R v Lamella

Case [2014] NSWCCA 122


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: R v Lamella [2014] NSWCCA 122
Hearing dates:16 June 2014
Decision date: 10 July 2014
Before: Price J at [1]
Garling J at [90]
Bellew J at [91]
Decision:

Appeal dismissed.

Catchwords: CRIMINAL - Crown appeal on sentence - Federal offences - Customs officer - objective seriousness - parity - general deterrence - non-parole period - application of combined discounts - manifest inadequacy
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: AAT v R [2011] NSWCCA 17
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
DPP (Cth) v El Karhani (1990) 21 NSWLR 370
Green v R [2011] HCA 49 (2011) 244 CLR 462
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Majid v R [2010] NSWCCA 121
SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19
Category:Principal judgment
Parties: 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

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. A sentence of 3 years imprisonment to…

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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.

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