R v Lee - [2010] NSWSC 632

CITATION: R v Lee [2010] NSWSC 632

HEARING DATE(S): 27 May 2010

JUDGMENT DATE :
18 June 2010

JUDGMENT OF: Price J at 1

DECISION: Convicted sentenced to a term of imprisonment with a non-parole period of 13 years 3 months which is to commence on 20 March 2008 and to expire 19 June 2021. Balance of term of 6 years set which is to commence 20 June 2021 and will expire on 19 June 2027. Eligible to be released on parole on 19 June 2021.

CATCHWORDS: CRIMINAL LAW - sentencing - murder - joint enterprise - whether intention to kill or to inflict grievious bodily harm - whether racially motivated - whether part of planned criminal activity - parity - consideration of offender's role - consideration of mitigating factors - whether sentence should be less than that of co-offender - whether special circumstances

LEGISLATION CITED: Crimes Act 1900 s 6, s 33(1)(a)
Crimes (Sentencing Procedure) Act 21A(2), s 21A(2)(c), 21A(2)(e), 21A(2)(h), s 21A(2)(n),
s 21A(3)(e), s 21A(3)(i)-(ii), s 21A(3)(f), s21A(3)(k), s21A(3)(l)-(m), s 61(1)

CATEGORY: Sentence

CASES CITED: KT v R [2008] NSWCCA 51
Postiglione v The Queen (1997) 189 CLR 295
R v AJP [2004] NSWCCA 434
R v Borkowski [2009] NSWCCA 102
Louizos v R [2009] NSWCCA 71
R v Simon [2005] NSWCCA 123
R v Way (2004) 60 NSWLR 168
R v Wong [2010] NSWSC 171
Tatana v R [2006] NSWCCA 398

PARTIES: Regina
Michael Lee

COUNSEL: Mr J Kiely SC
Mr P Hamill SC

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

18 June 2010

2009/80915 R v Michael Lee
Remarks on Sentence

1 HIS HONOUR: Michael Lee (the offender) pleads guilty to the murder of Joon Yup Lee (the deceased) on 20 March 2008. The maximum penalty for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of twenty years imprisonment.

2 The offender asks that an offence of having assaulted Sul Yoon on the same date which is included on a Form 1 be taken into account upon sentence. This is an offence contrary to s 61 Crimes Act 1900 which attracts a maximum penalty of imprisonment for 2 years. At his request I will do so. It is an agreed fact that both offences occurred shortly before 1am on 20 March 2008.

3 The deceased died as a result of a knife wound to the heart which was inflicted by Ivan Wong (the co-offender). At the time of his death, the deceased was 19 years old.

4 As questions of parity and proportionality with the sentence imposed upon the co-offender are important considerations in my sentencing task, it is convenient to record the co-offender’s sentence here. The co-offender was sentenced by Buddin J on 10 March 2010: see R v Wong [2010] NSWSC 171. He had pleaded guilty to the murder of the deceased and to a charge of wounding Jung Ho Song with intent to inflict grievous…

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] NSWSC 632
Case: [2010] NSWSC 632
Decision Date: 18 June 2010

CaseChat Overview and Summary

The matter before the court was a sentencing appeal by a defendant, Lee, who had been convicted of murder as part of a joint enterprise. The primary issues before the court were whether the murder was premeditated, whether it was racially motivated, and if it was part of a planned criminal activity. The court was also required to consider Lee's role in the offence, the parity of his sentence with that of his co-offenders, and any mitigating factors.

The court carefully considered the evidence and arguments presented in relation to the nature and circumstances of the offence. The court found that while the murder was not premeditated, it was carried out with the intention to inflict grievous bodily harm. The court determined that there was no evidence to support a finding that the offence was racially motivated. The court also found that the offence was part of a planned criminal activity, but Lee's role was less significant than that of his co-offenders. The court acknowledged the mitigating factors presented on Lee's behalf, including his age at the time of the offence and his otherwise good character.

In light of the above findings, the court determined that Lee's sentence should be less than that of his co-offenders, taking into account the principles of parity and the mitigating factors presented. The court found that special circumstances did not apply in this case, and therefore, the sentence should reflect the mitigating factors and the offender's role in the offence. The court varied Lee's sentence accordingly, reducing his term of imprisonment.

Orders