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Lee v The Queen

Lee v The Queen

Case [2018] VSCA 63 21 March 2018

Appeal

Sentencing

Unlawful and dangerous act manslaughter

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0254

ANDREW WILLIAM LEE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 February 2018
DATE OF JUDGMENT:	21 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 63
JUDGMENT APPEALED FROM:	R v Lee [2017] VSC 678 (Lasry J)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO SECTION 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Unlawful and dangerous act manslaughter – Applicant sentenced to 8 years’ imprisonment with non-parole period of 5 years – Death caused by single punch to head – Applicant had no prior convictions – Judge found community did not need to be protected from applicant – Whether judge erred in stating that specific deterrence was ‘important’ – Whether judge erred in not finding the offending was in ‘lowest possible category’ of seriousness – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Morrissey SC	Garde-Wilson Lawyers
For the Respondent	Mr B Kissane QC with Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA:

Introduction and summary

On 8 September 2017, the applicant pleaded guilty to one charge of manslaughter and, on 10 November 2017, he was sentenced to 8 years’ imprisonment with a non-parole period of 5 years.[1] The maximum penalty for manslaughter is 20 years’ imprisonment.[2]
[1]R v Lee [2017] VSC 678 (‘Sentencing remarks’).
[2]Crimes Act 1958 s 5.

The offending arose out of an altercation that broke out outside the Windy Mile Hotel in Diamond Creek, where the applicant and the victim were patrons. During the altercation, the applicant struck the victim once to the right side of his head, with a closed fist. The victim died approximately 21 hours later from an acute extradural haemorrhage which was caused by the applicant’s blow.

The applicant seeks leave to appeal against sentence on three proposed grounds: first, the judge erred in failing to find that the offence was in the lowest possible category of seriousness; secondly, the judge erred in finding that specific deterrence was an important sentencing consideration; and thirdly, the sentence is manifestly excessive.

For the reasons that follow, leave to appeal will be refused.

Circumstances of offending and procedural history

On the evening of Saturday 16 April 2016, the applicant and the victim separately attended the Windy Mile Hotel. The victim, 19-year-old Patrick Cronin, arrived there at 9:45 pm with five friends.

The applicant arrived at the hotel with some friends at 10:21 pm. The applicant and the victim did not know each other and until the altercation, spent the evening in separate areas of the hotel.

At about 11:00 pm, an altercation broke out on the footpath at the front of the hotel, involving a large group of patrons primarily from two different sports clubs. CCTV footage of the interior and exterior of the hotel shows…

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 The Queen

Details

AGLC: Lee v The Queen [2018] VSCA 63
Case: [2018] VSCA 63
Decision Date: 21 March 2018

CaseChat Overview and Summary

The case of Lee v The Queen involved an appeal against sentence in the High Court of Australia. The applicant had been found guilty of unlawful and dangerous act manslaughter for causing the death of another person by delivering a single punch to the head. The trial judge sentenced the applicant to 8 years' imprisonment with a non-parole period of 5 years. The applicant appealed the sentence, arguing that the judge had erred in several respects, including in considering specific deterrence, in categorising the seriousness of the offence, and in determining the overall excessiveness of the sentence.

The central legal issues before the court were whether the trial judge had erred in his consideration of specific deterrence and the seriousness of the offending, and if the sentence imposed was manifestly excessive. The applicant argued that the trial judge had given undue weight to specific deterrence and had failed to appropriately categorise the seriousness of the offence as being in the lowest possible category. Additionally, the applicant contended that the sentence was manifestly excessive given the absence of prior convictions and the judge's acknowledgment that the community did not need protection from the applicant.

The High Court held that the trial judge had not erred in his assessment of specific deterrence, nor in categorising the seriousness of the offending. The court found that the judge had appropriately balanced the various sentencing considerations and had not given undue weight to any one factor. Furthermore, the court determined that the sentence was not manifestly excessive, taking into account the gravity of the offence and the need to deter the applicant and others from engaging in similar conduct. Consequently, the appeal was dismissed, and leave to appeal was refused.

No specific orders were made by the court beyond the refusal of leave to appeal and the dismissal of the appeal.

Orders