Wayne Kelvin Lavender v Regina

[2006] NSWCCA 24

CITATION:	Wayne Kelvin Lavender v Regina [2006] NSWCCA 24
HEARING DATE(S):	30 January 2006 8 February 2006
JUDGMENT DATE:	8 February 2006
JUDGMENT OF:	Sully J at 1; Hoeben J at 10; Latham J at 11
EX TEMPORE JUDGMENT DATE:	02/08/2006
DECISION:	Leave to appeal against sentence granted; Appeal against sentence dismissed; Sentence reinstated as in judgment
PARTIES:	Wayne Kelvin Lavender Regina
FILE NUMBER(S):	CCA 2005/1635
COUNSEL:	J. A. Girdham - Crown P. Byrne SC - Appellant
SOLICITORS:	D.P.P - Crown Legal Aid - Appellant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0061
LOWER COURT JUDICIAL OFFICER:	Coolahan DCJ

2005/1635

SULLY J
HOEBEN J
LATHAM J

8 February 2006

Wayne Kelvin LAVENDER v REGINA

Judgment

SULLY J: The Court has before it an application by Mr Wayne Kelvin Lavender for leave to appeal against a sentence of imprisonment.

1 The matter giving rise to that sentence has had a long and tortuous path through the Courts. It has culminated in a decision of the High Court of Australia, the effect of which, put simply but sufficiently for present purposes, has been to reinstate Mr Lavender’s conviction for the crime of manslaughter; and in effective practical terms to reinstate the sentence originally passed upon him.

2 Mr Lavender’s personal circumstances are parlous in ways adequately described by the material that has been placed before this Court in connection with the present application. It is not, I think, necessary to canvass the detail of that material.

3 The Court considers that the matter is plainly one in which leave to appeal should be granted. So much is easily decided.

4 What is not so easily decided is how best then to proceed in order to give effect to the Court’s own firm view that the evidence before it makes it imperative, not only on account of what is owed to justice but on account of what is owed to ordinary humanity, that Mr Lavender not simply be recommitted into the mainstream correctional service establishment if there is any proper way of avoiding that outcome.

5 It seems to the Court that there is a proper way of dealing with it; and the orders which I shall propose presently are the orders which the Court sees as being appropriate in that behalf.

6 The Court will formally dismiss the appeal for the reason that the Court, having considered the legalities of the matter, is not persuaded that there has been demonstrated such error as would justify an order allowing the appeal.

7 It is in consideration of the foregoing matters that the Court, with the assistance of the Parole Board which is greatly appreciated, and with the assistance of Assistant Superintendent Adams of the Correctional Services establishment which also is greatly appreciated, has decided upon the course which I shall now announce.

8 The orders of the Court are as follows:

1. Grant leave to appeal against sentence.

2. Appeal against sentence dismissed.

3. Order that for the purpose of the carrying into effect of the sentence thus reinstated:

(a) The appellant’s bail to appear before this Court be revoked.

(b) The appellant be taken forthwith into the custody of Assistant Superintendent Nicholas Adams now present in Court.
(c) The appellant be taken in that custody to a secure part of this building, other than a cell, and there dealt with according to law by the Parole Board; the Court noting that the Secretary of the Board is present before the Court in order to do what is required in that behalf.

9 HOEBEN J: I agree.

10 LATHAM J: I also agree.

11 SULLY J: Orders accordingly.

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