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R v Lembke

R v Lembke

Case [2020] NSWCCA 293 13 November 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Lembke [2020] NSWCCA 293
Hearing dates: 12 October 2020
Date of orders: 13 November 2020
Decision date: 13 November 2020
Before: McCallum JA at [1]
Garling J at [2]
Wright J at [68]
Decision:
Appeal dismissed

Catchwords:
CRIME — Appeals — Appeal against sentence — By Crown against inadequacy – where the offender was involved in a significant importation of a commercial quantity of a border controlled drug (cocaine) - whether the sentence imposed on the offender was manifestly inadequate by reference to sentences imposed on co-offenders by a different sentencing judge – the role of the principle of parity in a Crown appeal – appeal dismissed

Legislation Cited:
Criminal Appeal Act 1912
Criminal Code (Cth) 1995

Cases Cited:
Baquiran v R [2014] NSWCCA 221
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Ith v R [2013] NSWCCA 280
Ng v The Queen [2011] NSWCCA 227; (2011) 214 A Crim R 191
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Bath; R v Jackson [2019] NSWDC 1
R v Chandler; Chandler v R [2012] NSWCCA 135
R v Doff [2005] NSWCCA 119
R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
R v Sara [2020] NSWCCA 119
R v Weismantel [2016] NSWCCA 204
Regina v Gu [2006] NSWCCA 104

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Craig William Lembke (Appellant)
Regina (Crown)
Representation:
Counsel:
J Single SC / R Ranken (Appellant)
K H Averre (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Ramsland Laider Solicitors (Respondent)

File Number(s): 2017/346241
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 April 2020

Before:

Priestley DCJ

File Number(s):

2017/346241

Judgment

McCALLUM JA: I agree with Garling J
GARLING J: The respondent, Craig William Lembke (“the respondent”) was convicted by a jury after a trial in the District Court of NSW of an offence contrary to s 307.1(1) of the Criminal Code (Cth) 1995, namely, importing a commercial quantity of a border controlled drug. The substance the respondent was convicted of importing was cocaine.
The respondent had pleaded not guilty, but was convicted after a nine week trial.
On 17 April 2020, he was sentenced to a term of imprisonment of 9 years commencing on 15 November 2017, with a non-parole period of 6 years expiring on 14 November 2023.
On 15 May 2020, the Commonwealth Director of Public Prosecutions (“the appellant”) filed a Notice of Appeal based upon two grounds.
They were:

“1. His Honour erred in his fact-finding task in that he failed to have regard to the circumstantial evidence as a whole, but instead focussed on each individual piece of circumstantial evidence in isolation.
2. The sentence was manifestly inadequate.”

During the course of oral submissions on the appeal, senior counsel…

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 Lembke

Details

AGLC: R v Lembke [2020] NSWCCA 293
Case: [2020] NSWCCA 293
Decision Date: 13 November 2020

CaseChat Overview and Summary

The case of R v Lembke involved the appellant, Lembke, who was convicted of importing a commercial quantity of cocaine. Lembke's appeal was against the sentence imposed by the sentencing judge, arguing it was manifestly inadequate in comparison to the sentences received by co-offenders. The Crown contested the appeal, asserting that the sentence was appropriate given the circumstances. The case was heard by the Court of Appeal, which was tasked with determining whether the sentence imposed was indeed inadequate and if the principle of parity should be considered in this context.

The primary legal issue before the court was whether the sentence imposed on Lembke was manifestly inadequate by reference to the sentences imposed on co-offenders by a different sentencing judge. The court considered the principle of parity, which requires consistency in sentencing for similar offences, but also recognised the need to assess each case on its individual merits. The court had to balance the principle of parity against the unique circumstances of Lembke's case, including the extent of his involvement in the importation of the drugs and his criminal history.

The Court of Appeal found that the sentencing judge had appropriately considered the principle of parity and had given due weight to the individual circumstances of Lembke's case. The court determined that the sentence was not manifestly inadequate and dismissed the Crown's appeal. The judges emphasised the importance of assessing each case individually and noted that the sentencing judge had exercised their discretion correctly in determining the appropriate sentence for Lembke.

No further orders were made by the Court of Appeal.

Orders