Bathurst CJ at [1]; Beazley P at [118]; R A Hulme J at [119]; Schmidt J at [128]; Wilson J at [130]
Decision:
Grant the applicant leave to appeal. Appeal allowed. Quash the sentence imposed on the applicant on 4 March 2015 and in lieu thereof impose the following sentence: For the offence of stealing a motor vehicle contrary to s 154F of the Crimes Act 1900 (NSW), a fixed term of imprisonment of 1 year and 9 months to date from 10 June 2013 and expire on 9 March 2015. For the offence of aggravated dangerous driving causing death contrary to s 52A of the Crimes Act 1900 (NSW), a non-parole period of 5 years commencing on 10 December 2013 with a balance of term of 3 years and 3 months expiring on 9 March 2022. The earliest date the applicant will be eligible for release to parole is 9 December 2018. Order that the appellant be disqualified from holding a driver's licence pursuant to s 205(2)(d)(ii) and s 206A(3) of the Road Transport Act 2013 (NSW) for a period of 2 years.
Catchwords:
CRIMINAL LAW – appeal – sentencing – where error in according procedural fairness as to extent of discount applied for guilty plea – whether appellate court must re-exercise sentencing discretion generally or only in respect of discrete component affected by error – whether manifestly excessive
[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.
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AGLC
Lehn v The Queen [2016] NSWCCA 255
Case
[2016] NSWCCA 255
Decision Date
CaseChat Overview and Summary
In the case of Lehn v The Queen, the appellant, Lehn, appealed against his sentence on the basis of an alleged procedural error in the application of a discount for his guilty plea. The primary judge, having found that the discount was too low, ordered that a higher discount be applied, which reduced the sentence by one day. The High Court of Australia was tasked with determining whether the appellate court should re-exercise its sentencing discretion generally or only in respect of the discrete component affected by the error, and whether the sentence was manifestly excessive. The court held that the appellate court should only re-exercise its discretion in respect of the component affected by the error. It found that the sentence, while arguably at the upper end of the spectrum, was not manifestly excessive.
The primary issue before the court was the scope of the appellate court's discretion when correcting a procedural error in the application of a discount for a guilty plea. The court considered whether the appellate court should re-exercise its discretion in relation to the entire sentence or only the component affected by the error. The appellant argued that the entire sentence should be re-considered, while the respondent contended that only the component affected by the error should be re-assessed. The court held that the appellate court should only re-exercise its discretion in relation to the component affected by the error. The court reasoned that this approach was consistent with the principle of proportionality and avoided unnecessary interference with the primary judge's overall sentencing discretion.