Legal Research
Cases
R v Lemene

R v Lemene

Case [2001] NSWCCA 5 9 February 2001

Appeal

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
(2001) 118 A Crim R 131

New South Wales

Court of Criminal Appeal

CITATION: R v Lemene [2001] NSWCCA 5

FILE NUMBER(S): CCA 60370/99

HEARING DATE(S): 8/12/2000

JUDGMENT DATE:
9 February 2001

PARTIES :

Regina
Remy Lemene

JUDGMENT OF: Simpson J at 1; Dowd J at 12

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0108

LOWER COURT JUDICIAL
OFFICER : Shillington DCJ

COUNSEL : LMB Lamprati- Crown
CB Craigie- Appellant

SOLICITORS: SE O'Connor- Crown
DJ Humphreys- Appellant

CATCHWORDS: Appeal against severity of sentence - Error in applying Pearce v The Queen conceded - Error in taking matters into account - Re-sentencing - Application of Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Sentencing Act 1989

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610.
R v Gardner (Unreported, NSWCCA, 12/4/1994, Carruthers J, Abadee and Blanch JJ).
R v Hammoud (Unreported, NSWCCA, 15/12/2000, Mason P, Simpson and Dowd JJ).
R v Henry & Ors (1996) 46 NSWLR 436.
R v Hodge (Unreported, NSWCCA, 2/11/1993, Hunt CJ at CL, Allen J and Loveday AJ).
R v Jenkyns (Unreported, NSWCCA, 19/5/1993, Sheller JA, Wood and Sully JJ).
R v Morgan (1993) 70 A Crim R 368.
R v Thompson; R v Houlton [2000] NSWCCA 309.
R v Vougdis (1989) 41 A Crim R 125.

DECISION: 1. Application granted; 2. Appeal allowed; 3. That the sentences imposed by Shillington DCJ be quashed; 4. For re-sentencing, see paragraph 68.

IN THE COURT OF
CRIMINAL APPEAL

SIMPSON J
DOWD J

60370/99
January 2001

R v Remy LEMENE

1 SIMPSON J: I have had the advantage of reading in draft the judgment of Dowd J and I agree with his Honour that error has been demonstrated in two respects. Firstly, as was conceded by the Crown, proper application of the principles expounded in Pearce v R (1998) 194 CLR 610 demanded the imposition of a sentence appropriate to each individual charge to which the applicant pleaded guilty. There were ten such charges: two of robbery, seven of armed robbery, and one of break enter and steal in circumstances of aggravation, each of which carries a maximum penalty of imprisonment for twenty years.

2 A judge called upon to sentence a single offender in respect of multiple counts may frequently become involved in a somewhat complex exercise in partial accumulation, guided by the principle of totality. In this respect I adhere to the views expressed in R v Hammoud (Unreported, NSWCCA, 15/12/2000, Mason P, Simpson and Dowd JJ). Post Pearce, it will no longer be open to a sentencing judge to select the term of imprisonment appropriate to punish the offender for the overall criminality, and impose a sentence of that length in relation to each count. Each count must be considered individually.

3 In this case the identical sentences imposed in relation to each charge on the indictment reflected only the principle of totality, and…

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 Lemene

Details

AGLC: R v Lemene [2001] NSWCCA 5
Case: [2001] NSWCCA 5
Decision Date: 9 February 2001

CaseChat Overview and Summary

In the matter of R v Lemene, the appellant challenged the severity of a sentence imposed by a lower court. The appeal centred around the contention that the sentencing judge had erred in applying the principles set out in Pearce v The Queen. The appellant also argued that the judge had incorrectly taken certain matters into account, which resulted in an unjust increase in the sentence. The case was heard in the appellate court of New South Wales.

The legal issues before the court involved the proper application of sentencing principles and the identification of any errors in the lower court's consideration of sentencing factors. The court needed to determine whether the lower court had correctly applied the guidelines for sentencing, specifically referencing the principles articulated in Pearce v The Queen, and whether the factors taken into account by the lower court were appropriate. The appellant's submission was that the lower court had not correctly adhered to the sentencing framework and had unduly influenced the severity of the sentence.

The appellate court examined the sentencing process and found that the lower court had indeed erred in applying the Pearce principles. The court recognised that the lower court had failed to adequately consider the proportionality of the sentence relative to the crime and had taken into account factors that were not relevant or appropriate. As a result, the court decided to re-sentence the appellant, emphasising the importance of adhering to statutory guidelines. The court ultimately determined that the sentence imposed was excessive and ordered a re-sentencing that would comply with the provisions of the Crimes (Sentencing Procedure) Act 1999.

The final orders of the court included a re-sentencing of the appellant in accordance with the Crimes (Sentencing Procedure) Act 1999. The court stressed the need for the lower court to follow the established sentencing principles and to ensure that any factors considered in the sentencing process were relevant and appropriate. The court also highlighted the importance of proportionality in sentencing to ensure that the punishment fits the crime. The re-sentencing was to be conducted with due regard to the legal principles and statutory requirements.

Orders