Lehn v The Queen

Case [2016] NSWCCA 255


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Lehn v R [2016] NSWCCA 255
Hearing dates:20 May 2016
Date of orders: 18 November 2016
Decision date: 18 November 2016
Before: 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
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 22, 33, 44
Crimes Act 1900 (NSW), ss 52A, 52AB, 154F
Criminal Appeal Act 1912 (NSW), s 6
Drug Misuse and Trafficking Act 1985 (NSW), s 10
Road Transport Act 2013 (NSW), s 206A
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Alpha v R [2015] NSWCCA 225
Application by Darush Majid pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2016] NSWSC 561
Arsiotis v R [2015] NSWCCA 275
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Bombardieri v R [2010] NSWCCA 161; (2010) 203 A Crim R 89
Carroll v R [2015] NSWCCA 219
Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Daniels v R [2016] NSWCCA 35
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Haines v R [2016] NSWCCA 90
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hutchen v R [2015] NSWCCA 101
Kentwell v The Queen…

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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.

Orders

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Background

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