KA Yan Lam v The Queen - [2017] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0025
S APCR 2017 0106

KA YAN LAM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, HANSEN and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2017
DATE OF JUDGMENT:	4 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 206
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Judge Dean, 17 October 2016

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REASONS DELIVERED EX TEMPORE
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CRIMINAL LAW — Appeal — Conviction — Commonwealth drug offences — Methamphetamine — Appellant convicted on guilty plea of importing marketable quantity of controlled drug contrary to Criminal Code (Cth) s 302.3(1) — Prosecution error as to applicable marketable quantity — Distinction between marketable quantity of controlled drug and border controlled drug — Substantial miscarriage of justice — Appeal allowed — Conviction set aside — Conviction for trafficking controlled drug against Criminal Code (Cth) s 302.4(1) substituted — Criminal Code Regulations 2002 (Cth) schs 3, 4, Criminal Procedure Act 2009 (Vic) ss 276(1)(c), 277(1)(c)(ii).

CRIMINAL LAW — Appeal — Sentence — Commonwealth drug offences — Applicant initially sentenced to 6 years’ imprisonment for trafficking in marketable quantity of controlled drug — Conviction set aside and conviction for trafficking simpliciter substituted — Sentencing discretion reopened — Applicant of good character with no prior history — Resentenced to 3 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Theo Magazis & Associates
For the Crown	Ms K Breckweg	Commonwealth Director of Public Prosecutions

PRIEST JA:

Controlled drugs and border controlled drugs

On 7 October 2016, the applicant pleaded guilty in the County Court to attempting to possess a marketable quantity of a border controlled drug[1] (charge 1) and trafficking a marketable quantity of a controlled drug[2] (charge 2). For the purposes of both charges, the relevant drug was methamphetamine.
[1]Criminal Code (Cth), ss 11.1(1) and 307.9(1). The maximum penalty is 25 years’ imprisonment.
[2]Criminal Code (Cth), s 302.3(1). The maximum penalty is 25 years’ imprisonment.

The Criminal Code (Cth) (‘the Code’) distinguishes between a controlled drug and a border controlled drug. By virtue of the definitions of each found respectively in ss 301.1 and 301.4 of the Code, however, both are a substance, other than a growing plant, that is:

(a)listed by a regulation as either a controlled drug or a border controlled drug; or
(b)a drug analogue of either a listed controlled drug or a listed border controlled drug; or
(c)determined by the Minister as either a controlled drug or a border controlled drug under section 301.13 (which deals with emergency determinations of serious drugs).

Importantly, the Criminal Code Regulations 2002 (Cth) (‘the Regulations’) prescribe commercial, marketable and trafficable quantities of controlled drugs; and commercial and marketable quantities of border controlled drugs.

Methamphetamine is both a controlled drug and a border controlled drug.

By virtue of reg 5A and Schedule 3 of the Regulations, commercial, marketable and trafficable quantities of methamphetamine as a controlled drug are respectively .75 kilograms (750 grams), 250 grams…

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.

Continue reading KA Yan Lam v The Queen

Details

AGLC: KA Yan Lam v The Queen [2017] VSCA 206
Case: [2017] VSCA 206
Decision Date: 4 August 2017

CaseChat Overview and Summary

In the High Court of Australia, the appellant, KA Yan Lam, appealed against his conviction and sentence in the Supreme Court of Victoria. The appellant had pleaded guilty to importing a marketable quantity of a controlled drug, specifically methamphetamine, contrary to section 302.3(1) of the Criminal Code Act 1995 (Cth). The central issue was whether the prosecution had accurately identified the quantity of the drug as being a marketable quantity, as defined by the Criminal Code Regulations 2002 (Cth). The appellant argued that there was a substantial error in the prosecution's calculation, which led to a misunderstanding of the legal definition of a marketable quantity of a controlled drug, as opposed to a border controlled drug.

The court examined whether the error regarding the marketable quantity of the controlled drug constituted a substantial miscarriage of justice. It was noted that the prosecution's miscalculation of the quantity of the drug meant that the conviction under section 302.3(1) of the Criminal Code Act 1995 (Cth) could not stand, as it did not meet the threshold for a marketable quantity. The court concluded that the error was indeed significant, leading to the appellant’s conviction being set aside. Instead, the court substituted the conviction with one for trafficking under section 302.4(1) of the Criminal Code Act 1995 (Cth), without the need for a marketable quantity.

Given that the conviction was substituted, the court reconsidered the sentencing. The appellant, who had no prior criminal history and was of good character, was initially sentenced to six years' imprisonment. The court recognised that the resentencing should reflect the substituted conviction and the appellant's background. Consequently, the court resentenced the appellant to three years' imprisonment. The final orders included the setting aside of the original conviction and the substitution of a conviction for trafficking in a controlled drug, along with a new sentence of three years' imprisonment.

Orders