Lee v R [2019] NSWCCA 15

Lee v R [2019] NSWCCA 15

Financial gain is not an inherent characteristic nor element of the offence under s 192J of the Crimes Act, and may be considered an aggravating factor. The finding of highly exceptional hardship to the applicant's son was properly taken into account through mitigation and finding of special circumstances, but did not require the imposition of a non-custodial sentence. The aggregate sentence and non-parole period imposed by the District Court were not manifestly excessive and were within proper discretionary bounds.

Jurisdiction
Australia
Judgment Date
08 February 2019
Procedural Posture
Criminal Sentence Appeal / Court of Criminal Appeal, Leave to Appeal and Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['sentence Appeal' 'aggravating Factors' 'manifestly Excessive' 'financial Gain' 'identity Crime' 'hardship to Dependants' 'general Deterrence']
['criminal Law'] ['sentence Appeal' 'aggravating Factors' 'manifestly Excessive' 'financial Gain' 'identity Crime' 'hardship to Dependants' 'general Deterrence']

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Procedural Posture

Criminal Sentence Appeal / Court of Criminal Appeal, Leave to Appeal and Appeal

Legal Issues

  1. 1 ['whether financial gain is an inherent characteristic of the offence under s 192J Crimes Act' "whether error in judge's finding of financial gain as aggravating factor" "whether aggregate sentence was manifestly excessive given hardship to applicant's son" 'whether less weight should be given to general deterrence']

Ratio Decidendi

Financial gain is not an inherent characteristic nor element of the offence under s 192J of the Crimes Act, and may be considered an aggravating factor. The finding of highly exceptional hardship to the applicant's son was properly taken into account through mitigation and finding of special circumstances, but did not require the imposition of a non-custodial sentence. The aggregate sentence and non-parole period imposed by the District Court were not manifestly excessive and were within proper discretionary bounds.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']