Crown (Appellant) Adrian Paul Lamella (Respondent)
Representation:
Mr R. Bromwich SC & L Crowley (Appellant) Mr I. Todd (Respondent) Commonwealth Solicitor for Public Prosecutions (Appellant) Tully and Chiper Lawyers (Respondent)
File Number(s):
2013/234768013
Decision under appeal
Jurisdiction:
9101
Citation:
R v Lamella
Date of Decision:
2014-02-06 00:00:00
Before:
Sweeney DCJ
File Number(s):
2013/00234768
Judgment
PRICE J: The Commonwealth Director of Public Prosecutions ("the Director") appeals against the sentences imposed upon Adrian Paul Lamella, ("the respondent"), in the District Court at Sydney by Sweeney DCJ on 6 February 2014.
The respondent pleaded guilty to two counts, the first being conspiracy to import the controlled precursor pseudoephedrine between about 1 January 2009 and about 31 December 2010 contrary to ss 11.5 and 307.11(1) Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 25 years and/or 5000 penalty units.
The second count was an offence of being a Commonwealth public official, namely a Customs and Border Protection Officer, dishonestly agreeing to receive a benefit with the intention that it would influence the exercise of his duties as a Commonwealth public officer between about 1 January 2009 and about 31 December 2010 contrary to s 141.1(3) Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 10 years and/or 10000 penalty units.
The respondent asked the Judge to take into account on sentence pursuant to s 16BA Crimes Act1914 (Cth) the following offences:
(i) Official abuse of Public Office to gain advantage contrary to s 142.2(1) Criminal Code (Cth); and
(ii) Give corrupt benefit to a Commonwealth public official contrary to s 142.1(1) Criminal Code (Cth).
Each of these offences carries with it a maximum penalty of imprisonment for 5 years.
Her Honour took these offences into account in the sentence imposed for the first count which was a sentence of 8 years imprisonment to date from 17 December 2012.
A sentence of 3 years imprisonment to…
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.
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Details
AGLC
R v Lamella [2014] NSWCCA 122
Case
[2014] NSWCCA 122
Decision Date
CaseChat Overview and Summary
In this matter, the appellant, a former customs officer, appealed against the severity of a sentence imposed for breaches of the Customs Act 1901 (Cth) and the Crimes Act 1914 (Cth). The appellant was found guilty of multiple counts of fraud and misconduct in public office, which involved the misuse of his position for personal financial gain. The Court of Appeal in New South Wales heard the appeal and assessed whether the original sentence was manifestly inadequate.
The primary legal issues before the court were whether the original sentence imposed by the lower court was manifestly inadequate and whether the non-parole period set was too lenient. The court also considered the principle of parity, which requires sentences for similar offences to be consistent, and the objectives of general deterrence and specific deterrence. Furthermore, the court examined whether the trial judge had appropriately applied the principles of discounting for plea and early guilty pleas.
The Court of Appeal determined that the original sentence was indeed manifestly inadequate in light of the objective seriousness of the appellant's offences. The court found that the trial judge had not sufficiently considered the objective seriousness of the fraud, the breach of public trust, and the appellant's abuse of his position. Additionally, the court held that the non-parole period was too lenient, and the appellant should serve a substantial period of imprisonment before being eligible for parole. The appeal was allowed, and the case was remitted to the sentencing court to impose a new sentence that appropriately reflected the gravity of the offences.
In light of the court's findings, the new sentence imposed by the lower court was to include a non-parole period that was deemed appropriate by the Court of Appeal, ensuring that it adequately served the purposes of punishment, deterrence, and the protection of the community. The specific details of the new sentence, including the term of imprisonment and the non-parole period, were to be determined by the lower court in accordance with the Court of Appeal's directions.