Regina v LOLESI - [2002] NSWCCA 189

CITATION: REGINA v. LOLESI [2002] NSWCCA 189

FILE NUMBER(S): CCA No. 60684 of 2001

HEARING DATE(S): Tuesday 21 May 2002

JUDGMENT DATE:
21 May 2002

PARTIES :

REGINA v.
LOLESI, Shontel

JUDGMENT OF: Greg James J at 1; Smart AJ at 33

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/3144

LOWER COURT JUDICIAL
OFFICER : Coleman, DCJ.

COUNSEL : Crown: G.I.O. Rowling
App: P.M. Winch

SOLICITORS: Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS: Criminal law - sentence - appeal - disparity - different regimes - applicant adult - co-offender child - open to court to intervene - circumstances favouring applicant - appeal should be upheld and new sentences passed requiring a parole release order, but parole to be supervised.

LEGISLATION CITED: Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Crime (Sentencing Procedure) Regulation 2000

CASES CITED:
Diamond (CCA, unreported 18 February 1993)
Steele (CCA, unreported 17 April 1997)
GDP (1991) 54 A. Crim. R. 112
Govinden (1999) 106 A. Crim R. 316
Boney [2001] NSWCCA 432
Coglan [1999] NSWCCA 292

DECISION: Appeal allowed; sentence below quashed; in lieu thereof, on counts one and three, there should be imposed a fixed term of 18 months to commence 3 April 2001 and to expire 2 October 2002. On count four, there should be imposed a sentence of two years and nine months imprisonment commencing 3 April 2002 and expiring 2 January 2004. That sentence will be wholly concurrent with the sentences imposed on counts one and three. On that sentence there should be a non-parole order in respect of a non-parole period of 18 months expiring on 2 October 2002. The sentences of nine months for a fixed term should remain on the remaining counts.

No. 60684 of 2001

GREG JAMES, J.
SMART, AJ.
TUESDAY 21 MAY 2002

REGINA v. SHONTEL LOLESI

Judgment

1 GREG JAMES, J: This is an application for leave to appeal in respect of the sentences imposed upon the applicant in the District Court of New South Wales at Campbelltown for a number of offences which were placed on an indictment in consequence of there being some difficulty with the papers, the offender having indicated a plea of guilty before the magistrate and pleading guilty to the offences arraigned.

2 The offences comprised count one, robbery armed with an offensive weapon on 27 March 2001; count two, steal a motor vehicle on 28 March 2001; count three, another count of robbery armed with an offensive weapon committed on 29 March 2001; count four, another robbery armed with an offensive weapon committed on 30 March 2001; count five, steal a motor vehicle committed on 27 March 2001.

3 The crimes of robbery armed with an offensive weapon under s.97(6) of the Crimes Act 1900 punishable by a maximum penalty of 20 years imprisonment. Those of steal a motor vehicle are, pursuant to s.154A(1)(a) of the Crimes Act 1900 punishable by a maximum penalty of five years imprisonment.

4 The applicant had been arrested on 3 April…

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 Regina v LOLESI

Details

AGLC: Regina v LOLESI [2002] NSWCCA 189
Case: [2002] NSWCCA 189
Decision Date: 21 May 2002

CaseChat Overview and Summary

In Regina v Lolesi, the applicant, an adult offender, sought an appeal against his sentence following a conviction for offences committed in conjunction with a juvenile co-offender. The applicant's appeal was based on the argument that his sentence was excessively harsh in comparison to that of his co-offender, who was treated under a different legislative regime due to their age. The High Court of Australia was tasked with determining whether the disparity in sentencing warranted judicial intervention and whether the applicant's appeal should be upheld.

The central legal issue before the court was whether the significant difference in sentences between the applicant and his co-offender warranted an appeal, given that the co-offender was subject to a separate legislative regime due to their age. The court had to consider whether it was appropriate to intervene in the sentencing process in such circumstances, particularly when the applicant had expressed remorse and demonstrated a willingness to rehabilitate. Additionally, the court had to balance the principle of proportionality in sentencing with the need to ensure that the sentences reflect the gravity of the offences committed.

The court held that it was indeed within its jurisdiction to intervene in the sentencing process when the circumstances warranted such action, particularly where there was a significant disparity in sentences between co-offenders who were subject to different legislative regimes. The court recognised that the applicant's remorse, expressed through his actions and statements, and the potential for rehabilitation were factors that favoured his appeal. Consequently, the court upheld the appeal and ordered that new sentences be passed, which would require a parole release order. However, the court emphasised that the parole should be subject to supervision to ensure public safety and the successful rehabilitation of the applicant.

The final orders of the court included the substitution of the original sentences with new sentences that would mandate a parole release order, subject to supervision. The court's decision underscored the importance of proportionality in sentencing and the role of the judiciary in ensuring that justice is served, even in cases involving significant disparities between co-offenders. The court's intervention in this case highlights the importance of considering individual circumstances and the potential for rehabilitation when determining appropriate sentences.

Orders