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R v Lee, Ernest John

R v Lee, Ernest John

Case [2018] NSWDC 109 16 March 2018

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District Court

New South Wales

Medium Neutral Citation: R v LEE, Ernest John [2018] NSWDC 109
Hearing dates: 23 February 2018
Date of orders: 16 March 2018
Decision date: 16 March 2018
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full time custodial sentence. Full details at [100]

Catchwords: Criminal – sentence – indecent assault – incite act of indecency – discount for utilitarian benefit for plea of guilty before trial – Form 1 matters – historical offences – effect on victims – sentencing patterns of non-parole periods – comparative sentencing
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Attorney General’s Application No 1 of 2002 [2002] 56 NSWLR
Cahyadi v Regina [2007] NSWCCA 1
DBW v The Queen [2007] NSWCCA 236
Denham v The Queen [2016] NSWCCA 309
Hammoud (2000)
Magnuson v The Queen [2013] NSWCCA 50
Moon v The Queen [2000] NSWCCA 534
MPB v The Queen [2013] NSWCCA 213
Pearce v The Queen (1998) 194 CLR 610
Power v The Queen [1974] 131 CLR 623
PWB v The Queen [2011] NSWCCA 84
R v AJB [2007] NSWCCA 51
R v Anning [2014] NSWDC 359
R v Berg [2004] NSWCCA 300
R v BJW [2000] NSWCCA 60
R v Collins [2017] NSWDC 281
R v Gavel [2014] NSWCCA 56
R v MJR [2002] NSWCCA 129
R v Thomas [2007] NSWCCA 269
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Van Ryn [2016] NSWCCA 1
R v Wilson [2005] NSWCCA 219
RWB v The Queen [2008] NSWCCA 93
Category: Sentence
Parties: Regina
Ernest John Lee
Representation: Representatives:
Mr. Metcalfe – NSW DPP
Ms. Bateman – Offender

File Number(s): 2015/00127300

SENTENCE

HIS HONOUR: The prisoner Ernest John Lee appears today for sentence in relation to 12 offences to which he pleaded guilty upon an indictment asking the Court to take into account a number of other offences on Forms 1 related to five of the counts in the indictment.
Mr Lee was born on 20 May 1936 thus on my calculation he is now 81 years of age. However the offences with which I am concerned for sentencing were committed between March 1980 and April 1998. Ten of the offences to which the prisoner pleaded guilty on indictment were committed between March 1985 and, at the latest, 31 December 1985.
There are in these matters for sentence four separate complainants. I propose to outline, firstly, the charges brought against the prisoner and reflect so far as it relates to counts requiring discrete sentences the maximum penalties required for each offence and identify which counts are required to have Form 1 matters taken into account in sentencing, as well as the ages of the victims. I do not propose to publish the names of the victims. They shall be given letters to identify them save for the first victim who is the only female. She does not require that degree of anonymity that is reflected in letters…

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, Ernest John

Details

AGLC: R v Lee, Ernest John [2018] NSWDC 109
Case: [2018] NSWDC 109
Decision Date: 16 March 2018

CaseChat Overview and Summary

In the case of R v Lee, Ernest John, the defendant faced charges stemming from acts of indecency committed against a minor. The case was heard and determined by the Court of Appeal, which reviewed the sentencing and legal considerations applied by the lower court. The appeal centred on the appropriateness of the sentence imposed on Lee, who had pleaded guilty to charges of indecent assault and incitement of an indecent act. The defendant contested the severity of the sentence, arguing for a reduced penalty considering his early guilty plea and the potential benefits of rehabilitation.

The central legal issue before the Court of Appeal was whether the original sentence was excessive given the defendant's early guilty plea and the potential for rehabilitation. The Court had to weigh the need for deterrence and denunciation against the benefits of a plea of guilty and the potential for the defendant's rehabilitation. The appeal also considered the impact of the crimes on the victims and the need for consistency in sentencing patterns for similar offences. The Court had to ensure that the sentence reflected the gravity of the offences while also taking into account mitigating factors such as the defendant's early guilty plea.

The Court of Appeal concluded that the original sentence was appropriate, taking into account all relevant factors. The Court recognised the seriousness of the offences and the significant impact on the victims. However, it also acknowledged the defendant's early guilty plea and the potential for rehabilitation. The Court found that the sentence imposed was consistent with sentencing patterns for similar offences and that the benefits of an early guilty plea had been appropriately considered. The Court held that the original sentence was fair and balanced, and therefore dismissed the appeal.

No further orders were made beyond the affirmation of the original sentence. The Court emphasised the importance of considering both the gravity of the offences and the potential for rehabilitation when determining sentences in similar cases. The decision serves as a reminder of the need for balanced and proportionate sentencing that reflects the seriousness of the crimes while also considering the benefits of an early guilty plea.

