53

FILE NUMBER(S):
2007/15890

HEARING DATE(S):
23 February 2009

JUDGMENT DATE:
9 March 2009

PARTIES:
REGINA - Appellant
Peter Gregory LOMAX - Respondent

JUDGMENT OF:
Grove J Buddin J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0521

LOWER COURT JUDICIAL OFFICER:
Charteris DCJ

LOWER COURT DATE OF DECISION:
25 January 2008

COUNSEL:
N Noman - Appellant
R Burgess - Respondent

SOLICITORS:
Solicitor for Public Prosecutions - Appellant
Legal Aid Commission - Respondent

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sentence
"Discount" obtained for undertaking to give evidence against co-offender
Offender reneges
Miscarriage of sentence viewed in hindsight
"Discount" should be removed
Crown appeal allowed

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
R v Ellis (1986) 6 NSWLR 603
R v El-Sayed (2003) 57 NSWLR 659
R v Lenati [2008] NSWCCA 67
SZ v The Queen [2007] 168 A Crim R 249

TEXTS CITED:

DECISION:
Crown appeal allowed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/15890
GROVE J
BUDDIN J
PRICE J
9 March 2009

R v Peter Gregory LOMAX

Judgment

GROVE J: This is a Crown appeal brought pursuant to s 5DA of the Criminal Appeal Act 1912. That provision concerns the adjustment or correction of sentence when a person has failed to be forthcoming with promised assistance to prosecution authorities after receiving a reduction in sentence for a promise so to do. Such a reduction has statutory authority in s 23 of the Crimes (Sentencing Procedure) Act 1999. The purpose of s 5DA is to correct, with the benefit of hindsight, what can be seen to have been a miscarriage in the sentencing process. It is not punitive: R v El-Sayed (2003) 57 NSWLR 659. Section 5DA (2) provides that the Court may impose such sentence as it thinks fit.
The respondent pleaded guilty in the Local Court to an offence of soliciting to murder. This offence carries a maximum penalty of imprisonment for 25 years with a prescribed non-parole period of 10 years. On committal for sentence by Charteris DCJ in the Sydney District Court, his Honour was asked to take into account on sentence pursuant to the Form 1 procedure an offence of being an accessory before the fact to malicious damage of property by fire. That offence has a maximum prescribed penalty of 10 years imprisonment. The respondent was sentenced to imprisonment consisting of a non-parole period of 3 years 6 months commencing on 26 March 2007 and expiring on 25 September 2010 with a balance term of 2 years 3 months.
In a written submission on behalf of the respondent it was stated that the respondent accepted the background, facts and undertaking as set out in written submissions by the Crown. It will suffice to refer to these in summary as it was further stated on behalf of the respondent, “It is conceded that on 11 June 2008…

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 Lomax

Details

AGLC: R v Lomax [2009] NSWCCA 53
Case: [2009] NSWCCA 53
Decision Date: 9 March 2009

CaseChat Overview and Summary

The case of R v Lomax involved a defendant who had been given a reduced sentence in exchange for agreeing to testify against a co-offender. When the defendant reneged on his agreement and did not testify, the prosecution appealed the sentence, arguing that the discount should be removed due to the defendant's breach of the agreement. The legal issues before the court revolved around the appropriate response to a defendant who, having benefited from a negotiated sentence, then failed to honour their part of the bargain.

The court examined the principles underpinning the practice of offering sentence discounts for defendants who agree to testify against co-offenders. It held that such discounts are conditional upon the defendant fulfilling their part of the agreement. When a defendant does not comply, the original sentence should be reconsidered and, if appropriate, adjusted to reflect the breach of the agreement. The court emphasised that the integrity of the judicial process and the fairness of the sentence are paramount, and that any discount must be contingent upon the defendant's cooperation.

In light of the defendant's failure to testify as agreed, the court determined that the discount granted should be removed. The court concluded that the original sentence, without the discount, was the appropriate punishment for the defendant's criminal conduct. Consequently, the appeal was allowed, and the matter was remitted to the lower court for the imposition of the correct sentence. The decision underscores the importance of the defendant's compliance with the terms of a negotiated sentence and the court's role in ensuring that justice is fairly administered.

Orders