Lami v The Queen - [2021] NSWCCA 295

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lami v R [2021] NSWCCA 295
Hearing dates: 12 November 2021
Date of orders: 10 December 2021
Decision date: 10 December 2021
Before: Macfarlan JA at [1];
Rothman J at [2];
Dhanji J at [3].
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence –whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge gave “undue and overwhelming” weight to general deterrence – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1914 (Cth), s 16A(2), s 16A(2)(ja)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code (Cth), s 400.3(2), (4)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Greentree v R [2018] NSWCCA 227
House v The King (1936) 55 CLR 499; [1936] HCA 40
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
R v Bonett [2009] NSWCCA 135
R v Viana [2008] NSWCCA 188

Category: Principal judgment
Parties: Zahraa Lami (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Yeh (Applicant)
T Muir (Respondent)
Solicitors:
Barriston Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2017/236927
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

2 November 2020

Before:

Armitage ADCJ

File Number(s):

2017/236927

Judgment

MACFARLAN JA: I agree with Dhanji J.
ROTHMAN J: I agree with the reasons for judgment of Dhanji J and the orders he proposes.
DHANJI J: The applicant, Ms Zahraa Lami, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on her by Armitage ADCJ on 2 November 2020 in the District Court at Sydney.
On 23 July 2020 the applicant pleaded guilty to one count of dealing with money or property that was proceeds of crime, being reckless as to the fact that it was proceeds of crime, where the value of the property was $1,000,000 or more (contrary to s 400.3(2) of the Criminal Code (Cth)). The offence was particularised as having been committed between 18 and 21 July 2017. The maximum penalty is imprisonment for 12 years.
On 2 November 2020 the applicant was sentenced in the District Court by Armitage ADCJ to 4 years imprisonment commencing on 19 September 2020 and expiring on 18 September 2024, with a non-parole period of 2 years imprisonment expiring on 18 September 2022.
The applicant seeks leave to appeal on the following two grounds:

“a. The sentencing judge erred in assessing the objective seriousness of the [applicant’s] offending behaviour, in that, he failed to give appropriate weight to the mitigating circumstances that would have persuaded him to find that the objective seriousness of the offence was well below the mid-range, even low range;
b. The sentencing judge erred in assessing the objective seriousness of the [applicant’s] behaviour by giving undue and overwhelming weight to general…

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 Lami v The Queen

Details

AGLC: Lami v The Queen [2021] NSWCCA 295
Case: [2021] NSWCCA 295
Decision Date: 10 December 2021

CaseChat Overview and Summary

The case of Lami v The Queen involves an appeal by the respondent against his sentence, handed down by a lower court. The appellant, Lami, was convicted of a crime and sentenced to a term of imprisonment. Dissatisfied with the sentence, Lami appealed to the higher court, arguing that the sentencing judge had erred in assessing the objective seriousness of the crime and had given undue weight to the consideration of general deterrence when determining his sentence.

The primary legal issues before the court were whether the sentencing judge had erred in assessing the objective seriousness of the crime and whether the judge had placed excessive emphasis on general deterrence when imposing the sentence. Lami argued that the sentence was manifestly excessive and that the judge had not appropriately balanced the various considerations relevant to sentencing. The respondent, The Queen, contended that the sentence was appropriate and that the judge had correctly considered all relevant factors.

In determining the appeal, the court examined the sentencing principles and the relevant considerations that the sentencing judge should have taken into account. The court held that, while the sentencing judge had indeed placed some emphasis on general deterrence, this was not an inappropriate or disproportionate factor in the context of the crime committed. The court also found that the sentence imposed was not manifestly excessive and that the sentencing judge had correctly assessed the objective seriousness of the crime. Accordingly, the appeal was dismissed, and leave to appeal was granted.

Orders