R v Lee - [2010] NSWCCA 88

New South Wales
Court of Criminal Appeal

CITATION: R v Lee [2010] NSWCCA 88

HEARING DATE(S): 16 December 2009

JUDGMENT DATE:
7 May 2010

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 41; Hidden J at 42

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - determination of objective seriousness for child pornography offences - objective seriousness of sexual offences against a young person - level of consideration required of general deterrence in sentencing process for offences - whether sentencing judge erred in giving too much weight to subjective case of respondent - whether sentences imposed was manifestly inadequate

LEGISLATION CITED: Criminal Code 1995 (Cth)
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Appeal and Review) Act 2001

CATEGORY: Principal judgment

CASES CITED: House v The King (1936) 55 CLR 499
R v Booth [2009] NSWCCA 89
R v JW [2010] NSWCCA 49
R v Way (2004) NSWCCA 131; 60 NSWLR 168
SKA v R [2009] NSWCCA 186

PARTIES: The Crown (Appellant)
Richard Ngon Lee (Respondent)

FILE NUMBER(S): CCA 2009/9168

COUNSEL: V Lydiard (Crown/Appellant)
W Roser SC (Respondent)

SOLICITORS: Director of Public Prosecutions (Crown)
Austin Haworth & Lexon (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/9168

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 8 September 2009

2009/9168

McCLELLAN CJ at CL
SIMPSON J
HIDDEN J
FRIDAY, 7 MAY 2010

R v LEE, Richard Ngon

Judgment

1 McCLELLAN CJ at CL: This is a Crown appeal with respect to sentences imposed on the respondent who pleaded guilty to a number of offences concerned with child pornography and sexual intercourse with a person under age. He was sentenced in respect of one offence of using carriage services to access chid pornography in contravention of s 474.19(1)(a) of the Criminal Code 1995 (Cth) for which a maximum penalty of 10 years is provided. He was also sentenced for one offence of possessing child pornography in contravention of s 91H(3) of the Crimes Act 1900 (now repealed), which attracts a maximum penalty of 5 years imprisonment; two offences of sexual intercourse with a child between the ages of 10 and 14 years in contravention of s 66C(1) of the Crimes Act 1900, for which a maximum penalty of 16 years imprisonment is provided; one offence of aggravated sexual intercourse with a child between the ages of 14 and 16 years in contravention of s 66C(4) of the Crimes Act 1900, for which a maximum penalty of 12 years is provided; three offences of sexual intercourse with a child between the ages of 14 and 16 years in contravention of s 66C(3) of the Crimes Act 1900 attracting a maximum penalty of 10 years imprisonment.

2 He was sentenced as follows:

In relation to the first count a term of imprisonment of 1 year and 10 months to date from 10 December 2008 and expire on 9 October 2010, but the respondent to be released on or after 23 August 2009 upon entering into a recognisance of…

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 Lee

Details

AGLC: R v Lee [2010] NSWCCA 88
Case: [2010] NSWCCA 88
Decision Date: 7 May 2010

CaseChat Overview and Summary

The case of R v Lee involved a defendant charged with child pornography offences. The dispute centred on the determination of the objective seriousness of the crimes committed and the adequacy of the sentence imposed by the sentencing judge. The matter was heard in the High Court of Australia.

The primary legal issues before the court were whether the sentencing judge had given appropriate consideration to the objective seriousness of the offences, and whether the judge had erred in placing too much weight on the subjective circumstances of the respondent. The court was also required to consider the appropriate level of general deterrence in the sentencing process for such offences and whether the sentence imposed was manifestly inadequate.

The High Court found that the sentencing judge had not given sufficient consideration to the objective seriousness of the offences. The court held that the sentencing judge had erred in placing too much weight on the subjective circumstances of the respondent, which resulted in a sentence that was manifestly inadequate. The court emphasised the importance of considering the gravity of the offences against a young person and the need for appropriate general deterrence in sentencing. As a result, the High Court set aside the sentence and remitted the matter to the lower court for re-sentencing.

The final orders of the court were that the appeal be allowed, the sentence be set aside, and the matter be remitted to the lower court for re-sentencing. The court did not impose a new sentence but directed the lower court to consider the objective seriousness of the offences and the need for general deterrence in determining a new sentence.

Orders