Lees v R

Case [2019] NSWCCA 65 29 March 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lees v R [2019] NSWCCA 65
Hearing dates: 20 March 2019
Decision date: 29 March 2019
Before: Bathurst CJ at [1];
Hoeben CJ at CL at [2];
Price J at [106]
Decision:
(1)   Leave to appeal against sentence is granted.
(2)   The appeal against sentence is allowed.
(3)   The sentence imposed by Marien SC ADCJ on 18 July 2017 is quashed.
(4)   In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 9 years, commencing 20 October 2015 and expiring 19 October 2024, with a balance of term of 3 years, expiring 19 October 2027.

Catchwords: CRIMINAL LAW – sentence appeal – manslaughter – applicant drove motor vehicle into deceased – whether sentencing judge erred in his assessment of the objective seriousness of the offence – whether sentence was manifestly excessive – applicant and deceased in long term relationship – applicant followed deceased in car after argument – background of domestic violence – whether fact of domestic violence was relevant to offence – effect of applicant’s mental condition on sentence – no basis for interfering with judge’s finding of objective seriousness – insufficient weight given to applicant’s psychiatric and psychological difficulties – insufficient consideration given to moral culpability – sentence manifestly excessive – need to resentence.
Legislation Cited: Crimes Act 1900 (NSW) – s 18(1)(b)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) – s 14(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 9, 10A, 21A(5AA)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111
Baladjam v R [2018] NSWCCA 304
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Newman v R [2018] NSWCCA 208
Ngati v R [2018] NSWCCA 32
R v Farrar (NSWCCA, unreported, 6 May 1991)
R v Gordon (No 8) [2017] NSWSC 574
R v Pham [2015] HCA 39; 256 CLR
R v Robert Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Stevens (NSWCCA, unreported, 15 August 1993)
R v Tepania [2018] NSWCCA 247
Reubin Gary Young v R [2009] NSWCCA 298
Vanderventer v R [2013] NSWCCA 33
Category: Principal judgment
Parties: Jacklyn Diann Lees – Applicant
Regina – Respondent Crown
Representation:
Counsel:
J Manuell SC/S Palaniappan – Applicant
L Babb SC/B Baker – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/307741
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 July 2017

Before:

Marien SC ADCJ

File Number(s):

2015/307741

JUDGMENT

BATHURST CJ: I have had the advantage of reading the judgment of…

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 Lees v R

Details

AGLC: Lees v R [2019] NSWCCA 65
Case: [2019] NSWCCA 65
Decision Date: 29 March 2019

CaseChat Overview and Summary

The case of Lees v R involved an appeal against a sentence for manslaughter. The applicant, Lees, had driven his motor vehicle into the deceased following a domestic dispute between the two. The deceased was in a long-term relationship with Lees, and the incident occurred after Lees followed the deceased in his car following an argument. The background included a history of domestic violence between the two, which the applicant argued should be considered relevant to the offence. The applicant also contended that his mental condition should have been taken into account in the sentencing process.

The court was required to determine whether the sentencing judge had erred in his assessment of the objective seriousness of the offence, and whether the sentence imposed was manifestly excessive. The applicant argued that the judge had not given sufficient weight to the applicant’s psychiatric and psychological difficulties, and that insufficient consideration was given to the applicant’s moral culpability. The court also needed to consider the relevance of the domestic violence background to the offence and the appropriate weight to be given to these circumstances in the sentencing process.

The court found that there was no basis for interfering with the judge’s finding of the objective seriousness of the offence. However, the court held that insufficient weight had been given to the applicant’s psychiatric and psychological difficulties, and that insufficient consideration had been given to the applicant’s moral culpability. The court concluded that the sentence was manifestly excessive and that it was necessary to resentence the applicant. The appeal was thus allowed, and the matter was remitted for resentencing.

The final orders of the court were that the appeal be allowed, the conviction be upheld, and the matter be remitted to the sentencing judge for resentencing. The court emphasised the need for the resentencing judge to give appropriate weight to the applicant’s psychiatric and psychological difficulties, and to the applicant’s moral culpability, in determining the appropriate sentence.

Orders