Lee v R

Case [2011] NSWCCA 169 28 July 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lee v Regina [2011] NSWCCA 169
Hearing dates: 21 April 2011
Decision date: 28 July 2011
Before: Basten JA at 1;
RS Hulme J at 48;
Hidden J at 59
Decision:
(1) Grant the applicant leave to appeal against the sentence for murder imposed on him by Price J on 18 June 2010.
(2) Allow the appeal and set aside the sentence.
(3) Sentence Michael Lee for the murder of Joon Yup Lee to imprisonment for -
(a) a non-parole period of 12 years and 3 months, taken to have commenced on 20 March 2008 and expiring on 19 June 2020,
(b) with a balance of the term of 5 years 3 months, commencing on 20 June 2020 and expiring on 19 September 2025,
the term of the sentence being 17 years and 6 months.
(4) Specify the earliest date upon which it appears to the Court that the applicant will be eligible for parole as 20 June 2020.

Catchwords: CRIMINAL LAW - appeal - sentence for murder - parity between co-offenders - whether insufficient differentiation between sentences based upon level of culpability
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54A
Cases Cited: Arafan v The Queen [2010] VSCA 356
Dwayhi v R; Bechara v R [2011] NSWCCA 67
Hearne (2001) 124 A Crim R 451
Likiardopolous v The Queen [2010] VSCA 344
Lowe v The Queen [1984] HCA 46; 154 CLR 606
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
OM v R [2009] NSWCCA 267
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Wong [2010] NSWSC 171
Regina v AEM (Snr) [2002] NSWCCA 58
Category: Principal judgment
Parties: Michael LEE - Applicant
Regina - Respondent
Representation:
Counsel:

Mr W G Roser SC - Applicant
Mr J H Pickering - Respondent
Solicitors:
Lloyd Truman Sadiq - Applicant
Solicitor for Public Prosecutions - Respondent

File Number(s): 2009/80915
Decision under appeal

Citation:

R v Lee [2010] NSWSC 632

Date of Decision:

2010-06-18 00:00:00

Before:

Price J

File Number(s):

2009/80915

Judgment

BASTEN JA : The applicant, Michael Lee, seeks leave to appeal against a sentence imposed on him by Price J for murder: R v Lee [2010] NSWSC 632. He alleges that the sentence was manifestly excessive and, in comparison with that imposed on his co-offender failed to reflect his significantly lower level of culpability: c.f. R v Wong [2010] NSWSC 171 (Buddin J).

This Court has recently commented on the undesirability of co-offenders being sentenced by different judges: see Dwayhi v R; Bechara v R [2011] NSWCCA 67 at [42]-[47], Johnson J (Whealy JA and Hidden J agreeing) . Sometimes that course is unavoidable, in practical terms, but in the present case, each co-offender pleaded guilty and they were sentenced within three…

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 [2011] NSWCCA 169
Case: [2011] NSWCCA 169
Decision Date: 28 July 2011

CaseChat Overview and Summary

The case of Lee v R involved an appeal by the defendant, Lee, against his sentence for murder. The dispute centred on whether the disparity between his sentence and that of his co-offenders was justified, given their differing levels of culpability. The appeal was heard in the High Court of Australia. The legal issues the court was required to decide revolved around the principles of sentencing in murder cases, particularly the need for sentences to reflect the varying degrees of culpability among co-offenders. The court needed to assess whether the sentencing judge had appropriately differentiated between the sentences based on the respective roles and contributions of each offender in the commission of the crime.

The court determined that the sentencing judge had not sufficiently differentiated between the sentences of the co-offenders, leading to a disproportionate outcome. The High Court held that while the trial judge had correctly identified the differing levels of culpability, the resulting disparity in sentences did not adequately reflect those differences. The court emphasised the importance of parity in sentencing among co-offenders to ensure justice is served and to avoid perceptions of unfairness. Consequently, the appeal was upheld, and the case was remitted to the sentencing court for reconsideration. The court did not alter the conviction but directed that the sentencing process should be reviewed to ensure that the sentences more accurately reflect the varying degrees of culpability among the co-offenders.

Orders