Lee v R

Case [2019] NSWCCA 15 8 February 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lee v R [2019] NSWCCA 15
Hearing dates: 19 November 2018
Date of orders: 08 February 2019
Decision date: 08 February 2019
Before: Hoeben CJ at CL at [1];
Rothman J at [2];
Price J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – possession of equipment to commit forgery – dealing in identification information with intention of facilitating fraud – participation in a criminal group – whether financial gain is an inherent characteristic of an offence of dealing with identification information contrary to s 192J Crimes Act – whether error in judge’s finding that financial gain was an aggravating factor – whether aggregate sentence was manifestly excessive – highly exceptional hardship to applicant’s son – whether less weight to be given to general deterrence – significance of general deterrence for identity crimes – sentence not manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 93T, 192J, 265
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
Cases Cited: Chen v R; He v R [2018] NSWCCA 95
Clinton v R [2018] NSWCCA 66
Couloumbis v R [2012] NSWCCA 264
Dinsdale v The Queen (2000) 200 CLR 321; [2000] HCA 54
Dipangkear v R [2010] NSWCCA 156
House v R (1936) 55 CLR 499; [1935] HCA 40
Huang v R [2017] NSWCCA 312
Hurmz v R [2017] NSWCCA 235
Lin v R [2018] NSWCCA 13
Mansour v R [2011] NSWCCA 28; (2011) 209 A Crim R 275
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
Prculovski v R [2010] NSWCCA 274
R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
Stevens v R [2009] NSWCCA 260; (2010) 262 ALR 91
Wat v R [2017] NSWCCA 62
Category: Principal judgment
Parties: Michael Lee (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Parsons (Applicant)
B Baker (Respondent)
Solicitors:
Ren Zhou Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/370863
Publication restriction: Non-publication order as to the name of the Applicant’s son
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 201

Date of Decision:

28 June 2018

Before:

Scotting DCJ

File Number(s):

2015/370863

Judgment

HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.
ROTHMAN J: I agree with Price J.
PRICE J: Michael Lee (“the applicant”) was sentenced in the District Court at Sydney on 28 June 2018 after pleading guilty to the following four counts on an indictment:

“1 [O]n the 17th day of December 2015, at Campsie in the State of New South Wales, did possess an Embossing machine, Fargo card printer, Fargo HDP colour ribbon, blank cards, blank cards with black magnetic strip, blank cards with blue magnetic strip, laminator, computer hardware and clear film designed/adapted for making a false document, knowing…

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 15
Case: [2019] NSWCCA 15
Decision Date: 08 February 2019

CaseChat Overview and Summary

In the case of Lee v R, the appellant, Lee, sought to appeal against his sentence for various offences, including possession of equipment to commit forgery, dealing in identification information with intent to facilitate fraud, and participation in a criminal group. The appeal was heard in the High Court of Australia. Lee argued that the primary judge erred in considering financial gain as an aggravating factor in sentencing and that the aggregate sentence was manifestly excessive, particularly in light of the hardship it caused his son. The central legal issues were whether financial gain was an inherent characteristic of the offence of dealing in identification information under section 192J of the Crimes Act, whether the judge's finding on financial gain constituted an error, and whether the overall sentence was manifestly excessive given the exceptional circumstances.

The court found that financial gain was not an inherent characteristic of the offence under section 192J but acknowledged that it could be an aggravating factor. It held that the judge did not err in considering financial gain as such but did not sufficiently explain why it was an aggravating factor in this case. The court held that the sentence was not manifestly excessive and that general deterrence remained a significant consideration in sentencing for identity crimes. Although the appellant's son faced exceptional hardship, this did not warrant reducing the weight given to general deterrence. The court emphasised that the sentence reflected the seriousness of the offences and the need to deter similar conduct in the future.

The appeal was dismissed, and the original sentence upheld. The court's decision underscored the importance of deterrence in cases involving identity crimes and highlighted the limited circumstances in which a sentence might be deemed manifestly excessive.

Orders