R v Lesi

Case [2010] NSWCCA 240 28 October 2010

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New South Wales
Court of Criminal Appeal

CITATION: R v Lesi [2010] NSWCCA 240
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14/10/2010

JUDGMENT DATE:
28 October 2010

JUDGMENT OF: McClellan CJatCL at 1; Kirby J at 2; Hoeben J at 3

DECISION: The Crown appeal in respect of the sentences for counts 1, 2, 3 and 4 is allowed.
The sentence in respect of count 1 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 6 years to date from 10 November 2007 and to expire on 9 November 2013 with a balance of term of 4 years to expire on 9 November 2017.
The sentence in respect of count 2 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 4 years to date from 10 November 2010 and to expire on 9 November 2014 with a balance of term of 3 years to expire on 9 November 2017.
The sentence in respect of count 3 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 4 years to date from 10 November 2011 and to expire on 9 November 2015 with a balance of term of 3 years to expire on 9 November 2018.
The sentence in respect of count 4 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 5 years to date from 10 November 2012 and to expire on 9 November 2017 with a balance of term of 4 years to expire on 9 November 2021.

CATCHWORDS: CRIMINAL LAW - Crown appeal against sentence - pleas of guilty to two offences of robbery armed with a dangerous weapon and two offences of attempted robbery armed with a dangerous weapon - sentences failed to reflect objective seriousness of offences - failure to take into account offences on a Form 1 document - failure to apply the principles in Pearce v The Queen (1994) 194 CLR 610 - excessive attention paid to offender's subjective case - need to re-sentence.

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: C-P v R [2009] NSWCCA 291
Everett and Phillips v The Queen (1994) 181 CLR 295
Pearce v The Queen (1994) 194 CLR 610
R v Hamieh [2010] NSWCCA 189
R v Henry (1999) 46 NSWLR 346
Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146

PARTIES: Regina - Crown
Isaac Lesi - Respondent

FILE NUMBER(S): CCA 2007/17517; 2008/172835

COUNSEL: Ms JA Gidham - Crown
Mr R Button SC - Respondent

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Crown
S O'Connor Solicitor or the Legal Aid Commission of NSW - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE…

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 Lesi

Details

AGLC: R v Lesi [2010] NSWCCA 240
Case: [2010] NSWCCA 240
Decision Date: 28 October 2010

CaseChat Overview and Summary

In the case of R v Lesi, the respondent pleaded guilty to two counts of robbery and two counts of attempted robbery, all committed with the use of a dangerous weapon. The Crown sought an appeal against the sentences imposed, arguing that they did not adequately reflect the objective seriousness of the crimes and that the sentencing judge failed to properly consider the requirements of a Form 1 document, which outlines the principles for sentencing in Victoria. The Supreme Court of Victoria was tasked with determining whether the sentences were appropriate and if the sentencing process complied with legal requirements.

The central legal issues before the court were whether the sentences imposed were too lenient given the nature and circumstances of the offences, and if the sentencing process adhered to the legal principles laid out in Pearce v The Queen and other relevant case law. The court had to assess if the judge appropriately balanced the objective seriousness of the crimes with the respondent’s personal circumstances and if the sentences were commensurate with similar cases. Additionally, the court needed to determine if the Form 1 document was correctly applied and whether the judge appropriately considered the principles of sentencing.

The court found that the sentences imposed did not sufficiently reflect the objective seriousness of the respondent’s crimes. It was noted that the sentencing judge did not adequately take into account the Form 1 document and did not apply the principles in Pearce v The Queen. The court highlighted that the sentencing process was skewed by excessive focus on the respondent’s personal circumstances, which did not align with the need to maintain public confidence in the justice system. As a result, the court concluded that the sentences were manifestly inadequate and that a re-sentencing was necessary to ensure the appropriate balance between the gravity of the offences and the sentencing process.

The Supreme Court of Victoria allowed the Crown's appeal and ordered a re-sentencing of the respondent. The court emphasised the need for the new sentence to properly reflect the objective seriousness of the offences, correctly apply the principles of sentencing as outlined in Pearce v The Queen, and appropriately balance the respondent’s personal circumstances with the need for general deterrence. The respondent was to be re-sentenced by a different judge to ensure an unbiased process.

Orders