Lee v Regina [2011] NSWCCA 169

Lee v Regina [2011] NSWCCA 169

The appeal was allowed because, although the sentencing judge did not err in finding that the applicant facilitated the murder, in rejecting the alleged double-counting, or in applying the guilty plea discount, the sentence did not adequately distinguish the applicant's criminality from that of Mr Wong. The applicant was not the principal offender, did not inflict the fatal knife wound, had better rehabilitation prospects, was not on conditional liberty, and was youthful. A notional starting point of 22 years was too high by comparison with Mr Wong; the appropriate starting point was 20 years, producing a total sentence of 17 years and 6 months after the accepted discount and adjustment...

Jurisdiction
Australia
Judgment Date
28 July 2011
Procedural Posture
Criminal Appeal Against Sentence for Murder / Application for Leave to Appeal to the Court of Criminal Appeal; Leave Granted, Appeal Allowed and Applicant Resentenced
Outcome
Leave to appeal granted; appeal allowed; sentence set aside; applicant resentenced to imprisonment for 17 years and 6 months with a non-parole period of 12 years and 3 months.
Legal Topics
['murder' 'sentence Appeal' 'parity Between Co Offenders' 'objective Seriousness' 'joint Criminal Enterprise' 'aggravating Factors' 'mitigating Factors' 'guilty Plea Discount' 'special Circumstances' 'non Parole Period']
['criminal Law' 'sentencing'] ['murder' 'sentence Appeal' 'parity Between Co Offenders' 'objective Seriousness' 'joint Criminal Enterprise' 'aggravating Factors' 'mitigating Factors' 'guilty Plea Discount' 'special Circumstances' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence for Murder / Application for Leave to Appeal to the Court of Criminal Appeal; Leave Granted, Appeal Allowed and Applicant Resentenced

Legal Issues

  1. 1 ['Whether the sentence imposed for murder was manifestly excessive.' "Whether the sentence failed adequately to reflect the applicant's lower culpability compared with co-offender Ivan Wong." 'Whether the sentencing judge erred in finding that the applicant facilitated the murder and had an intention to inflict grievous bodily harm.' 'Whether the sentencing judge double-counted the use of a weapon and commission of the offence in company as aggravating factors.' "Whether sufficient weight was given to the applicant's plea of guilty, remorse, prior good character, assistance to police, prospects of rehabilitation and youth." 'Whether the adjustment for special circumstances and the relationship between the non-parole period and balance of term were appropriate.']

Ratio Decidendi

The appeal was allowed because, although the sentencing judge did not err in finding that the applicant facilitated the murder, in rejecting the alleged double-counting, or in applying the guilty plea discount, the sentence did not adequately distinguish the applicant's criminality from that of Mr Wong. The applicant was not the principal offender, did not inflict the fatal knife wound, had better rehabilitation prospects, was not on conditional liberty, and was youthful. A notional starting point of 22 years was too high by comparison with Mr Wong; the appropriate starting point was 20 years, producing a total sentence of 17 years and 6 months after the accepted discount and adjustment...

Court Disposition

Leave to appeal granted; appeal allowed; sentence set aside; applicant resentenced to imprisonment for 17 years and 6 months with a non-parole period of 12 years and 3 months.

Orders

  • ['Grant the applicant leave to appeal against the sentence for murder imposed on him by Price J on 18 June 2010.' 'Allow the appeal and set aside the sentence.' 'Sentence Michael Lee for the murder of Joon Yup Lee to imprisonment for a non-parole period of 12 years and 3 months, taken to have commenced on 20 March...