Lee v R [2019] NSWCCA 106

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lee v R [2019] NSWCCA 106 Hearing dates: 30 November 2018 Date of orders: 14 June 2019 Decision date: 14 June 2019 Before: Hoeben CJ at CL [1]; Johnson J at [2] Campbell J [3] Decision: (1) Grant leave to appeal and allow the appeal; (2) 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 2 years commencing 2 September 2019 and expiring on 1 September 2021. The applicant will be first eligible for release on parole after the expiration of the non-parole period on 1 September 2019 Catchwords: CRIMINAL LAW – Objective seriousness – error made in the exercise of discretion – whether the primary judge erred in assessing the applicant's role in the drug supply enterprise – held in accepting erroneous assessment of the primary judge it must be accepted that the evaluation of objective seriousness is also erroneous – held primary judge fell into error by characterising the involvement of the applicant as more serious than that indicated by the evidence

CRIMINAL LAW – Appeals – parity principle – equality before the law – whether the applicant has a justifiable sense of grievance in the disparity of sentences imposed – substance rather than form – objective assessment of subjective circumstances – held disparity between sentences of co-offenders gives rise to a justified sense of grievance – resentence applicant Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) s 25 Cases Cited: AB v R [2014] NSWCCA 339 Aoun v R [2011] NSWCCA 284 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Koh v R [2013] NSWCCA 287 Mulato v R [2006] NSWCCA 282 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ho v R [2013] NSWCCA 174 R v O'Donoghue (1988) 34 A Crim R 397 R v Storey [1998] 1 VR 359 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Anslam Lee (Applicant) Reginal (Respondent) Representation: Counsel: P Coady (Applicant) F. Veltro (Crown)