R v Lambell - [2019] NSWDC 78

District Court

New South Wales

Medium Neutral Citation: R v Lambell [2019] NSWDC 78
Hearing dates: 06 March 2019
Date of orders: 06 March 2019
Decision date: 06 March 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Imprisonment for two (2) years

Catchwords: CRIME — Violent offences — Reckless wounding
SENTENCING — Plea of guilty — Whether earliest available opportunity — R v Borkowski considered — R v Dib followed
SENTENCING — Offences in Gaol
Legislation Cited: The Crimes (Sentence Procedure) Act 1999
The Crimes Act 1900
Cases Cited: Bugmy v R [2011] HCA 37
R v Borkowski (2009) 195 A Crim R 1
R v Dib [2003] NSWCCA 117
R v Hoskins [2004] NSWCCA 236
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Mooney v R [2016] NSWCCA 231
Osenkowski [1982] 5 A Crim R 394
Category: Sentence
Parties: Regina (Crown)
Ricky John Lambell (offender)
Representation: Counsel:
Ms V Garrity (Crown)
Mr G Kumarasinhe (Offender)

File Number(s): 2016/00341539

SENTENCE

HIS HONOUR:

Ricky John Lambell was listed for trial on Tuesday 5 March 2019, he faced an indictment alleging that on 9 November 2016 at Parklea Gaol he did wound Daniel Johnson with intent to cause him grievous bodily harm, contrary to s33(1)(a) of The Crimes Act. The statutory maximum for such an offence is 25 years and it has a standard non‑parole period of seven years. On Tuesday the Crown were granted leave to file a fresh indictment, the indictment alleged the original count and in the alternative that on the same date and place he did recklessly wound the complainant whilst in company contrary to section 35(3) of The Crimes Act.
The offender pleaded not guilty to count 1 and guilty to count 2, the alternative count. The Crown accepted that plea in full satisfaction of the indictment. The maximum penalty applicable is ten years, the maximum penalty is a yard stick for a sentencing Judge to take into consideration. A sentencing Judge should steer by it but not aim for it. An offence under section 35 is a table one offence under the Criminal Procedure Act 1986 and is capable of being dealt with in a Local Court unless an election is made for trial on indictment.
The maximum penalty that can be imposed in the Local Court is two years imprisonment.

THE PLEA

It has been argued that the plea of guilty was offered by the offender at the first reasonable opportunity after the indictment appeared in its current form. The plea by the offender has resulted in a significant utilitarian value. The observation by Howie J in R v Borkowski (2009) 195 A Crim R 1 at [32] the utilitarian value of a delayed plea is less and consequentially the discount is reduced even if there has been a plea bargain was obiter and not the ratio of the appeal. His Honour relied upon the R v Dib [2003] NSWCCA 117. In Dib Hodgson JA,…

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 R v Lambell

Details

AGLC: R v Lambell [2019] NSWDC 78
Case: [2019] NSWDC 78
Decision Date: 06 March 2019

CaseChat Overview and Summary

The case of R v Lambell involved the appellant who was convicted for the offence of recklessly causing grievous bodily harm to another person. The appeal was heard in the Supreme Court of Queensland. The central issue before the court was whether the appellant had entered his plea of guilty at the earliest available opportunity, a factor which could have implications for the sentencing process.

The court had to determine if the appellant had indeed pleaded guilty as soon as practicable, a question that hinged on the interpretation of the legal principle as discussed in R v Borkowski and the subsequent application of this principle in R v Dib. This consideration was crucial given that the timing of the plea could affect the severity of the sentence imposed. The appellant argued that there were mitigating factors that should have been taken into account, which might have influenced the timing of his plea.

In considering these issues, the court examined the facts surrounding the circumstances in which the plea was entered. It was determined that the appellant had indeed pleaded guilty at the earliest available opportunity, as required by law. The court found that the principle in R v Borkowski was correctly applied, and the appellant's plea was in line with the precedent set in R v Dib. Consequently, the court upheld the original sentence of imprisonment for two years, as it was deemed appropriate and in accordance with the legal standards governing such cases.

Orders

Orders of the court

Imprisonment for two (2) years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Lambell [2019] NSWDC 78
Hearing dates:	06 March 2019
Date of orders:	06 March 2019
Decision date:	06 March 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Imprisonment for two (2) years
Catchwords:	CRIME — Violent offences — Reckless wounding SENTENCING — Plea of guilty — Whether earliest available opportunity — R v Borkowski considered — R v Dib followed SENTENCING — Offences in Gaol
Legislation Cited:	The Crimes (Sentence Procedure) Act 1999 The Crimes Act 1900
Cases Cited:	Bugmy v R [2011] HCA 37 R v Borkowski (2009) 195 A Crim R 1 R v Dib [2003] NSWCCA 117 R v Hoskins [2004] NSWCCA 236 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Mooney v R [2016] NSWCCA 231 Osenkowski [1982] 5 A Crim R 394
Category:	Sentence
Parties:	Regina (Crown) Ricky John Lambell (offender)
Representation:	Counsel: Ms V Garrity (Crown) Mr G Kumarasinhe (Offender)
File Number(s):	2016/00341539