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Lewis v R

Lewis v R

Case [2021] NSWCCA 108 28 May 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Lewis v R [2021] NSWCCA 108
Hearing dates: 30 April 2021
Date of orders: 28 May 2021
Decision date: 28 May 2021
Before: Hoeben CJ at CL [1]
Bellew J at [2]
N Adams J at [64]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the sentencing judge erred in his findings as to the applicant’s involvement in the offending – Whether the sentencing judge was restricted to taking into account those acts of the applicant which centred upon the actual manufacturing process – Sentencing judge entitled to have regard to all acts undertaken in pursuit of the joint criminal enterprise when assessing the applicant’s role
CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the applicant had a justifiable sense of grievance having regard to the sentence imposed on his co-offender – Where co-offender had pleaded guilty to the same offence in circumstances where the applicant had elected to go to trial – Where there were a series of factors which distinguished the respective subjective cases including significant injuries sustained by the co-offender which amounted to extra-curial punishment – Significance of those injuries not reduced by the fact that they were sustained in the course of the offending – No unjustified disparity in the respective sentences imposed – No justifiable sense of grievance established
CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether sentence manifestly excessive – Significant role played by applicant – Unremarkable subjective case – Serious offending – Need for general deterrence – Sentence not manifestly excessive

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Alameddine v R [2006] NSWCCA 317
Cashel v R [2018] NSWCCA 292
Christodoulou v R [2008] NSWCCA 102
Gill v R [2010] NSWCCA 236
Goodbun v R [2020] NSWCCA 77
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Li v R [2021] NSWCCA 75
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245
Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593
Tatana v…

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 Lewis v R

Details

AGLC: Lewis v R [2021] NSWCCA 108
Case: [2021] NSWCCA 108
Decision Date: 28 May 2021

CaseChat Overview and Summary

The applicant in this case, Lewis, sought leave to appeal against his sentence for manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise. The appeal centred on whether the sentencing judge erred in his assessment of the applicant’s involvement and whether the sentence was manifestly excessive. The High Court of Australia reviewed the application, considering the legal principles governing sentencing in cases of joint criminal enterprises and the proportionality of the sentence imposed.

The primary legal issues were whether the sentencing judge was correct in considering the applicant’s full involvement in the joint criminal enterprise, not just the specific acts of manufacturing, and whether the sentence was justified given the applicant’s significant role and the need for general deterrence. The court also examined whether the applicant had a justifiable sense of grievance in comparison to his co-offender, who had received a different sentence due to various mitigating factors.

The court found that the sentencing judge was entitled to consider all acts undertaken in pursuit of the joint criminal enterprise when assessing the applicant’s role. The court held that the sentencing judge did not err in his findings and that the sentence was proportionate to the seriousness of the offence and the applicant’s involvement. The court further determined that the applicant had no justifiable sense of grievance as there were significant differences in the circumstances of the co-offender’s case, including injuries sustained during the offending which amounted to extra-curial punishment. The court concluded that the sentence was not manifestly excessive.

The High Court dismissed the application for leave to appeal against the sentence, affirming the lower court’s decision. The applicant’s appeal was rejected on the grounds that the sentencing judge properly considered the full scope of the applicant’s involvement and that the sentence was appropriate given the nature of the offence and the need for general deterrence.

Orders