Lai v R

Case [2021] NSWCCA 217 8 September 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lai v R [2021] NSWCCA 217
Hearing dates: 2 August 2021
Date of orders: 8 September 2021
Decision date: 08 September 2021
Before: Bathurst CJ at [1]
Adamson J at [2]
Bellew J at [3]
Decision: (1) Leave to appeal is granted.
(2) The appeal is dismissed.
Catchwords:
CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to an offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug – Parity principle – Whether the applicant had a justifiable sense of grievance in light of the sentences imposed upon co-offenders – Where the fact that all co-offenders were sentenced by the same judge presents a hurdle to an applicant for leave to appeal based on a complaint of unjustified disparity – Where there were distinguishing features between the respective subjective cases – No justifiable sense of grievance made out – Leave to appeal granted – Appeal dismissed
PRACTICE AND PROCEDURE – Observations as to the practice of an offender tendering a statement to a sentencing judge in the absence of giving sworn evidence – Practice to be discouraged – Material of that nature deserving of little or no weight

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chamon v R [2020] NSWCCA 112
Ferrer-Esis v R (1991) 55 A Crim R 231
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Gwardys v R [2019] NSWCCA 62
Klomfar v R [2019] NSWCCA 61
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Pfitzner v R [2010] NSWCCA 314;
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Dennison [2011] NSWCCA 114
R v Lai; R v Po [2019] NSWDC 771
R v Ngan [2020] NSWDC 493
R v Paliwala [2005] NSWCCA 221; (2015) 153 A Crim R 451
Ryan v R [2009] NSWCCA 183
Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Weber v R [2020] NSWCCA 103

Texts Cited:
N/A

Category: Principal judgment
Parties: Wei Han Lai – Applicant
Regina – Respondent
Representation:
Counsel:
M C Ramage QC – Applicant
S Flood – Respondent
Solicitors:
Jeffreys Lawyers – Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s): 2018/146267
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 771

Date of Decision:

26 August 2019

Before:

Williams SC DCJ

File Number(s):

2018/146267

Judgment

BATHURST CJ: I agree with the orders proposed by Bellew J and with his…

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 Lai v R

Details

AGLC: Lai v R [2021] NSWCCA 217
Case: [2021] NSWCCA 217
Decision Date: 08 September 2021

CaseChat Overview and Summary

In Lai v R, the applicant applied for leave to appeal against his sentence following a guilty plea to an offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug. The case was heard in the High Court of Australia, where the primary issue was whether the applicant had a justifiable sense of grievance regarding the disparity between his sentence and those imposed upon his co-offenders. The applicant argued that the sentences were unjust, particularly given that they were all handed down by the same judge. However, the court found that there were distinguishing features in each case, which justified the different sentences. Consequently, the applicant did not have a justifiable sense of grievance, and leave to appeal was granted, but the appeal was ultimately dismissed.

The court examined the principle of parity in sentencing, which requires consistency in the punishment of similarly situated offenders. It considered whether the sentences imposed upon the co-offenders could be seen as unjust when compared to the applicant's sentence. Despite the fact that all sentences were handed down by the same judge, the court found that the distinguishing features of each case justified the different sentences. The applicant's subjective perception of injustice was not enough to establish a justifiable sense of grievance. Therefore, the court held that the applicant did not meet the threshold for leave to appeal based on unjustified disparity.

Furthermore, the court addressed the practice of an offender tendering a statement to a sentencing judge in the absence of giving sworn evidence. The court expressed disapproval of this practice, indicating that such material should be given little or no weight. The court emphasised the importance of providing sworn evidence in order to ensure a fair and just sentencing process. This observation serves as a reminder to legal practitioners and offenders alike of the importance of adhering to proper evidentiary procedures in the sentencing process.

Orders