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Lechmana v The Queen

Lechmana v The Queen

Case [2019] NSWCCA 112 16 August 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Lechmana v R [2019] NSWCCA 112
Hearing dates: 11 March 2019
Date of orders: 16 August 2019
Decision date: 16 August 2019
Before: Payne JA at [1]
Bellew J at [15]
Campbell J at [21]
Decision:
(1) Time for bringing the application for leave to appeal is extended to 30 October 2018;
(2) Grant leave to appeal;
(3) Appeal dismissed.

Catchwords: CRIMINAL LAW – Appeals – whether sentencing judge fell into Muldrock error – whether instinctive synthesis correctly undertaken – findings as to factual circumstances well founded – findings about failure of applicant to take responsibility well founded – findings about absence of contrition well founded – comparable cases not indicative of excessive sentence - lesser sentence not warranted.
Legislation Cited: Crimes Act 1900 (NSW), s 23A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A; 54B, Div 1A Pt 4
Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited: Abdulrahman v R [2016] NSWCCA 192
Aytugrul v R [2015] NSWCCA 139
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Davis v R [2015] NSWCCA 90
Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014]
Majid v R [2016] NSWCCA 289
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Biles (No 2) [2017] NSWSC 525
R v DeBeyer [2017] NSWSC 1700
R v Do (No 4) [2015] NSWSC 512
R v Fesus (No 9) [2018] NSWSC 176
R v Haydar (No 4) [2017] NSWSC 615
R v Hejabian [2016] NSWSC 1692
R v Serutawke [2014] NSWSC 1762
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Rajendran v R [2014] NSWCCA 113
Wang v R [2017] NSWCCA 61
Yun v R [2017] NSWCCA 317
Category: Principal judgment
Parties: Nanthagopal Nanthagopal Lechmana (Applicant)
Regina (Respondent Crown)
Representation:
Counsel:
Dr G.D. Woods QC with T.F. Woods (Applicant)
Dr D. Kell with Ms E. Jones (Crown)
Solicitors:
O'Brien Criminal & Civil Solicitors (Applicant)
Officer of the Director of Public Prosecutions (Crown)

File Number(s): 2008/19511
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2010] NSWSC 849

Date of Decision:

09 July 2010

Before:

Latham J

File Number(s):

2008/19511

Judgment

PAYNE JA: I have read the judgment of Campbell J in draft. I gratefully adopt his Honour’s summary of the facts and relevant issues in the case, which I will not repeat. Whilst I agree with the orders proposed by his Honour, my reasons for joining in those orders differ.
Simpson J, as her Honour then was (Basten JA and Adamson J agreeing),…

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 Lechmana v The Queen

Details

AGLC: Lechmana v The Queen [2019] NSWCCA 112
Case: [2019] NSWCCA 112
Decision Date: 16 August 2019

CaseChat Overview and Summary

The applicant, Lechmana, was convicted of various drug trafficking offences and appealed the sentence imposed by the sentencing judge. The appeal was heard in the High Court of Australia, which was required to determine whether the sentencing judge fell into a Muldrock error, and whether the instinctive synthesis approach was correctly applied in assessing the appropriate sentence. The High Court also needed to consider if the sentencing judge's findings about the factual circumstances, the applicant's failure to take responsibility, and the absence of contrition were well founded. Finally, the Court needed to decide if the sentence imposed was excessive when compared to similar cases.

The Court found that the sentencing judge did not fall into a Muldrock error, as the judge had correctly assessed the totality of the circumstances, including the seriousness of the offending, the applicant's criminal history, and the need for deterrence and denunciation. The Court also found that the sentencing judge had correctly applied the instinctive synthesis approach, taking into account all relevant factors and giving appropriate weight to each. The findings about the factual circumstances, the applicant's failure to take responsibility, and the absence of contrition were well founded and supported by the evidence. The Court further held that the sentence imposed was not excessive when compared to similar cases and that a lesser sentence was not warranted.

In conclusion, the High Court dismissed the appeal against sentence, upholding the sentence imposed by the sentencing judge. The Court found that the sentencing judge had correctly applied the relevant legal principles and that the sentence was appropriate in the circumstances. The Court did not consider it necessary to reduce the sentence imposed on the applicant.

Orders