Wayne Kelvin Lavender v Regina [2006] NSWCCA 24

New South Wales Court of Criminal Appeal

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

IN THE COURT OF CRIMINAL APPEAL 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.