Lambaditis v The Queen - [2016] NSWCCA 117

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lambaditis v R [2016] NSWCCA 117
Hearing dates: 30 May 2016
Decision date: 17 June 2016
Before: Simpson JA at [1]; Garling J at [42]; Wilson J at [43]
Decision:
(1) Leave to appeal against sentence granted;
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – manslaughter by unlawful and dangerous act – plea of guilty – assault occasioning actual bodily harm taken into account on Form 1 – whether sentence manifestly excessive – sentence imposed not manifestly excessive – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 21A, 44(2)
Crimes Act 1900 (NSW), s 24
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
R v Dyer [2014] NSWSC 1809
R v Field [2014] NSWSC 1797
R v Lane (No 3) [2015] NSWSC 118
R v Loveridge [2014] NSWCCA 120
R v Matthews [2015] NSWSC 49
R v McNeil (No 4) [2015] NSWSC 1198
R v Previtera (1997) 94 A Crim R 76
Category: Principal judgment
Parties: Nicholas Lambaditis (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Finnane QC (Applicant)
N Noman SC (Respondent)
Solicitors:
Darley Legal (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2013/331450
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

R v Lambaditis [2015] NSWSC 746

Date of Decision:

12 June 2015

Before:

Hall J

File Number(s):

2013/331450

Judgment

SIMPSON JA: On 12 June 2015, following his plea of guilty to a charge of manslaughter (of Lucio Rodrigues) the applicant was sentenced in the Supreme Court to imprisonment for 9 years, made up of a non-parole period of 6 years and 9 months, and a balance of term of 2 years and 3 months. A maximum sentence of imprisonment for 25 years is applicable to the offence (Crimes Act 1900 (NSW), s 24). The sentence imposed took into account, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) a further offence of which the applicant admitted his guilt, of assault occasioning actual bodily harm (“the Form 1 offence”), committed on the same occasion as the manslaughter. The applicant now seeks leave to appeal against the severity of the sentence.

Facts

An Agreed Statement of Facts was put before the sentencing judge.
The offence was committed on 3 November 2013, in the CBD of Sydney. The applicant had spent the previous evening in the company of a number of others. The event was what was known as a “buck’s party” to mark the imminent marriage of the applicant’s cousin. The party began in a penthouse suite in the city leased for the occasion. Food and alcohol were served. In the early hours of 3 November the party left the penthouse and went to a number of bars in the vicinity. Two of the venues…

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 Lambaditis v The Queen

Details

AGLC: Lambaditis v The Queen [2016] NSWCCA 117
Case: [2016] NSWCCA 117
Decision Date: 17 June 2016

CaseChat Overview and Summary

The case of Lambaditis v The Queen involved the defendant, Lambaditis, who had pleaded guilty to manslaughter by an unlawful and dangerous act. The dispute centred around the sentencing of the defendant, specifically whether the sentence imposed was manifestly excessive. The case was heard in the court of appeal, which had to determine if the sentence imposed by the trial judge was appropriate given the circumstances of the crime and the plea of guilty.

The legal issues that the court had to address were whether the sentence imposed by the trial judge was manifestly excessive, and whether the court should grant leave to appeal against the sentence. The court was required to consider the nature and circumstances of the offence, the plea of guilty, and the factors relevant to the imposition of the sentence. The court had to evaluate the totality of the circumstances to determine if the sentence imposed was manifestly excessive.

The court found that the sentence imposed by the trial judge was not manifestly excessive. The court took into account the nature and circumstances of the offence, the plea of guilty, and the factors relevant to the imposition of the sentence. The court held that the sentence was within the range of sentences that could be imposed for the offence of manslaughter by an unlawful and dangerous act. The court also found that the assault occasioning actual bodily harm taken into account on Form 1 was a relevant factor in determining the appropriate sentence. The court granted leave to appeal but dismissed the appeal.

In summary, the court held that the sentence imposed by the trial judge was not manifestly excessive. The court found that the sentence was within the range of sentences that could be imposed for the offence of manslaughter by an unlawful and dangerous act. The court granted leave to appeal but dismissed the appeal. The defendant was sentenced to a term of imprisonment with a non-parole period of six years.

Orders