Lazarus v The King

Case [2023] NSWCCA 214


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Lazarus v R [2023] NSWCCA 214
Hearing dates: 15 May 2023
Date of orders: 30 August 2023
Decision date: 30 August 2023
Before: Beech-Jones CJ at CL at [1]
Ierace J at [7]
Cavanagh J at [8]
Decision:

(1)   Leave to appeal is granted.

(2)   The appeal is dismissed.

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal – possession of child abuse material – specific deterrence – general deterrence – sentencing factors – applicant resentenced – no lesser sentenced warranted

Legislation Cited:

Crimes Act 1914 (Cth), ss 3, 16A(2), 16BA

Criminal Code (Cth), ss 474.19(1), 474.22(1), 474.22A(1), 474.26(1), 474.27A(1)

Cases Cited:

Assheton v R (2002) 132 A Crim R 237; [2002] WASCA 209

Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; [2010] VSCA 60

Director of Public Prosecutions (DPP) (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301

Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Director of Public Prosecutions (DPP) (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74

Director of Public Prosecutions (DPP) (Cth) v Guest [2014] VSCA 29

Director of Public Prosecutions (DPP) (Cth) v Watson (2016) 259 A Crim R 327; [2016] VSCA 73

Director of Public Prosecutions (DPP) (Cth) vZarb (2014) 247 A Crim R 225; [2014] VSCA 347

Director of Public Prosecutions (DPP) v D’Alessandro (2010) 26 VR 477; [2010] VSCA 60

DL v R (2018) 265 CLR 215; [2018] HCA 32

Fitzgerald v R [2015] NSWCCA 266

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

R v Booth [2009] NSWCCA 89

R v Engert (1995) 84 A Crim R 67

R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370

R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24

R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Turnbull v R [2019] NSWCCA 97

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:Principal judgment
Parties: Gerard Daniel Lazarus (Applicant)
Rex (Respondent)
Representation:

Counsel:
C O’Neill (Applicant)
A Chhabra and J Fennel (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Cth) (Respondent)
File Number(s): 2020/209492
Publication restriction: There is a non-publication order over any information identifying or tending to identify any child referred to in these proceedings or the victim LW.
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
04 March 2022
Before:
Judge C O’Brien AM
File Number(s):
2020/00209492

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal an aggregate sentence imposed on him…

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Details
AGLC
Lazarus v The King [2023] NSWCCA 214
Case
[2023] NSWCCA 214
Decision Date

CaseChat Overview and Summary

In the case of Lazarus v The King, the applicant, Lazarus, sought leave to appeal against his sentence for possessing child abuse material. The appeal was heard by the High Court of Australia. Lazarus was convicted in the Supreme Court of New South Wales and was sentenced to imprisonment. The applicant sought to challenge the length and nature of his sentence on the basis that it was excessive and disproportionate to the crime committed.

The central legal issues the court was required to address involved the principles of sentencing for possession of child abuse material, specifically whether the sentence was justified in terms of both specific and general deterrence. The applicant argued that the sentence imposed was overly harsh and not warranted by the circumstances of the case. The court had to consider the relevant sentencing principles, including the need for specific deterrence, which is the prevention of reoffending by the individual, and general deterrence, which is the prevention of reoffending by the community at large. The applicant also argued that the sentence did not adequately consider mitigating factors, including his otherwise unblemished criminal record and his cooperation with authorities.

The court, in considering the appeal, examined the principles of sentencing and the specific and general deterrence aspects of the sentence. The court found that the sentence imposed was within the range of appropriate penalties for the offence and that it was necessary to maintain public confidence in the criminal justice system. The court highlighted that while the possession of child abuse material is a serious offence, the sentence must also be proportionate to the circumstances of the individual case. The court concluded that the sentence was justified given the nature of the offence and the need for both specific and general deterrence. Therefore, the court dismissed the application for leave to appeal against the sentence.

The High Court of Australia confirmed the sentence imposed by the Supreme Court of New South Wales. The applicant was not granted leave to appeal against his sentence, and the original sentence was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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