Regina v Lolesio [2014] NSWCCA 219

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Regina v Lolesio [2014] NSWCCA 219 Hearing dates: 25/07/2014 Decision date: 17 October 2014 Jurisdiction: Criminal Before: Hoeben CJ at CL at [1] McCallum J at [2] Garling J at [3] Decision: (a) Appeal allowed; (b) Quash the sentences on Counts 1 and 2 imposed on the respondent in the District Court on 20 December 2013; (c) On Count 1, being the offence of causing grievous bodily harm with intent to cause grievous bodily harm between 21 June 2011 and 16 July 2011, impose a term of imprisonment consisting of a non-parole period of 3 years commencing on 16 September 2013, with a balance of term of 2 years; (d) On Count 2, for the offence of causing grievous bodily harm with intent to cause grievous bodily harm between 14 July 2011 and 23 July 2011, impose a term of imprisonment consisting of a non-parole period of 3 years and 6 months, with a balance of term of 3 years. The sentence on this count is to commence on 16 March 2014; (e) The date upon which the respondent will be first eligible to be released on parole is 15 September 2017. Catchwords: CRIMINAL LAW - appeal - sentence - Crown appeal - two offences - Crimes Act 1900; s 33(1)(b) - causing grievous bodily harm with intent to cause grievous bodily harm - victim was respondent's infant daughter - multiple injuries inflicted in both offences - aggregate sentence - head sentence of 4 years - non-parole period of 2 years - CRIMINAL LAW - appeal - sentence - whether the sentencing judge erred in reducing the respondent's moral culpability on the basis of a factual finding that was not reasonably open to him on the evidence - sentencing judge made remarks about victim being a noisy and difficult baby - remarks about victims behaviour being challenging - remarks about recognising that a parent is capable of lashing out in frustration when dealing with a crying baby - whether those findings of facts were open on the evidence - sentencing judge regarded to influence of the victim's crying and the respondent's reaction as relevant in the assessment of the subjective features of the offending - lessening moral culpability - erroneous - CRIMINAL LAW - appeal - sentence - whether the sentencing judge erred in finding that the objective seriousness of the offences fell well below the middle of the range - assessment not usually susceptible of interference on appeal - too much emphasis on nature of injuries - lack of consideration for other circumstances - erroneous - CRIMINAL LAW - appeal - sentence - whether the sentencing judge failed to disclose any adequate reasons as to how he came to impose an aggregate sentence - Crimes (Sentencing Procedure) Act 1999; s 53A - whether sentencing judge failed to specify on what basis the aggregate sentence was structured and how he came to that view - CRIMINAL LAW - appeal - sentence - whether the sentence is manifestly inadequate - very serious offences - vulnerable victim - offender in position of trust - wholly inadequate sentence - CRIMINAL LAW - appeal - sentence - resentencing - special circumstances - count one - 3 years non-parole and 2 year balance term - count two - 4 years non-parole and 3 years balance term - accumulation of one year Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Green v The Queen, Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Mulato v Regina [2006] NSWCCA 282 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 R v Koloamatangi [2011] NSWCCA 288 R v Nykolyn [2012] NSWCCA 219 SHR v R [2014] NSWCCA 94 Category: Principal judgment Parties: The Crown Anthony Lolesio (Respondent) Representation: Counsel: N Williams (Crown) K Averre (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Respondent) File Number(s): 2012/256026 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-12-20 00:00:00 Before: Blackmore DCJ File Number(s): 2012/256026