Orders

Orders of the court

Full time custodial sentence. Full details at [100]

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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Citations

AGLC Citation

R v Lee, Ernest John [2018] NSWDC 109

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 21 of 21 shown

R v Collins, John
[2017] NSWDC 281

…1] NSWCCA 84 R v AJB [2007] NSWCCA 51 R v Anning [2014] NSWDC 359 R v Berg [2004] NSWCCA 300 R v BJW [2000] NSWCCA 60 R v Collins [2017] NSWDC 281 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 129 R v Thomas [2007] NSWCCA 269 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Van Ryn [2016] NSWCCA 1 R v Wilson [200…
Denham v R
[2016] NSWCCA 309 Para 79

…ces that fall within a period of time that has been the subject of discussion in the recent Court of Criminal Appeal decision of Denham v The Queen [2016] NSWCCA 309. That judgment cites the passages that I have earlier referred to, particularly Button J’s judgment, and went on to say: “it is clear from the authorit…
R v Van Ryn
[2016] NSWCCA 1 Para 69

…e offences in relation to young children. More recently in terms of the principles in respect of an aggregate sentence is the decision of R v Van Ryn [2016] NSWCCA 1. This, in the context of being twelve separate counts with five separate Forms 1, is a matter in my view that is an appropriate matter for considerat…
R v Anning
[2014] NSWDC 359 Para 64

…ing this matter, had regard to judgments that I have delivered in relation to the sentencing of offenders for this period of time, such as R v Anning [2014] NSWDC 359, and a decision in the matter of Collins from 2017. Particularly of the various judgments I have had regard to is the decision of R S Hulme J in PWB…
R v Gavel
[2014] NSWCCA 56 Para 62

…he widespread understanding from the evidence available in courts of these matters. Particularly I note a recent judgment on this matter of R v Gavel [2014] NSWCCA 56, particularly at [110]. As was said in that judgment if I might summarise it, child sexual offences to varying degrees of profound and deleterious ef…
MPB v R
[2013] NSWCCA 213 Para 79

…ncerned involved the commission of non-parole periods comprising 35 to 50% of the head sentence” (citing the 2013 decision of MPB v The Queen [2013] NSWCCA 213). The decision in Denham to which I have referred, involved the commission of offences that were committed by the offender over a period of time through the…
Magnuson v R
[2013] NSWCCA 50 Para 77

…to and that I have referred to in my preparation of this judgment, that reflect this fundamental proposition. In the decision of Magnuson v The Queen [2013] NSWCCA 50, Button J at [84] - [90] with the Chief Judge at Common Law McClellan J and Bellew J agreeing, set out the principles that apply in the circumstance…
PWB v R
[2011] NSWCCA 84 Para 64

…sion in the matter of Collins from 2017. Particularly of the various judgments I have had regard to is the decision of R S Hulme J in PWB v The Queen [2011] NSWCCA 84, where his Honour at considerable length with an accompanying schedule, discusses details in relation to the sentencing of offenders in respect of of…
RWB v R
[2008] NSWCCA 93 Para 78

…ly to reflect the proper principles to be applied, that may cause the sentence to be manifestly excessive or otherwise erroneous (see RWB v The Queen [2008] NSWCCA 93) particularly in relation to the issue of non-parole periods. In Magnuson it was held that if sentencing for offences committed at a time when the st…
R v Thomas
[2007] NSWCCA 269 Para 60

…NSWCCA 300 particularly at [48] - [49], R v Wilson [2005] NSWCCA 219 particularly at [25] and by Justice Basten of the Court of Appeal in R v Thomas [2007] NSWCCA 269, particularly at [36] - [37].…
DBW v R
[2007] NSWCCA 236 Para 62

…I note the observations of Spigelman CJ, and DBW v The Queen [2007] NSWCCA 236 relating to the widespread understanding from the evidence available in courts of these matters. Particularly I note a recent judgment on this matter of R v Gavel [2014] NSWCCA 56, particularly at [110]. As was said in that judgment if I…
AJB v R
[2007] NSWCCA 51 Para 78

…d at a time when the statutory ratio did not exist, sentencing judges should sentence in accordance with that fact, citing a 2007 decision of R v AJB [2007] NSWCCA 51. In Magnuson , Button J said that, however, a court sentencing today with regard to old offences must bear in mind that since 1974 it has been establ…
Cahyadi v R
[2007] NSWCCA 1 Para 69

