Regina v Lorenzo - [2001] NSWCCA 389

CITATION: REGINA v LORENZO [2001] NSWCCA 389

FILE NUMBER(S): CCA 60960/93

HEARING DATE(S): 27/09/01

JUDGMENT DATE:
27 September 2001

PARTIES :

Regina
Christopher Anthony LORENZO

JUDGMENT OF: Powell JA at 1; Sully J at 32; Bell J at 2

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 93/91/0005

LOWER COURT JUDICIAL
OFFICER : Dunford J

COUNSEL : W. Dawe QC (Crown)
P. Neil SC (Appellant)

SOLICITORS: SE O'Connor (Crown)
William S Whitby, Solicitor (Appellant)

LEGISLATION CITED: Sentencing Act 1989

CASES CITED:
Goodwin v R (1990) 51 A Crim R 328
Many v R (1990) 51 ACrimR 54
Munday v R (1990) 51 ACrimR 54
Postiglione v The Queen (1997) 189 CLR

DECISION: Application for leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60960/93

POWELL JA

SULLY J

BELL J

THURSDAY 27 September 2001

REGINA v Christopher Anthony LORENZO

Judgment

I will ask Bell J to deliver the first judgment.

This is an application for leave to appeal against the severity of a sentence imposed on 26 October 1993 upon the applicant following his conviction for murder after a trial before Dunford J and a jury.

3 On 26 November 1993 Dunford J sentenced the applicant to a term of seventeen years penal servitude to date from 5 October 1996 and to expire on 4 October 2013. An additional term of five and half years was specified. That term will expire on 4 April 2019. At the time the applicant stood for sentence he was serving the balance of a sentence imposed on him in the Sydney District Court in March 1984 for the offence of armed robbery.

4 The matter has a somewhat unusual history. The applicant filed a notice of appeal signifying his intention to appeal to this Court against both his conviction and the severity of his sentence on 3 December 1993. His appeal came before this court constituted by Gleeson CJ and Mahoney JA and Sperling J on 7 April 1995. Judgment was delivered on 22 May 1995 dismissing the applicant's appeal against conviction. Reference was made to the appeal against sentence in the published reasons of the court.

5 Counsel appearing for the applicant after the judgment was published observed:

"In relation to the sentence, by agreement the sentence appeal was stood over to be returned to the Registrar's call-over because there were certain matters that made it impossible to argue that appeal."

6 The Chief Justice noted that there was to be a further hearing in relation to the sentence appeal and, in the light of that, stated that an order in relation to the dismissal of the appeal against sentence would be withheld.

7 The proceedings were stood over for hearing to 25 June 1996. On that date the Court was constituted by the Chief Justice, Studdert and Dunford JJ. The applicant was given leave to file in Court an affidavit sworn on 25 June 1996. The appeal against sentence was stood out of the list to a…

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 Lorenzo

Details

AGLC: Regina v Lorenzo [2001] NSWCCA 389
Case: [2001] NSWCCA 389
Decision Date: 27 September 2001

CaseChat Overview and Summary

In Regina v Lorenzo, the appellant, Christopher Anthony Lorenzo, sought leave to appeal against the severity of the sentence imposed by Dunford J in the Supreme Court of New South Wales. The appeal centred on the sentence of seventeen years imposed for the murder of Mrs Andree Marguerite Edwards, which was to commence upon the expiration of the sentence being served for armed robbery. Counsel for the appellant argued that the sentencing judge erred in failing to adequately consider the principle of totality and in not considering special circumstances warranting a departure from the statutory proportion. The Court of Criminal Appeal was required to determine whether the sentencing judge's approach was erroneous and whether fresh evidence could be received in light of subsequent events.

The Court of Criminal Appeal held that the appellant had not demonstrated any error in principle by the sentencing judge. Regarding the principle of totality, the Court found that the sentencing judge had appropriately considered the total criminality involved, including the armed robbery sentence, in determining the appropriate sentence for the murder. As for special circumstances, the Court noted that the sentencing judge had taken into account the appellant's custodial situation and the need for him to serve his sentence in protection. The Court concluded that the sentencing judge's approach was correct and that no error had been made.

Furthermore, the Court of Criminal Appeal rejected the appellant's submission that fresh evidence should be received. The Court held that the additional material sought to be introduced did not meet the criteria established in Goodwin v R for the reception of fresh evidence. The Court also noted that the review of a sentence in light of subsequent events is a matter for the executive government, not the Court of Criminal Appeal.

Accordingly, the application for leave to appeal was granted, but the appeal was dismissed. The Court ordered that the sentence imposed by the Supreme Court be upheld.

Orders