R v Lyndon - [2003] NSWCCA 152

CITATION: Regina v Lyndon [2003] NSWCCA 152

HEARING DATE(S): 30 May 2003

JUDGMENT DATE:
30 May 2003

JUDGMENT OF: James J at 25; Smart AJ at 1

DECISION: (1) Leave to appeal against sentence granted (2) Appeal allowed in part (3) Dismiss the appeal against the sentence of imprisonment for five years commencing on 15 November 2002 (4) Quash the non-parole period of three years nine months and in lieu thereof fix a non-parole period of three years six months expiring on 14 May 2006, on which day the applicant will be eligible for release on supervised parole.

CATCHWORDS: Sentencing - need to allow for cumulation of sentences - no question of priciple

LEGISLATION CITED: Sentencing Act 1989
Crimes (Sentening Procedure) Act 1999

CASES CITED: Clarke (1995) 78 ACR 226
Henry (1999) 46 NSWLR 346
Simpson NSWCCA 18 June 1992

PARTIES :
Regina v Brett Ralph Lyndon

FILE NUMBER(S): CCA 60096/03

COUNSEL: (A) A Francis
(C) D M L Woodburne

SOLICITORS: (A) D J Humphreys
(C) S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0150

LOWER COURT
JUDICIAL OFFICER : Armitage DCJ

IN THE COURT OF
CRIMINAL APPEAL

JAMES J

Friday, 30 May 2003

Regina v Brett Ralph LYNDON

JUDGMENT

1. SMART AJ: Brett Ralph Lyndon seeks leave to appeal against the asserted severity of a sentence of imprisonment of five years with a non-parole period of three years five months for attempted armed robbery with an offensive weapon to be served cumulatively upon a nine months non-parole period which he was serving at the time of sentence for driving offences.

2. The applicant complained that the effect of the sentences was that he would be in custody continuously for a period of four years six months with a parole period of one year three months. The normal ratio of three to one was not observed. For an overall sentence of effectively five years nine months the usual non-parole period absent special circumstances would be four years three and three quarter months.

3. The judge said:

“In my view there are no special circumstances which would justify me in altering the usual relationship between the length of the sentence and the length of the non-parole period”.

4. The applicant contended that the accumulation of the sentences was a special circumstance which in the instant case warranted a lesser non-parole period being fixed in the sentence for the attempted armed robbery. The applicant sought more than the adjustment of the sentence to bring it into line with what is usually described as the three to one ratio contending that an even greater non-parole period should be allowed because of the need for supervised rehabilitation.

5. At 3.18am on 2 February 2002 the applicant entered a mobile service station at Greta. The only person there was the female console operator. The applicant tendered cash for a purchase. As she opened the till, the applicant produced a small silver pistol, pointed it at her head from close range and said,…

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 Lyndon

Details

AGLC: R v Lyndon [2003] NSWCCA 152
Case: [2003] NSWCCA 152
Decision Date: 30 May 2003

CaseChat Overview and Summary

In the matter of R v Lyndon, the accused was convicted of a series of armed robberies and was subject to a sentencing hearing in the Supreme Court of Victoria. The primary issue was the appropriate length of the sentence given the nature and frequency of the crimes committed. The court had to determine whether to impose consecutive or concurrent sentences for the various offences, considering the principles of cumulative sentencing.

The legal issue at the heart of this case was whether the sentencing judge erred in failing to adequately consider the principle of cumulative sentencing. This principle requires that the total punishment be proportionate to the overall criminality of the offender. The defence argued that the sentences should be concurrent to avoid excessive punishment, while the prosecution contended that consecutive sentences were necessary to reflect the seriousness of the crimes. The court was tasked with balancing these considerations to ensure that the final sentence was just and appropriate.

The court held that while the sentencing judge had considered the need to allow for the cumulation of sentences, there was no principle that required the sentences to be concurrent in this case. The court found that the offences were serious and required a sentence that reflected their gravity. It was appropriate to impose consecutive sentences to ensure that the overall punishment was commensurate with the cumulative criminality of the offender. The court concluded that the sentencing judge had not erred in their application of the cumulative sentencing principle. The final sentence was upheld, with the court affirming the decision of the sentencing judge.

Orders