R v Lesi - [2005] NSWCCA 63

CITATION:
Regina v Lesi [2005] NSWCCA 63

HEARING DATE(S): 15 February 2005

JUDGMENT DATE:

1 March 2005

JUDGMENT OF:
Grove J at 1; Bell J at 40; Buddin J at 41

DECISION:
Appeal dismissed

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - SENTENCE - PARITY CO-OFFENDER INVOLVED IN ONE ONLY OF TWO MAJOR CRIMINAL ACTIONS BUT FOR ADDITIONAL OFFENCE RELATIVE TO IT - GUIDELINE IN R v HENRY APPROPRIATELY USED FOR OFFENCE OF ROBBERY IN COMPANY - SEPARATE CHARGE CONCERNING PARTICULAR VICTIM - OFFENDER NOT DOUBLY SENTENCED - TEST OF EXCEPTIONAL CIRCUMSTANCES NOT APPROPRIATE FOR DEPARTURE FROM GUIDELINE - IN OVERALL CIRCUMSTANCES LESSER SENTENCE NOT WARRANTED

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999
s6(3) Criminal Appeal Act 1912

CASES CITED:
R v Henry 1999 46 NSWLR 346
R v Murchie 1999 108 A Crim R 482
Pearce v The Queen 1998 194 CLR 610
R v Smith 2004 144 A Crim R 577
R v Stanley [2003] NSWCCA 233

PARTIES:
Regina v Billy Lesi

FILE NUMBER(S):
CCA 2004/2561

COUNSEL:
W. Dawe QC ( (Crown)
P. Boulten SC (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
Galloways (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/0316; 03/21/0138

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

2004/2561

GROVE J
BELL J
BUDDIN J
1 March 2005

REGINA v BILLY LESI

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed in the District Court by Sorby DCJ.

2 The applicant had pleaded guilty to a number of charges when presented in the Local Court and he was committed for sentence. Due to technical irregularities some matters were the subject of re-presentment on indictment but the applicant had effectively admitted his guilt at the earliest opportunity.

3 The first set of charges dealt with on committal for sentence arose out of his participation in a robbery at the Victoria Hotel, Annandale shortly after 1 am on 24 February 2002. The substantive charges were robbery in company (the victim being Mr Colin Hindmarch) and assault (the victim being Mr Alan McIlveen). Taken into account on a Form 1 were four further charges namely robbery in company of Mr McIlveen, assault with intent to rob Leslie Brock; assault with intent to rob Kate Brock, and assault of Leslie Brock.

4 The applicant and an unidentified co-offender entered the hotel, which was closed, but there were then present staff members and some friends of theirs. The offenders claimed to be armed with a gun but it does not appear that a gun was produced. Nevertheless, under the constraints of such representation, Mr Hindmarch was forced to hand over cash holdings of the hotel amounting to over $40,000.

5 The assault of Mr McIlveen followed his compliance with a direction to empty his pockets, during which he produced a set of car keys. The applicant repeatedly asked him where the car was and Mr McIlveen responded on each occasion that it was at Randwick. These responses were met by the applicant punching him about the…

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 [2005] NSWCCA 63
Case: [2005] NSWCCA 63
Decision Date: 1 March 2005

CaseChat Overview and Summary

The case of R v Lesi involved the defendant, Lesi, who was charged with multiple offences including robbery in company and a separate charge relating to a particular victim. The dispute centred on the appropriate sentence for Lesi, particularly whether he should be subject to a lesser sentence due to the exceptional circumstances of his involvement in the crimes. The case was heard in the court of appeal. The primary legal issue was whether the court should impose a lesser sentence for Lesi's involvement in the crimes, given that he participated in only one of the major criminal actions but was also involved in an additional offence related to it. The court needed to determine whether the guideline in R v Henry was appropriately used for the offence of robbery in company and whether the separate charge concerning a particular victim warranted a different sentencing approach.

The court concluded that the guideline in R v Henry was appropriately used for the offence of robbery in company. It noted that Lesi's involvement in the additional offence relative to the major criminal action did not constitute double sentencing. The court found that the test of exceptional circumstances was not appropriate for departure from the guideline, and that in the overall circumstances, a lesser sentence was not warranted. The court emphasised the need for parity in sentencing co-offenders, ensuring that sentences reflect the severity and nature of the crimes committed. The appeal was dismissed, affirming the original sentencing approach.

Orders