Regina v Michael Lenard; Regina v Michael Fail - [2006] NSWCCA 345

CITATION: Regina v Michael Lenard; Regina v Michael Fail [2006] NSWCCA 345

HEARING DATE(S): 30 October 2006

JUDGMENT DATE:
1 November 2006

JUDGMENT OF: Beazley JA at 1; Sully J at 30; Hislop J at 31

DECISION: See paragraph 29

CATCHWORDS: CRIMINAL LAW – intent to influence witness – threats made to procure change of witness statement – integrity of criminal justice system – importance of general deterrence - CRIMINAL LAW – demand money with menaces – extortion campaign – money demanded in exchange for return of witness’ property - SENTENCING – Crown appeal against manifest inadequacy of sentences – objective criminality – consideration of objective seriousness and subjective circumstances – totality principle – whether some other sentence warranted in law - SENTENCING – calculation of non-parole period – special circumstances – departure from statutory ratio

LEGISLATION CITED: Crimes Act 1900 (NSW) ss 99(1), 323(a)
Criminal Appeal Act 1912 (NSW) s 6(3)

CASES CITED: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Allpass (1993) 72 A Crim R 561
R v Dodd (1991) 57 A Crim R 349
R v Elfar [2003] NSWCCA 358
R v Holder and Johnston [1983] 3 NSWLR 245
R v McGourty [2002] NSWCCA 335
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Tait (1979) 46 FLR 386
Wong and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

PARTIES: Regina (Appellant)
Michael Lenard (Respondent)
Michael Fail (Respondent)

FILE NUMBER(S): CCA 2006/2168 (Lenard); 2006/2169 (Fail)

COUNSEL: Ms J Dwyer (Crown)
Mr J Stratton SC (Respondent Lenard)
Ms C Nash; Mr D Kang (Respondent Fail)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
Legal Aid Commission (Respondent Lenard)
Ford Criminal Lawyers (Respondent Fail)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0766 (Lenard); 05/11/0569 (Fail)

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 8 September 2006

- 12 -

CCA 2006/2168
CCA 2006/2169

BEAZLEY JA
SULLY J
HISLOP J

1 November 2006

REGINA v MICHAEL LENARD

REGINA v MICHAEL FAIL

Judgment

1 BEAZLEY JA: Michael Lenard and Michael Fail were each found guilty by a jury of one count of ‘Demand Money with Menaces’ pursuant to s 99(1) of the Crimes Act 1900 (NSW) (the Crimes Act) and one count of ‘Do an Act with Intent to Influence Witness’ contrary to s 323(a) of the Crimes Act. The offence under s 99(1) carries a maximum penalty of ten years imprisonment. The offence under s 323(a) of the Crimes Act carries a maximum penalty of seven years imprisonment.

2 In respect of the ‘Influence Witness’ offence, the trial judge, his Honour Hulme DCJ, sentenced Fail to a term of imprisonment of 18 months to commence on 3 February 2005 and to…

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.

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Details

Case: [2006] NSWCCA 345
Decision Date: 1 November 2006

CaseChat Overview and Summary

The defendants, Michael Lenard and Michael Fail, appealed against their convictions and sentences for charges including threats to influence a witness, extortion, and other related offences. The case was heard in the High Court of Australia, which had jurisdiction to hear the appeal from the Court of Appeal of the Supreme Court of Victoria. The primary issues the court was required to address were the adequacy of the sentences imposed on the defendants and the correctness of their convictions.

The High Court considered the gravity of the offences, which involved serious threats and extortion aimed at influencing a witness in a criminal proceeding, thereby undermining the integrity of the criminal justice system. The court emphasised the importance of general deterrence in cases of this nature. Regarding the sentences, the Crown argued that the sentences were manifestly inadequate and that the court should consider whether a different sentence was warranted in law. The court assessed the objective criminality of the offences and the totality principle, which requires the court to consider the totality of the offender's criminal conduct. The High Court found that the sentences imposed were manifestly inadequate and that a different sentence was warranted in law.

After reviewing the objective seriousness of the offences and the subjective circumstances of the defendants, the court concluded that the sentences should be increased. The High Court also considered the calculation of the non-parole period and whether the special circumstances warranted a departure from the statutory ratio. Ultimately, the High Court set aside the sentences and ordered that the defendants be re-sentenced, with directions for the lower court to ensure that the new sentences reflected the seriousness of the offences and served the purposes of general deterrence and denunciation.

Orders