Lago v R

Case [2015] NSWCCA 296 27 November 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lago v R [2015] NSWCCA 296
Hearing dates: 26 October 2015
Decision date: 27 November 2015
Before: Gleeson JA at [1];
Button J at [70];
Fagan J at [71]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeals – sentencing – whether uncharged criminal conduct treated as an aggravating factor – whether unfair disparity between applicant’s and co-offender’s sentences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 32
Criminal Procedure Act 1986 (NSW) Ch 3, Pt 3
Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 32(1), Sch 1
Cases Cited: Dwayhi v R; Bechara v R [2011] NSWCCA 67; 205 A Crim R 274
Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
England v R; Phanith v R [2009] NSWCCA 274
Green v The Queen [2011] HCA 49; 244 CLR 462
House v The King [1936] HCA 40; 55 CLR 499
Lewins v R [2007] NSWCCA 189; 175 A Crim R 40
Peiris v R [2014] NSWCCA 58
R v Wei Pan [2005] NSWCCA 114
Rae v R [2011] NSWCCA 211
SBF v R [2009] NSWCCA 231; 198 A Crim R 219
Sills v R [2011] NSWCCA 271
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Velez v R [2015] NSWCCA 177
Category: Principal judgment
Parties: Michael Lago (Applicant)
Regina (Crown)
Representation:
Counsel:
G Wendler (Applicant)
N Noman SC (Crown)
Solicitors:
Van Houten Law Solicitor (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/109952
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 December 2014

Before:

Payne DCJ

File Number(s):

2013/109952

Judgment

GLEESON JA: The applicant, Michael Lago, seeks leave to appeal against a sentence imposed upon him in the District Court at Parramatta by Payne DCJ on 18 December 2014 for the offence of supplying a prohibited drug, namely, 55.6 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).
The offence occurred on 10 April 2013. The applicant entered a plea of not guilty. After an eight day trial the jury returned a verdict of guilty on the supply charge and the applicant was convicted on 1 September 2014.
The maximum penalty for the offence is imprisonment for 15 years, a $220,000 fine, or both: s 32(1). No standard non-parole period is prescribed.
Her Honour imposed a sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months to date from 31 August 2014 and to expire on 28 February 2017.

Relevant facts

The applicant did not give evidence during the trial or the proceedings on sentence. The following summary is taken from her Honour’s findings on sentence, which were not challenged on appeal except in one respect. This concerned the respective roles of the applicant and…

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 Lago v R

Details

AGLC: Lago v R [2015] NSWCCA 296
Case: [2015] NSWCCA 296
Decision Date: 27 November 2015

CaseChat Overview and Summary

Lago was convicted for his involvement in a drug trafficking operation. The applicant appealed against his sentence, arguing that the sentencing judge had unfairly considered uncharged criminal conduct as an aggravating factor, and that the disparity between his sentence and that of his co-offender was unjust. The High Court of Australia was tasked with determining whether the sentencing judge correctly considered uncharged criminal conduct and whether the disparity in sentencing was fair.

The court examined the principles governing sentencing and the consideration of uncharged criminal conduct. It was established that while uncharged criminal conduct can be considered in sentencing, it must be directly relevant to the offence for which the person is being sentenced. The court further assessed whether the disparity in sentences between the applicant and his co-offender was unjust, taking into account the totality of the circumstances, including the respective roles of the offenders and the nature of the offences. The court concluded that the sentencing judge did not err in considering uncharged criminal conduct and that the disparity in sentences was justified based on the circumstances of the case.

In its judgment, the court held that the sentencing judge did not misapply the principles of sentencing by considering uncharged criminal conduct. The court further found that the disparity in sentences was justified, as it reflected the differences in the roles and culpability of the applicant and his co-offender. The appeal was dismissed, and the original sentence was upheld.

The court did not make any further orders beyond dismissing the appeal and upholding the original sentence.

Orders