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Lambkin v R

Lambkin v R

Case [2020] NSWCCA 327 11 December 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lambkin v R [2020] NSWCCA 327
Hearing dates: 3 December 2020
Date of orders: 11 December 2020
Decision date: 11 December 2020
Before: Simpson AJA at [1]
Bellew J at [2]
Campbell J at [95]
Decision:
Leave to appeal against sentence is refused.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant pleaded guilty to encouraging the commission of an offence of intentionally causing a fire – Where applicant was a retained firefighter – Whether the sentencing judge erred in taking into account that position in assessing the applicant’s moral culpability – Whether the sentencing judge erred in his assessment of the level of the applicant’s remorse – Whether the sentencing judge erred in his assessment of the discount for the plea of guilty and assistance – Whether the sentencing judge erred in failing to take into account the applicant’s mental state – Whether the sentencing judge erred in the manner in which he dealt with identical offences on a Form 1 – Whether sentence manifestly excessive – Where some of the issues which were sought to be raised on appeal were at odds with concessions which were made in the Court below – No error established – No merit in any ground of appeal sought to be advanced – Leave to appeal refused

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Abbas & ors v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bayram v R [2012] VSCA 6
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Dionys v R (2011) 217 A Crim R 280; [2011] NSWCCA 272
Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87
Keane v R [2011] VSCA 156
Nguyen v R (2004) 149 A Crim R 343; [2004] NSWCCA 332
R v Baker [2000] NSWCCA 85
R v Calcutt (2012) 221 A Crim R 505; [2012] NSWCCA 40
R v DP [2019] NSWCCA 55
R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175
R v Pont (2000) 121 A Crim R 302; [2000] NSWCCA 419
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Romero v R (2011) 32 VR 386; [2011] VSCA 45
Ryan v R [2009] NSWCCA 183
Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215
Van Zwam v R [2017] NSWCCA 127
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Category: Principal judgment
Parties: Joshua Lambkin – Applicant
Regina – Respondent
Representation:
Counsel:
J Lo Schiavo – Applicant
E Balodis – Respondent
Solicitors:
Greg Murphy Legal – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2017/233129
Publication restriction:

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 Lambkin v R

Details

AGLC: Lambkin v The Queen [2020] NSWCCA 327
Case: [2020] NSWCCA 327
Decision Date: 11 December 2020

CaseChat Overview and Summary

The appellant, Lambkin, appealed against his sentence for encouraging the commission of an offence of intentionally causing a fire. Lambkin, a retained firefighter, pleaded guilty to the offence. The appeal focused on several aspects of the sentencing process, including the judge's consideration of Lambkin's role as a retained firefighter, his level of remorse, the discount for the plea of guilty and assistance, and the judge's handling of identical offences on a Form 1. Additionally, Lambkin argued that the sentence was manifestly excessive and that the judge failed to take into account his mental state.

The legal issues centred on whether the sentencing judge erred in considering Lambkin's position as a retained firefighter in assessing his moral culpability, whether the judge correctly assessed the level of Lambkin's remorse, and whether the judge erred in his assessment of the discount for the plea of guilty and assistance. Furthermore, the appeal questioned whether the judge erred by not taking Lambkin's mental state into account and if the manner in which he dealt with identical offences on a Form 1 was appropriate. Lastly, the appeal argued that the sentence was manifestly excessive.

The court found no error in the judge's consideration of Lambkin's role as a retained firefighter, his assessment of Lambkin's remorse, or the discount for the plea of guilty and assistance. The court also determined that there was no error in the judge's handling of identical offences on a Form 1 and that the sentence was not manifestly excessive. Some of the issues raised on appeal were at odds with concessions made in the Court below, and the court found no merit in any ground of appeal sought to be advanced. Consequently, leave to appeal was refused.

Orders