McGovern aka Lanesbury v R [2021] NSWCCA 176

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McGovern aka Lanesbury v R [2021] NSWCCA 176 Hearing dates: 5 July 2021 Date of orders: 4 August 2021 Decision date: 04 August 2021 Before: Bell P at [1] Rothman J at [2] Bellew J at [5] Decision: 1. Leave to appeal against sentence is granted. 2. The appeal dismissed. Catchwords: CRIMINAL LAW – Offences – Application for leave to appeal against sentence – Where applicant pleaded guilty to various offences including four counts of indecent assault – Where the Crown provided a sentence summary to the sentencing judge asserting that the offending was aggravated by the fact that the applicant was subject to conditional liberty at the time – Where a concession to that effect was made by counsel for the applicant – Where that concession was contradicted by a further submission made by counsel for the applicant – Where the resulting confusion was left unresolved – Where Crown determined prior to sentence being passed that its position on sentence was an error but failed to draw that to the attention of the sentencing judge until after sentence had been passed – Where sentencing judge found that the offending was aggravated based upon the Crown's submissions – Whether applicant should be permitted to resile from the concession made at first instance – Whether miscarriage of justice established – Error established – No lesser sentence warranted – Observations as to the necessity for practitioners to ensure that sentence proceedings are properly conducted and not in a manner which has the capacity to lead a sentencing judge into error Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Haines v R [2021] NSWCCA 149 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Macallister (a pseudonym) v R [2020] NSWCCA 306 MLP v R [2014] NSWCCA 183 Rajendran v R [2014] NSWCCA 113 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: Jason McGovern also known as Jason Lanesbury – Applicant Regina – Respondent Representation: Counsel: S Goodwin – Applicant J Paingakulam – Respondent