Lewis v R [2021] NSWCCA 108

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lewis v R [2021] NSWCCA 108 Hearing dates: 30 April 2021 Date of orders: 28 May 2021 Decision date: 28 May 2021 Before: Hoeben CJ at CL [1] Bellew J at [2] N Adams J at [64] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the sentencing judge erred in his findings as to the applicant's involvement in the offending – Whether the sentencing judge was restricted to taking into account those acts of the applicant which centred upon the actual manufacturing process – Sentencing judge entitled to have regard to all acts undertaken in pursuit of the joint criminal enterprise when assessing the applicant's role CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the applicant had a justifiable sense of grievance having regard to the sentence imposed on his co-offender – Where co-offender had pleaded guilty to the same offence in circumstances where the applicant had elected to go to trial – Where there were a series of factors which distinguished the respective subjective cases including significant injuries sustained by the co-offender which amounted to extra-curial punishment – Significance of those injuries not reduced by the fact that they were sustained in the course of the offending – No unjustified disparity in the respective sentences imposed – No justifiable sense of grievance established CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether sentence manifestly excessive – Significant role played by applicant – Unremarkable subjective case – Serious offending – Need for general deterrence – Sentence not manifestly excessive Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Alameddine v R [2006] NSWCCA 317 Cashel v R [2018] NSWCCA 292 Christodoulou v R [2008] NSWCCA 102 Gill v R [2010] NSWCCA 236 Goodbun v R [2020] NSWCCA 77 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Li v R [2021] NSWCCA 75 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245 Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 Tatana v R [2006] NSWCCA 398 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Tsimingos v R [2021] NSWCCA 107 Category: Principal judgment Parties: Mark Brett Lewis – Applicant Regina - Respondent Representation: Counsel: G Wendler – Applicant S Traynor – Respondent