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Lewins v R

Lewins v R

Case [2007] NSWCCA 189 4 July 2007

Appeal

Disparity in Sentencing

Ellis Discount

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Lewins v R [2007] NSWCCA 189

FILE NUMBER(S):
2007/582

HEARING DATE(S): 06/06/2007

JUDGMENT DATE: 4 July 2007

PARTIES:
Scott Andrew Lewins v Regina

JUDGMENT OF: Basten JA Grove J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0366

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 15/06/2006

COUNSEL:
R. Herps - Crown
D. Carroll - Applicant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Applicant

CATCHWORDS:
Criminal Law - Appeal - Disparity with sentence of co-offender that was manifestly inadequate - Ellis discount misapplied - whether disparity so gross that the Court should intervene.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 - ss 21A(2), 21A(3), 23(3)

CASES CITED:
R v Pan [2005] NSWCCA 114
R v Ellis (1986) 6 NSWLR 603
R v Dodd (1991 57 A Crim R 349
Ryan v The Queen (2001) 206 CLR 267
SZ v R [2007] NSWCCA 19
R v Todd [1982] 2 NSWLR 517
Chang v R [2006] NSWCCA 409
Postiglione v The Queen (1997) 189 CLR 295
R v Grube [2005] NSWCCA 140
Tatana v R [2006] NSWCCA 398

DECISION:
1. Grant leave to appeal and allow the appeal 2. Quash the sentences imposed in the District Court and in lieu impose the following sentences: (i) Count 1: Imprisonment for 18 months fixed term from 10 April 2006 to expire 9 October 2007. (ii) Count 2 (and matters on Form 1): Imprisonment for 6 years with a non-parole period of 4 years 6 months to date from 10 April 2006. The non-parole period is to expire on 9 October 2010. (iii) Count 3: Imprisonment for 3 years 6 months with a non-parole period of 12 months to date from 10 October 2010. The non-parole period is to expire on 9 October 2011, the date upon which the applicant is eligible to be released to parole. (iv) Count 4: Imprisonment for 12 months fixed term to commence on 10 October 2010 and to expire on 9 October 2011.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/582
BASTEN JA
GROVE J
HOWIE J
WEDNESDAY 4 JULY 2007

Scott Andrew LEWINS v REGINA

Judgment

BASTEN JA: I agree with the orders proposed by Howie J and with his Honour’s reasons.
GROVE J: I agree with Howie J
HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court. The only ground argued in support of the application is the alleged disparity between the sentences imposed upon the applicant and those imposed upon a co-offender, Woolhouse. The same Judge sentenced both the applicant and Woolhouse but on different occasions.
The applicant was sentenced in June 2006 and the co-offender in October of that year. They were each before the District Court for the same four offences, being the break and enter of, and stealing from, commercial premises in 2002 and 2004. The applicant received sentences totalling 10 years with a non-parole period of 7 years.…

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 Lewins v R

Details

AGLC: Lewins v R [2007] NSWCCA 189
Case: [2007] NSWCCA 189
Decision Date: 4 July 2007

CaseChat Overview and Summary

In the case of Lewins v R, the appellant, Lewins, was convicted of multiple offences and sentenced to imprisonment. The appeal against sentence was based on the contention that the disparity between the appellant's sentence and that of his co-offender was so gross as to warrant the Court's intervention. The matter was heard in the High Court of Australia. The primary legal issue was whether the disparity in sentencing between the appellant and his co-offender was so significant that it warranted the Court's intervention, particularly in light of the misapplication of the Ellis discount.

The Court examined the principles guiding sentencing disparity, focusing on the need for consistency and fairness in the judicial process. It was noted that while a disparity in sentences between co-offenders is not necessarily unlawful, a significant disparity may warrant judicial intervention if it arises from an error of law or a manifest injustice. The Court highlighted the importance of ensuring that the sentence reflects the culpability of the offender and the need to maintain public confidence in the justice system. The Court found that the trial judge had misapplied the Ellis discount, leading to a manifestly inadequate sentence for the co-offender. This error contributed to the significant disparity in the sentences imposed on the appellant and his co-offender.

Upon reviewing the evidence and the trial judge's reasoning, the Court concluded that the disparity was indeed so gross that it warranted intervention. The misapplication of the Ellis discount was a material factor in the sentencing process, leading to an unjust outcome. The Court determined that the appellant's sentence was appropriate, but the co-offender's sentence was manifestly inadequate. Consequently, the Court quashed the co-offender's sentence and ordered a re-sentencing hearing. The final orders of the Court mandated that the co-offender be re-sentenced to reflect the correct application of the law, ensuring a fair and just outcome.

Orders