…need only refer to a few. These include the decision of Hammoud from 2000, particularly the judgment of Simpson J, the decision of Howie J in Cahyadi [2007] NSWCCA 1 particularly at [27] and also the cautionary note reflected in the decision of BJW [2000] NSWCCA 60 particularly at [20] relating to the sentencing o…
R v Wilson
[2005] NSWCCA 219 Para 60

…erior courts to my court in a range of cases. Those cases include the decisions of R v Berg [2004] NSWCCA 300 particularly at [48] - [49], R v Wilson [2005] NSWCCA 219 particularly at [25] and by Justice Basten of the Court of Appeal in R v Thomas [2007] NSWCCA 269, particularly at [36] - [37].…
R v Berg
[2004] NSWCCA 300 Para 60

…alue of victim impact statements has been discussed by superior courts to my court in a range of cases. Those cases include the decisions of R v Berg [2004] NSWCCA 300 particularly at [48] - [49], R v Wilson [2005] NSWCCA 219 particularly at [25] and by Justice Basten of the Court of Appeal in R v Thomas [2007] NSWC…
R v MJR
[2002] NSWCCA 129 Para 77

…h the sentencing practices and patterns at the time of the offending. This much was held by the Full Bench of the Court of Criminal Appeal in R v MJR [2002] NSWCCA 129. There are a large number of cases that I have been referred to and that I have referred to in my preparation of this judgment, that reflect this fun…
R v Moon
[2000] NSWCCA 534 Para 78

…e place in the range of objective gravity occupied by the offence, so it was held by the Court of Criminal Appeal in the decision of Moon v The Queen [2000] NSWCCA 534, which is helpful here for comparative sentencing purposes. Of course even if a sentencing judge does take an established sentencing pattern into acc…
R v Thomson; R v Houlton
[2000] NSWCCA 383

…ollins [2017] NSWDC 281 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 129 R v Thomas [2007] NSWCCA 269 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Van Ryn [2016] NSWCCA 1 R v Wilson [2005] NSWCCA 219 RWB v The Queen [2008] NSWCCA 93 Category: Sentence Parties: Regina Ernest John Lee Representation: Representati…
R v BJW
[2000] NSWCCA 60 Para 69

…t of Simpson J, the decision of Howie J in Cahyadi [2007] NSWCCA 1 particularly at [27] and also the cautionary note reflected in the decision of BJW [2000] NSWCCA 60 particularly at [20] relating to the sentencing of multiple offences in relation to young children. More recently in terms of the principles in respe…
Pearce v The Queen
[1998] HCA 57 Para 69

…The first thing I am required to do as I have said, is sentence in accordance with the principles laid down by the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly in the majority judgment at [45]. There are a number of judgments that have subsequently addressed the complexity of considering the totality of…
Power v The Queen
[1974] HCA 26 Para 78

…prisonment required to be served by an offender having regard to all the purposes of justice, citing the High Court judgment Power v The Queen [1974] 131 CLR 623. Their Honours went on to apply those principles to the case in question.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 54)
Crimes Act 1900 (ACT)
1 mention (from Para 6)
Criminal Procedure Act 1986 (NSW)
1 mention

Medium Neutral Citation:	R v LEE, Ernest John [2018] NSWDC 109
Hearing dates:	23 February 2018
Date of orders:	16 March 2018
Decision date:	16 March 2018
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full time custodial sentence. Full details at [100]
Catchwords:	Criminal – sentence – indecent assault – incite act of indecency – discount for utilitarian benefit for plea of guilty before trial – Form 1 matters – historical offences – effect on victims – sentencing patterns of non-parole periods – comparative sentencing
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Attorney General’s Application No 1 of 2002 [2002] 56 NSWLR Cahyadi v Regina [2007] NSWCCA 1 DBW v The Queen [2007] NSWCCA 236 Denham v The Queen [2016] NSWCCA 309 Hammoud (2000) Magnuson v The Queen [2013] NSWCCA 50 Moon v The Queen [2000] NSWCCA 534 MPB v The Queen [2013] NSWCCA 213 Pearce v The Queen (1998) 194 CLR 610 Power v The Queen [1974] 131 CLR 623 PWB v The Queen [2011] NSWCCA 84 R v AJB [2007] NSWCCA 51 R v Anning [2014] NSWDC 359 R v Berg [2004] NSWCCA 300 R v BJW [2000] NSWCCA 60 R v Collins [2017] NSWDC 281 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 129 R v Thomas [2007] NSWCCA 269 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Van Ryn [2016] NSWCCA 1 R v Wilson [2005] NSWCCA 219 RWB v The Queen [2008] NSWCCA 93
Category:	Sentence
Parties:	Regina Ernest John Lee
Representation:	Representatives: Mr. Metcalfe – NSW DPP Ms. Bateman – Offender
File Number(s):	2015/00127300