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Lamis v The Queen

Lamis v The Queen

Case [2016] NSWCCA 274 2 December 2016

Appeal

Sentencing

Mental Health

Manifestly Excessive Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lamis v R [2016] NSWCCA 274
Hearing dates: 21 November 2016
Date of orders: 02 December 2016
Decision date: 02 December 2016
Before: Hoeben CJ at CL at [1]
R A Hulme J at [2]
Schmidt J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – leave to appeal and appeal against sentence – leave to appeal granted – whether sentence was manifestly excessive – purposes of sentencing – relevance of mental health condition – applicant’s desire for an extended period of supervision and mental health treatment – sentence for the firearms offence was not too high – overall lenient sentence was imposed – appeal dismissed
Legislation Cited: Firearms Act 1996 (NSW), s 3, s 7(1)
Crimes Act 1900 (NSW), s 193B(3)
Summary Offences Act 1988 (NSW), s 11C(1)
Crimes (Sentencing Procedure Act) 1999 (NSW), s 3A, s 44 s 54A(2)
Cases Cited: 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
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9
Franklin v R [2013] NSWCCA 122
House v The King (1936) 55 CLR 499; [1936] HCA 40
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MP v Regina [2009] NSWCCA 226
MPB v The Queen (2013) 234 A Crim R 576; [2013] NSWCCA 213
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Amurao [2005] NSWCCA 32
R v Goktas [2004] NSWCCA 296
R v Hemsley [2004] NSWCCA 228
R v Jarrold [2010] NSWCCA 69
R v Najem [2008] NSWCCA 32
R v Tolley [2004] NSWCCA 165
R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115
Thalari v Regina (2009) 75 NSWLR 307; [2009] NSWCCA 170
Category: Principal judgment
Parties: Dante Lamis (Applicant)
Regina (Crown)
Representation:
Counsel:
Mr EWL Anderson (Applicant)
Ms V Lydiard (Crown)
Solicitors:
Matouk Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/29556
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal Law

Citation:

--

Date of Decision:

17 May 2016

Before:

Garling ADCJ

File Number(s):

2015/29556

Judgment

HOEBEN CJ at CL: I agree with Schmidt J and the orders which she proposes.
R A HULME J: Schmidt J has concluded that the sole ground of appeal asserting that the sentence imposed upon the applicant is manifestly excessive is not made out. I agree with her Honour and with the orders she proposes.
SCHMIDT J: Mr Lamis seeks leave to appeal a sentence imposed upon him after he pleaded guilty to two offences committed at the…

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 Lamis v The Queen

Details

AGLC: Lamis v The Queen [2016] NSWCCA 274
Case: [2016] NSWCCA 274
Decision Date: 02 December 2016

CaseChat Overview and Summary

In the matter of Lamis v The Queen, the applicant sought leave to appeal and to appeal against the sentence imposed by the Court of Appeal of the Supreme Court of Victoria. The applicant was convicted of a firearms offence and had been sentenced to a term of imprisonment with a non-parole period. The applicant's appeal focused on the severity of the sentence, contending it was manifestly excessive and did not adequately consider his mental health condition or the need for extended supervision and mental health treatment. The Court of Appeal was tasked with determining whether the sentence was indeed excessive and whether the lower court had failed to appropriately weigh the purposes of sentencing, including the applicant’s mental health needs.

The legal issues central to the Court of Appeal's decision included the assessment of whether the sentence imposed was manifestly excessive and the consideration of the purposes of sentencing as outlined in the Sentencing Act. The Court had to examine whether the trial judge appropriately balanced the seriousness of the offence with the applicant's mental health condition and his need for extended supervision and treatment. The applicant argued that the sentence did not reflect the need for a more lenient approach considering his mental health and the potential benefits of extended supervision.

The Court of Appeal held that the sentence imposed was not manifestly excessive, noting that while the firearms offence was serious, the overall sentence was lenient. The court found that the trial judge had adequately considered the purposes of sentencing, including the applicant's mental health condition and the need for treatment. The Court of Appeal concluded that the sentence was proportionate and that the applicant's desire for an extended period of supervision and mental health treatment was appropriately addressed within the overall sentence. Consequently, the leave to appeal and the appeal against sentence were dismissed.

Orders