Lee v R [2019] NSWCCA 106

Lee v R [2019] NSWCCA 106

The primary judge erred by finding, adversely to the applicant and without evidence proving it beyond reasonable doubt, that the applicant was Hadi and Greentree's source of cocaine and had the ability to source the drugs independently of the syndicate. That factual error materially informed the assessment of the applicant's role and objective seriousness. Once corrected, the applicant's criminality was difficult to differentiate from that of Hadi and Greentree except for the more serious charge arising from the quantity of cocaine, and the resulting disparity in sentences gave rise to a justified sense of grievance. Leave was granted, the appeal allowed, and the applicant was re-sentenced.

Jurisdiction
Australia
Judgment Date
14 June 2019
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted, appeal allowed, sentence quashed and applicant re-sentenced.
Legal Topics
['objective Seriousness' 'sentencing Discretion' 'drug Supply' 'large Commercial Quantity of Cocaine' 'parity Principle' 'co Offenders' 're Sentencing']
['criminal Law'] ['objective Seriousness' 'sentencing Discretion' 'drug Supply' 'large Commercial Quantity of Cocaine' 'parity Principle' 'co Offenders' 're Sentencing']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the primary judge erred in assessing the applicant's role in the drug supply enterprise and the objective seriousness of his offending." 'Whether the applicant had a justifiable sense of grievance in the disparity between the ratio of the non-parole period to the additional term imposed on him and the ratios imposed on co-offenders.' 'Whether the applicant had a justifiable sense of grievance in the disparity between his sentence and the sentences imposed on co-offenders Hadi and Greentree.']

Ratio Decidendi

The primary judge erred by finding, adversely to the applicant and without evidence proving it beyond reasonable doubt, that the applicant was Hadi and Greentree's source of cocaine and had the ability to source the drugs independently of the syndicate. That factual error materially informed the assessment of the applicant's role and objective seriousness. Once corrected, the applicant's criminality was difficult to differentiate from that of Hadi and Greentree except for the more serious charge arising from the quantity of cocaine, and the resulting disparity in sentences gave rise to a justified sense of grievance. Leave was granted, the appeal allowed, and the applicant was re-sentenced.

Court Disposition

Leave to appeal granted, appeal allowed, sentence quashed and applicant re-sentenced.

Orders

  • ['Grant leave to appeal and allow the appeal.' 'Quash the sentence passed in the District Court on 11 August 2017 and instead sentence the applicant to a term of imprisonment of 6 years, having a non-parole period of 4 years, commencing on 2 September 2015 and expiring on 1 September 2019 with an additional term of...