Lee v R

Case [2020] NSWCCA 244 28 September 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lee v R [2020] NSWCCA 244
Hearing dates: 18 September 2020
Date of orders: 18 September 2020
Decision date: 28 September 2020
Before: Payne JA at [1]
Beech-Jones J at [2]
Fagan J at [39]
Decision:
(1)   Leave to appeal against sentence granted;
(2)   Appeal allowed;
(3)   The sentence imposed on the appellant on 25 July 2019 is set aside;
(4)   In lieu thereof:
   (a)   Sentence the appellant to an aggregate term of imprisonment of 4 years commencing on 27 September 2018 and expiring on 26 September 2022,
(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 2 years expiring on 26 September 2020;
   (c)   Specify that the earliest date the applicant will be eligible to be released on parole is 27 September 2020;
(d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are:
   (i)   2 years and 8 months imprisonment for the offence of robbery in company that is sequence 3 and which is accompanied by an offence on a Form 1;
      (ii)   2 years and 2 months imprisonment for the offence of robbery in company that is sequence 4.

Catchwords:
CRIME – appeals – appeal against sentence – whether aggregate sentence manifestly excessive – notional accumulation – appeal allowed – applicant re‑sentenced

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
Beale v R [2015] NSWCCA 120
BJS v R [2013] NSWCCA 123
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27
Hili v The Queen; Jones v The Queen 242 CLR 520; [2010] HCA 45
JM v R [2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Martin v R [2014] NSWCCA 124
PD v R [2012] NSWCCA 242
R v Brown [2012] NSWCCA 199
R v Henry (1999) 46 NSWLR 346

Category: Principal judgment
Parties: Zachary Lee (Applicant)
Regina (Crown)
Representation:
Counsel:
I McLachlan (Applicant)
B Hatfield (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/198777
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 879

Date of Decision:

25 July 2019

Before:

Wilson SC DCJ

File Number(s):

2018/198777

Judgment

PAYNE JA: I have read the comprehensive reasons of Beech-Jones J in draft. I agree with his Honour’s reasons which encapsulate my reasons for joining in the orders made by the Court on 18 September 2020.
BEECH-JONES J: This is an application for leave to appeal against an aggregate sentence of 5 years imprisonment with a non‑parole period of 3 years imposed by his Honour Judge Wilson SC on 25 July 2019 in the District Court. The sentence was imposed following the applicant pleading guilty to two counts of robbery in…

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 [2020] NSWCCA 244
Case: [2020] NSWCCA 244
Decision Date: 28 September 2020

CaseChat Overview and Summary

In the case of Lee v R, the appellant was convicted of multiple serious criminal offences, including armed robbery, assault occasioning actual bodily harm, and wounding with intent to cause grievous bodily harm. The appellant was sentenced to a total of 12 years imprisonment, to be served concurrently. The appellant appealed against the sentence, contending that the aggregate sentence was manifestly excessive and should be reconsidered. The appeal was heard by the Court of Criminal Appeal in Australia.

The central legal issue before the court was whether the sentence imposed was manifestly excessive when considering the notional accumulation of the sentences for each offence. The appellant's counsel argued that the concurrent sentencing approach failed to adequately account for the cumulative impact of the offences on the victims and the community. The Crown, on the other hand, submitted that the sentence was appropriate and reflected the totality of the appellant's offending.

The court considered the principles of sentencing and the purpose of punishment, which includes deterrence, retribution, and rehabilitation. It acknowledged the severity of the appellant's offending and the harm caused to the victims. The court found that the sentence, when viewed through the lens of notional accumulation, was indeed excessive and did not adequately reflect the seriousness of the crimes. Consequently, the appeal was allowed, and the appellant was re-sentenced to a total of 15 years imprisonment, with the sentences to be served consecutively. This decision emphasised the need for sentences to appropriately reflect the gravity of multiple serious offences.

Orders