Lambert v R

Case [2015] NSWCCA 22


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Lambert v R [2015] NSWCCA 22
Hearing dates:11 February 2015
Decision date: 03 March 2015
Before: Ward JA at [1]; Simpson J at [2]; Davies J at [53]
Decision:

(1)  Extend the time within which to apply for leave to appeal against the sentence imposed on 29 January 2013;

(2)  Refuse leave to appeal against that sentence;

(3)  Grant leave to appeal against the sentence imposed on 28 February 2014;

(4)  Allow the appeal against that sentence;

(4A)  Quash the sentence imposed on 28 February 2014;

(5)  Remit the proceedings to the District Court for further hearing.
Catchwords:

APPEAL - supply of a prohibited drug - whether appropriate weight attributed to applicant’s personal history - Bugmy v The Queen [2013] HCA 37 - substantial weight attributed - leave to appeal refused

APPEAL - breach of good behaviour bond - bond revoked - applicant sentenced to term of imprisonment - whether error in failing to consider non-custodial sentences - Crimes (Sentencing Procedure) Act 1999 (NSW), s 7, s 12, s 98 and s 99 - power of appellate to entertain new issues in the interest of justice - R v Birks (1990) 19 NSWLR 677 - uncertain suitability of appellant for intensive correction order - proceedings remitted to District Court for further consideration

APPEAL - sentencing - whether error in declining to find special circumstances justifying reduction in non-parole period - first custodial sentence of offender - Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 - no error
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2008 (NSW), cl 175
Crimes (Sentencing Procedure) Act 1999 (NSW), s 6, s 7, s 12, s 44(2), s 50, s 67(1)(b), s 98, s 99, Pt 4, Pt 5
Criminal Appeal Act 1912 (NSW), s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 29
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Birks (1990) 19 NSWLR 677
R v Boughen; R v Cameron [2012] NSWCCA 17; 215 A Crim R 476
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Zerafa [2012] NSWSC 978
R v Zreika [2012] NSWCCA 44; 223 A Crim R 460
Category:Principal judgment
Parties: Rachel Jaia Lambert (Applicant)
Regina (Respondent)
Representation:

Counsel:
I McLachlan (Applicant)
J Girdham SC (Respondent)

Solicitors:
S E O’Connor - Legal Aid NSW (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)
File Number(s):2012/2143
 Decision under appeal 
Court or tribunal:
District Court
Date of Decision:
29 January 2013; 28 February 2014
Before:
Colefax DCJ
File Number(s):
2012/2143

Judgment

  1. WARD JA: I agree with Simpson J.

  2. SIMPSON J: By notice of application filed in this Court on 30 September 2014,…

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AGLC
Lambert v R [2015] NSWCCA 22
Case
[2015] NSWCCA 22
Decision Date

CaseChat Overview and Summary

The appeal in Lambert v R involved a defendant who was convicted of supplying a prohibited drug and subsequently breached the conditions of a good behaviour bond, resulting in his sentence being revoked and a new sentence of imprisonment imposed. The defendant sought to appeal various aspects of the sentencing and the conditions of the bond, including the weight given to his personal history and the consideration of non-custodial sentencing options. The appeal was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the sentencing judge appropriately considered the defendant's personal history and if there was an error in not exploring non-custodial sentencing options. Additionally, the court had to determine if there was an error in the sentencing judge's decision not to find special circumstances justifying a reduction in the non-parole period. The court also considered whether the defendant was suitable for an intensive correction order.

In addressing these issues, the court found that while substantial weight was appropriately given to the defendant's personal history, there was an error in the failure to consider non-custodial sentencing options. The court exercised its appellate power to remit the proceedings back to the District Court for reconsideration of these options in the interest of justice. However, the court determined that there was no error in the sentencing judge's decision not to find special circumstances justifying a reduction in the non-parole period. The appeal was ultimately dismissed with respect to the non-parole period but remitted for reconsideration of the non-custodial options.

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