Hiu Mei Lam v R - [2021] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0123

HIU MEI LAM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 August 2021
DATE OF JUDGMENT:	1 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 241
JUDGMENT APPEALED FROM:	DPP v Lam [2020] VCC 710 (Judge Stuart)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a large commercial quantity of a drug of dependence (methylamphetamine) – Knowingly dealing in proceeds of crime – Sentenced to 10 years and 6 months’ imprisonment with 7 years non-parole – Family hardship – Applicant Chinese citizen liable to deportation at completion of sentence – Applicant’s child an Australian citizen – Plea for mercy – Hardship exceptional.

CRIMINAL LAW – Appeal – Sentence – Trafficking in a large commercial quantity of a drug of dependence (methylamphetamine) – Knowingly dealing in proceeds of crime – Sentenced to 10 years and 6 months’ imprisonment with 7 years non-parole – Co-offender sentenced to 7 years and 4 months’ imprisonment with 3 years and 9 months non-parole – Whether principle of parity infringed – Disparity not justified – Appeal allowed – Resentenced to 8 years’ imprisonment with 5 years non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr D A Dann QC with Mr J Manning	Melasecca Kelly & Zayler
For the Respondent:	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

Charges, sentences and grounds of appeal

On 21 August 2019, the applicant pleaded guilty to two charges in an indictment filed in the County Court. Her co-offender, Veselin Orlic (‘Orlic’), pleaded guilty to the same two charges on 4 May 2020. The charges were as follows:

CHARGE 2: The Director of Public Prosecutions charges that HIU MEI LAM and VESELIN ORLIC at Chadstone and divers places in Victoria between the 18^th day of October 2017 and the 3^rd day of February 2018 trafficked in a drug of dependence namely methylamphetamine in a quantity that was not less than the large commercial quantity applicable to that drug of dependence.
Statement of Offence: Trafficking in a drug of dependence — large commercial quantity contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981.
CHARGE 3: The Director of Public Prosecutions charges that HIU MEI LAM and VESELIN ORLIC at Chadstone and divers places in Victoria between the 18^th day of October 2017 and the 3^rd day of February 2018 dealt with proceeds of crime namely Australian currency, knowing that it was proceeds of crime.
Statement of Offence: Knowingly dealing with proceeds of crime contrary to s 194(2) of the Crimes Act 1958.

Trafficking in not less than a large commercial quantity[1] of a drug of dependence is punishable by life imprisonment,[2] and knowingly dealing with the proceeds of crime carries a maximum penalty of 15 years’ imprisonment.[3]
[1]Throughout October 2017, a large commercial quantity of methylamphetamine was 750 grams, or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSCA 241
Decision Date: 1 September 2021

CaseChat Overview and Summary

The appellant, Hiu Mei Lam, appealed against her sentence for trafficking in a large commercial quantity of a drug of dependence (methylamphetamine) and knowingly dealing in proceeds of crime. The case was heard in the High Court of Australia. The primary issue before the court was whether the disparity in sentencing between the appellant and her co-offender infringed the principle of parity, given that the disparity was not justified. The court was also required to consider the family hardship caused by the appellant's potential deportation at the completion of her sentence, and the plea for mercy on this basis.

The court noted that the appellant and her co-offender were both involved in the same criminal enterprise, but their roles differed. The appellant was found to have a significant role in the trafficking operation, but her involvement was less than that of the co-offender. The court acknowledged that the principle of parity in sentencing requires that similarly situated offenders be treated alike, but also recognised that differences in roles and personal circumstances can justify disparities in sentences. In this case, the court found that the disparity in sentencing was not sufficiently justified by the differences in the appellant's and co-offender's roles, or by any other factor. The court also considered the family hardship caused by the appellant's potential deportation, but found that this did not constitute exceptional hardship warranting a reduction in sentence.

The appeal was allowed, and the appellant was resentenced to 8 years’ imprisonment with 5 years non-parole. The court found that this sentence better reflected the principle of parity and the circumstances of the case. The court also noted that the resentence took into account the appellant's family circumstances, including the fact that her child is an Australian citizen. The final orders of the court were that the appellant's sentence be reduced to 8 years’ imprisonment with 5 years non-parole.

Orders