Lee v R

Case [2012] NSWCCA 123 8 June 2012

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lee v R [2012] NSWCCA 123
Hearing dates: 15 May 2012
Decision date: 08 June 2012
Before: HOEBEN JA at [1]
HIDDEN J at [69]
BEECH-JONES J at [70]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - conspiracy to deal with money in excess of $1 million, conspiracy to import not less than the trafficable quantity of heroin, conspiracy to traffic in a marketable quantity of heroin and methamphetamine - whether adequate effect given to role of applicant in conspiracy - application of parity principle - whether applicant's "good character" appropriately dealt with by sentencing judge - whether discount for plea of guilty appropriately applied - need to take into account prospects for rehabilitation.
Legislation Cited: Commonwealth Crimes Act 1914
Customs Act 1901 (Cth)
Evidence Act 1995
Cases Cited: Cameron v R [2002] HCA 6; 209 CLR 339
Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36
Lowe v R [1984] HCA 46; 154 CLR 606
Okafor v R [2007] NSWCCA 147
Onuorah v R [2009] NSWCCA 238; 76 NSWLR 1
Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301
R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451
R v Hammoud [2002] NSWCAA 254; 118 A Crim R 66
R v Thomson, R v Houlton (2000) NSWCAA 309; 49 NSWLR
Rees v R [2012] NSWCCA 47
Regina v Barrientos [1999] NSWCCA 1
Category: Principal judgment
Parties: Thomas Ty Phu Lee - Applicant
Regina - Respondent Crown (Commonwealth)
Representation: Counsel:
B Stratton QC/G Niven - Applicant
L Crowley - Respondent Crown
Solicitors:
Philip Sim & Associates - Applicant
Commonwealth Director of Public Prosecutions - Respondent

File Number(s): 2009/10895
Decision under appeal

Date of Decision:

2010-12-14 00:00:00

Before:

Latham J

File Number(s):

2009/10895

Judgment

HOEBEN JA:

Offence and sentence

On 9 July 2010 the applicant was arraigned before Latham J in the Supreme Court of New South Wales on an indictment charging the following counts:

Count 1 - Conspiracy to deal with money, being to the value of $1 million or more, intending it would become an instrument of crime contrary to sections 11.5(1) and 403(1) of the Criminal Code 1995 (Cth). The maximum penalty for count 1 was imprisonment for 25 years and/or a fine of $165,000.

Count 2 - Conspiracy to import prohibited imports, being not less than a trafficable quantity of heroin, contrary to s233B(1)(a)(iii) of the Customs Act 1901 (Cth) and s11.5(1) of the Criminal Code 1995 (Cth). The maximum penalty for count 2 was imprisonment for 25 years and/or a fine $550,000.

Count 3 - Conspiracy to traffic in a marketable quantity of controlled drugs, heroin and methamphetamine, contrary to s11.5(1) and 302.3(1) of the Criminal Code 1995 (Cth). The maximum penalty for count 3 was imprisonment for 25 years and/or a fine of $550,000.

Thereafter the applicant was tried upon the…

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 [2012] NSWCCA 123
Case: [2012] NSWCCA 123
Decision Date: 08 June 2012

CaseChat Overview and Summary

Lee appealed against his sentence, imposed following his conviction for multiple drug-related offences. The nature of the dispute centred on the adequacy of the sentence in relation to his role in the conspiracy, the application of the parity principle, the consideration of his good character, and the discount for his plea of guilty. The appeal was heard by the court of appeal, which was tasked with determining whether the sentence was appropriate and whether any errors in the sentencing process warranted a reduction in the penalty.

The court was required to decide several key legal issues. First, it needed to assess whether the sentencing judge had given adequate effect to the role of the applicant in the conspiracy. This involved examining the applicant's involvement and influence within the criminal enterprise. Second, the court had to consider whether the parity principle was appropriately applied in sentencing. The principle of parity requires that similar offenders be sentenced similarly. Third, the court examined whether the applicant's good character was appropriately dealt with by the sentencing judge. Fourth, the court assessed whether the discount for the applicant's plea of guilty was appropriately applied, considering all relevant factors. Finally, the court had to consider the need to take into account the prospects for the applicant's rehabilitation.

In its reasoning, the court found that the sentencing judge had not given adequate effect to the applicant's role in the conspiracy, which was significant. The court also found that the parity principle was not appropriately applied, as the sentence was not in line with similar cases. Furthermore, the court determined that the applicant's good character was not appropriately dealt with by the sentencing judge. However, the court found that the discount for the plea of guilty was appropriately applied. The court concluded that the prospects for the applicant's rehabilitation should have been more thoroughly considered. As a result, the court varied the sentence, reducing the overall penalty to reflect these findings.

The final orders of the court included a reduction in the sentence imposed on the applicant, taking into account the factors discussed in the court's reasoning. The court's decision underscores the importance of properly considering an offender's role in a conspiracy, the application of the parity principle, the appropriate consideration of good character, and the need to assess prospects for rehabilitation when determining an appropriate sentence.

Orders