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Lambert v R

Lambert v R

Case [2015] NSWCCA 22 3 March 2015

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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

WARD JA: I agree with Simpson J.
SIMPSON J: By notice of application filed in this Court on 30 September 2014,…

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 Lambert v R

Details

AGLC: Lambert v R [2015] NSWCCA 22
Case: [2015] NSWCCA 22
Decision Date: 03 March 2015

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.

Orders