Lee v The Queen - [2021] NSWCCA 318

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lee v R [2021] NSWCCA 318
Hearing dates: 20 October 2021
Date of orders: 21 December 2021
Decision date: 21 December 2021
Before: Bathurst CJ [1];
Rothman J [6];
Dhanji J [70]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords:
CRIME – Sentence appeal – assessment of respective roles of co-offender – parity – no justifiable sense of grievance – appeal dismissed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Criminal Code Act 1995 (Cth), ss 302.1(1)(b); 302.2(1); 307.5(1)

Cases Cited:
Andrews v Law Society of British Columbia [1989] 1 SCR 143
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
Lowe v the Queen (1984) 154 CLR 606; [1984] HCA 46.
Postiglione v the Queen (1997) 189 CLR 295; [1997] HCA 26,
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Wong v the Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Chang-Hui Lee (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Ramrakha (Applicant)
A Williams (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2015/279089
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

01 May 2020

Before:

Jeffreys DCJ

File Number(s):

2015/279089

Judgment

BATHURST CJ: I agree with the orders proposed by Rothman J and subject to what I have written below, with his Honour’s reasons.
Ground 1 of the grounds of appeal contends that in assessing the applicant’s role in the offences, the sentencing judge failed to take into account that the applicant was exposed to the risk of investigative attention in a way that the co-accused was generally not.
It is difficult to see what was sought to be encompassed by this ground which was not encompassed in ground 2 (the parity ground). It does not seem to me that the exposure to the risk of investigative attention would generally be seen either as an aggravating or a mitigating factor in determining the objective seriousness of the offence. Nor would it seem to be relevant to the applicant’s moral culpability.
In the absence of any ground of appeal claiming that the sentence was manifestly excessive or for that matter, that his Honour erred in determining the objective seriousness of the offence, it would seem only to go to the proposition that the applicant played a subordinate role to his co-offender, Mr Wei-Lun Wang. However, the sentencing judge took this into account in imposing different aggregate (and indicative) sentences on each of the offenders. For the reasons given by Rothman J I am of the view that the difference is not so insubstantial as to give rise to a justifiable sense of grievance on the part…

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 [2021] NSWCCA 318
Case: [2021] NSWCCA 318
Decision Date: 21 December 2021

CaseChat Overview and Summary

The appeal in Lee v The Queen was brought by the defendant against the sentence imposed by the lower court. The defendant had been convicted for his role in a serious crime. The High Court of Australia was tasked with reviewing the sentence on appeal, considering the arguments regarding the disparity between the sentences of co-offenders and the adequacy of the justification for the sentence. The defendant argued that the sentence was excessively severe compared to the sentence given to his co-offender and that there was no justifiable sense of grievance that warranted such a severe punishment.

The central legal issues in the appeal were the assessment of the respective roles of the co-offenders and the appropriateness of the sentence imposed by the lower court. The defendant contended that the lower court had failed to adequately consider the differences in their roles, leading to a disproportionate sentence. Additionally, the defendant argued that the lower court had not adequately justified the severity of the sentence, particularly in the absence of a justifiable sense of grievance. The court had to determine whether the lower court had erred in its assessment of the roles and in its sentencing decision.

The High Court of Australia, in dismissing the appeal, found that the lower court had appropriately assessed the respective roles of the co-offenders and had adequately justified the severity of the sentence. The court held that the lower court's assessment of the roles was supported by the evidence and that there was a justifiable sense of grievance, warranting the severity of the sentence. The court further found that the lower court had considered all relevant factors and had not erred in its sentencing decision. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders