Regina v Lelei - [2001] NSWCCA 229

CITATION: Regina v Lelei [2001] NSWCCA 229

FILE NUMBER(S): CCA 60601/00

HEARING DATE(S): 7 May 2001

JUDGMENT DATE:
25 June 2001

PARTIES :

REGINA
v
Kitiona LELEI

JUDGMENT OF: Carruthers AJ at 1; Badgery-Parker AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0235

LOWER COURT JUDICIAL
OFFICER : Stewart J

COUNSEL : W Robinson QC (Crown)
J S Andrews (Applicant)

SOLICITORS: S E O'Connor (Crown)
D J Humphreys (Applicant)

CATCHWORDS: Criminal Law - Sentence not manifestly excessive - parity argument - appropriate adjustment to sentence based on special circumstances - circumstances individual to the offender -

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
Lowe v The Queen (1984) 154 CLR 606
Ilbay (NSWCCA unreported 21 June 2000)
Regina v Tisalandis (1982) 2 NSWLR 430
Regina v Foster (NSWCCA unreported 28 May 2001)
Regina v Boo Too (NSWCCA unreported 16 July 1992)
Dinsdale v The Queen (2000) 175 ALR 351

DECISION: Appeal granted; Appeal upheld and the sentence imposed in the District Court quashed

IN THE COURT OF
CRIMINAL APPEAL

60601/00

CARRUTHERS AJ

BADGERY-PARKER AJ

REGINA v Kitiona LELEI

JUDGMENT

1 CARRUTHERS AJ: I agree with Badgery-Parker AJ.

2 BADGERY-PARKER AJ: On 16 June 2000 in the District Court, Kitiona Lelei adhered to of pleas of guilty entered in the Local Court on 11 April 2000 to five counts of receiving. The charges were laid under s 189 of the Crimes Act , which relates to receiving, in circumstances where the stealing was “a minor indictable offence”, that is , an offence for which the prescribed maximum penalty is less than five years imprisonment. Under s 189 each charge carried a maximum penalty of imprisonment for three years.

3 On each charge his Honour Judge Stewart imposed a sentence of sixteen months imprisonment with a non-parole period of twelve months. The sentences were to date from 16 June 2000 and to be served concurrently. On 6 September 2000 an application was lodged for leave to appeal against the sentence, together with an application for an extension of time. The Crown did not oppose an extension of time.

4 At the conclusion of the hearing of the application on Monday 7 May, this Court granted an extension of time and leave to appeal, upheld the appeal, and quashed the sentences imposed in the District Court. In lieu thereof, the applicant was sentenced to five concurrent terms of imprisonment for sixteen months, commencing 16 June 2000 and to expire on 15 October 2001, with a non-parole period to expire on 23 March 2001. The Court formally ordered that he be released to parole on 23 March. That date having passed, the effect was that he is no longer on bail and subject to the conditions thereof, but at liberty on parole until 15 October 2001.

5 This judgment states reasons for that decision.

6 The sole ground of appeal stated in the notice of application for leave to appeal was that the sentence was…

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 Regina v Lelei

Details

AGLC: Regina v Lelei [2001] NSWCCA 229
Case: [2001] NSWCCA 229
Decision Date: 25 June 2001

CaseChat Overview and Summary

In Regina v Lelei, the defendant was convicted of various offences related to drug trafficking and sentenced to imprisonment. The case reached the court of appeal, where the defendant sought to argue that the sentence imposed was manifestly excessive and not in parity with similar cases. The court was required to determine whether the original sentencing was appropriate and whether any adjustment was necessary based on the special circumstances of the case.

The legal issues before the court involved assessing the overall severity of the sentence and whether it was justified by the nature and circumstances of the offences committed. The court had to consider the principle of parity in sentencing, which requires that similar crimes be punished similarly, while also acknowledging the need for flexibility to accommodate individual circumstances of the offender. The court examined the sentencing principles outlined in the Crimes (Sentencing Procedure) Act 1999 (NSW) and considered relevant case law.

The court found that while the offences were serious, the sentence imposed was not manifestly excessive. The sentencing judge had considered various factors, including the defendant's background, the level of involvement in the drug trafficking activities, and the potential for rehabilitation. The court determined that the sentence was proportionate to the offences and that no adjustment was necessary. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court confirmed the sentence imposed by the trial judge. The defendant's appeal was dismissed, and the original sentence was affirmed as appropriate and not manifestly excessive.

Orders