Lee v R

Case [2023] NSWCCA 70 27 March 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lee v R [2023] NSWCCA 70
Hearing dates: 22 February 2023
Date of orders: 27 March 2023
Decision date: 27 March 2023
Before: Price J at [1]
Wilson J at [3]
Dhanji J at [7]
Decision:
(1) Leave to appeal is granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – intimidation offence – specially aggravated detain for advantage offence – whether findings of the objective seriousness of both principal offences were not open on the facts of this case – whether the aggregate sentence imposed was manifestly excessive – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 86(1), 86(2), 86(3), 86(3)(b)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 53A
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
AB v R (2013) 33 A Crim R 205; [2013] NSWCCA 160
Ahmad v R [2021] NSWCCA 30
Amiri v R [2017] NSWCCA 157
Arnaout v R (2008) 191 A Crim R 149; [2008] NSWCCA 278
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
Benn v R [2023] NSWCCA 24
BJS v R [2013] NSWCCA 123
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Burke v R [2022] NSWCCA 6
Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58
Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Fuller v R [2022] NSWCCA 203
Greentree v R [2018] NSWCCA 227
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackson v R [2022] NSWCCA 148
JG v R [2023] NSWCCA 33
JM v R (2014) 245 A Crim R 528; [2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kerr v R [2016] NSWCCA 218
Kresovic v R [2018] NSWCCA 37
Lami v R [2021] NSWCCA 295
Magro v R [2020] NSWCCA 25
McMahon v R [2011] NSWCCA 147
Mulato v R [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
PD v R [2012] NSWCCA 242
PD v R [2012] NSWCCA 242
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R vBonett [2009] NSWCCA 135
R v Brown [2012] NSWCCA 199
R v Cook [2023] NSWCCA 9
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Lee [2021] NSWDC 601
R v Newell [2004] NSWCCA 183
R v Nykolyn [2012] NSWCCA 219
R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
R v Tristan Lee [2019] NSWDC 59
Sarhene v R [2022] NSWCCA 79
SHR v R [2014] NSWCCA 94
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

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 Lee v R

Details

AGLC: Lee v R [2023] NSWCCA 70
Case: [2023] NSWCCA 70
Decision Date: 27 March 2023

CaseChat Overview and Summary

The case of Lee v R involved the appellant, Lee, who was convicted of two offences: one of intimidation and another of detaining for advantage, which was specially aggravated. Lee appealed against the sentence imposed by the court, arguing that the findings of the objective seriousness of both offences were not open on the facts and that the aggregate sentence was manifestly excessive. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the trial judge erred in finding that the intimidation offence was of particular seriousness and whether the specially aggravated detain for advantage offence warranted a significant penalty enhancement. Additionally, the court had to consider whether the aggregate sentence was manifestly excessive, given the nature of the offences and the appellant's background. The appellant argued that the trial judge did not adequately consider the circumstances of the case when determining the objective seriousness of the offences and the overall sentence.

The court held that the trial judge's findings of the objective seriousness of the offences were open on the facts. The trial judge had carefully considered the circumstances of the case and the relevant principles. The court also found that the specially aggravated detain for advantage offence warranted a significant penalty enhancement, as it involved the exploitation of a vulnerable person. Regarding the aggregate sentence, the court concluded that it was not manifestly excessive, taking into account the nature and circumstances of the offences and the appellant's background. The appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the trial court was upheld.

Orders