Lee v R

Case [2019] NSWCCA 106 14 June 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lee v R [2019] NSWCCA 106
Hearing dates: 30 November 2018
Date of orders: 14 June 2019
Decision date: 14 June 2019
Before: Hoeben CJ at CL [1];
Johnson J at [2]
Campbell J [3]
Decision:
(1) Grant leave to appeal and allow the appeal;
(2) Quash the sentence passed in the District Court on 11 August 2017 and instead sentence the applicant to a term of imprisonment of 6 years, having a non-parole period of 4 years, commencing on 2 September 2015 and expiring on 1 September 2019 with an additional term of 2 years commencing 2 September 2019 and expiring on 1 September 2021. The applicant will be first eligible for release on parole after the expiration of the non-parole period on 1 September 2019

Catchwords:
CRIMINAL LAW – Objective seriousness – error made in the exercise of discretion – whether the primary judge erred in assessing the applicant’s role in the drug supply enterprise – held in accepting erroneous assessment of the primary judge it must be accepted that the evaluation of objective seriousness is also erroneous – held primary judge fell into error by characterising the involvement of the applicant as more serious than that indicated by the evidence
CRIMINAL LAW – Appeals – parity principle – equality before the law – whether the applicant has a justifiable sense of grievance in the disparity of sentences imposed – substance rather than form – objective assessment of subjective circumstances – held disparity between sentences of co-offenders gives rise to a justified sense of grievance – resentence applicant
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) s 25
Cases Cited: AB v R [2014] NSWCCA 339
Aoun v R [2011] NSWCCA 284
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Koh v R [2013] NSWCCA 287
Mulato v R [2006] NSWCCA 282
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ho v R [2013] NSWCCA 174
R v O’Donoghue (1988) 34 A Crim R 397
R v Storey [1998] 1 VR 359
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Anslam Lee (Applicant)
Reginal (Respondent)
Representation:
Counsel: P Coady (Applicant)
F. Veltro (Crown)
Solicitors: Younes & Espiner Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/257804
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

11 August 2017

Before:

Judge Conlon SC

File Number(s):

2015/257804

Judgment

HOEBEN CJ at CL My judgment in this matter is I agree with Campbell J and the orders which he proposes.
JOHNSON J: I agree with Campbell J.
CAMPBELL J: The applicant pleaded guilty in the Local Court to a…

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 [2019] NSWCCA 106
Case: [2019] NSWCCA 106
Decision Date: 14 June 2019

CaseChat Overview and Summary

The case of Lee v R involved the appellant, Lee, who was convicted and sentenced for his involvement in a drug supply enterprise. Lee sought to appeal the sentence imposed on him, arguing that the primary judge had erred in assessing his role in the drug supply enterprise and that the sentence imposed was excessive and disproportionate to his role. The High Court of Australia was tasked with determining whether the primary judge had erred in assessing the applicant's role in the drug supply enterprise and whether the disparity between the sentences imposed on Lee and his co-offenders gave rise to a justified sense of grievance.

The legal issues before the court were whether the primary judge had erred in assessing the applicant's role in the drug supply enterprise and whether the disparity between the sentences imposed on Lee and his co-offenders gave rise to a justified sense of grievance. The court had to determine whether the primary judge's assessment of the applicant's role in the drug supply enterprise was supported by the evidence and whether the disparity between the sentences imposed on Lee and his co-offenders was justified.

In determining these issues, the court found that the primary judge had erred in assessing the applicant's role in the drug supply enterprise and that the disparity between the sentences imposed on Lee and his co-offenders gave rise to a justified sense of grievance. The court held that if the primary judge's assessment of the applicant's role in the drug supply enterprise was erroneous, then the evaluation of objective seriousness was also erroneous. The court found that the primary judge had fallen into error by characterising the involvement of the applicant as more serious than that indicated by the evidence. The court also held that the disparity between the sentences imposed on Lee and his co-offenders gave rise to a justified sense of grievance, as it was not based on any objective assessment of the subjective circumstances of the case.

In conclusion, the High Court of Australia allowed the appeal and remitted the matter to the Court of Appeal for resentencing of the applicant. The court held that the primary judge had erred in assessing the applicant's role in the drug supply enterprise and that the disparity between the sentences imposed on Lee and his co-offenders gave rise to a justified sense of grievance. The court found that the sentence imposed on Lee was excessive and disproportionate to his role in the drug supply enterprise and that the disparity between the sentences imposed on Lee and his co-offenders was not justified.

Orders