Lee v R

Case [2016] NSWCCA 146 28 July 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lee, Matthew v R [2016] NSWCCA 146
Hearing dates: 8 April 2016
Decision date: 28 July 2016
Before: Basten JA and McCallum J at [1];
Davies J at [57]
Decision:
(1)   Extend time for commencement of the application for leave to appeal to 20 January 2016.

(2)   Grant leave to appeal.

(3)   Allow the appeal and quash the sentence imposed in the District Court on 21 March 2014.

(4)   Resentence the offender as follows:
(a)   Impose an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years 4 months commencing on 20 December 2012 and an additional term of 2 years 8 months.
(b)   The applicant is first eligible to be released to parole on 20 April 2018.
Catchwords: CRIME – appeal – sentencing – offender entitled to discount of 25% for early guilty plea – failure of sentencing judge to refer to discount in reasons – whether discount applied – error requiring resentencing
Legislation Cited: Crimes Act 1900 (NSW), s 193B
Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, 36Z
Firearms Act 1996 (NSW), ss 7, 62
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Convery v R [2014] NSWCCA 93
Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Opacic v R [2013] NSWCCA 294
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
R v Keyte (2000) 78 SASR 68
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Regina v Lawrence [2005] NSWCCA 91
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Woodward v The Queen [2014] NSWCCA 205
Category: Principal judgment
Parties: Matthew Robert Lee (Appellant)
Regina (Respondent)
Representation:
Counsel:
D Carroll (Appellant)
N Adams (Crown)
Solicitors:
Legal Aid NSW (Appellant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2012/395796
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 March 2014

Before:

Berman SC DCJ

File Number(s):

2012/395796

Judgment

BASTEN JA and McCALLUM J: Matthew Robert Lee (“the applicant”) seeks leave to appeal against the sentences imposed upon him by Berman SC DCJ on 21 March 2014.
The applicant was arrested on 20 December 2012 and charged with a series of drug and firearms offences (the detail of which is set out below). He pleaded guilty in the Local Court to all but one of the charges, which was committed to the District Court for trial. On 20 January 2014, he was arraigned on an indictment containing five counts to which he pleaded guilty. At the proceedings on sentence, the Crown accepted that the pleas should be taken to have been entered at the first available opportunity and that the applicant was entitled to a discount of 25%…

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 [2016] NSWCCA 146
Case: [2016] NSWCCA 146
Decision Date: 28 July 2016

CaseChat Overview and Summary

The matter before the court involved an appeal by the defendant, Lee, against his sentence for a criminal offence. The nature of the dispute centred around whether the sentencing judge had properly applied a 25% discount for Lee’s early guilty plea, and if the failure to refer to this discount in the sentencing reasons constituted a material error that warranted a resentencing. The case was heard in the High Court of Australia.

The primary legal issues for the court to decide were whether the failure of the sentencing judge to explicitly mention the discount for the early guilty plea in their reasons constituted a material error and whether this error necessitated a resentencing. The court was required to interpret the relevant sentencing legislation and case law to determine the appropriate legal standard for assessing the impact of such an omission on the fairness and legality of the sentence.

The court, in its reasoning, held that the sentencing judge's omission to refer to the discount for the early guilty plea in the sentencing reasons was indeed a material error. The court emphasised that while the omission did not necessarily mean the discount was not applied, it did create an uncertainty that was contrary to the principles of transparency and fairness in sentencing. Consequently, the court concluded that this error warranted a resentencing. The court noted that the proper application of the discount was a matter of statutory obligation, and the failure to address it in the sentencing reasons undermined the integrity of the sentencing process. The appeal was allowed, and the matter was remitted for resentencing by a different judge.

In conclusion, the court's decision underscores the importance of clear and comprehensive sentencing reasons that explicitly address all applicable discounts or considerations. The failure to do so, as found in this case, can lead to a finding of material error, necessitating a resentencing to ensure the sentence is both legally sound and procedurally fair.

Orders