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Lazarus v The King

Lazarus v The King

Case [2023] NSWCCA 214 30 August 2023

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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…

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 Lazarus v The King

Details

AGLC: Lazarus v The King [2023] NSWCCA 214
Case: [2023] NSWCCA 214
Decision Date: 30 August 2023

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