Lam v R

Case [2015] NSWCCA 143 17 June 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lam v R [2015] NSWCCA 143
Hearing dates: 27 May 2015
Decision date: 17 June 2015
Before: Hoeben CJ at CL at [1]
Johnson J at [85]
Beech-Jones J at [86]
Decision:
(1) Leave to appeal be granted.
(2) The appeal be dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – importing a commercial quantity of a prohibited drug – whether opinion of psychologist wrongly rejected – whether denial of procedural fairness – factual basis for psychologist’s opinion not made out – psychologist’s conclusions going beyond his expertise – no denial of procedural fairness – sentencing judge entitled to reject psychologist’s conclusions.
Legislation Cited: Crimes Act 1914 (Cth) – s 16A(1), s 16A(2)
Criminal Code (Cth) – s 307.1(1)
Evidence Act 1995 – s 79(1)
Cases Cited: Cherdchoochatri v R [2013] NSWCCA 118; 277 FLR 126
Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
Devaney v R [2012] NSWCCA 285
DPP (Cth) v De La Rosa ]2010] NSWCCA 194; 79 NSWLR 1
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
O’Neil-Shaw v The Queen [2010] NSWCCA 42
R v JCW [2000] NSWCCA 209; 112 A Crim R 466
Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213
WW v R [2012] NSWCCA 165
Category: Principal judgment
Parties: Ho Fung Lam – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr S Buchen – Applicant
Mr C O’Donnell – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Commonwealth Director of Public Prosecutions - Respondent Crown

File Number(s): 2012/214286
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 February 2014

Before:

Arnott SC DCJ

File Number(s):

2012/214286

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 15 November 2013 the applicant pleaded guilty to one count of importing a commercial quantity of a prohibited drug, namely 2.8959 kgs of heroin, contrary to s 307.1(1) of the Commonwealth Criminal Code. The offence carried a maximum penalty of imprisonment for life. The threshold commercial quantity of heroin under the Code is 1.5 kgs.

On 14 February 2014 Arnott SC DCJ sentenced the applicant to imprisonment with a non-parole period of 7 years, commencing 16 May 2012 and expiring 15 May 2019 with a balance of term of 4 years expiring 15 May 2023.
The applicant seeks leave to appeal from that sentence on the following grounds:

Ground 1 – The learned sentencing judge’s rejection of the opinions of Dr Jacmon resulted in a denial of procedural fairness and a miscarriage of justice.

Ground 2 – The learned sentencing judge erred by rejecting Dr Jacmon’s opinions that:

(a) The applicant was suffering from a major depressive disorder at the time of the offences; and

(b) The applicant was suffering from a major depressive disorder at the time of sentence.

If successful on these Grounds of Appeal, the applicant seeks an order that…

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 Lam v R

Details

AGLC: Lam v R [2015] NSWCCA 143
Case: [2015] NSWCCA 143
Decision Date: 17 June 2015

CaseChat Overview and Summary

In the case of Lam v R, the appellant was convicted for importing a commercial quantity of a prohibited drug. The appellant appealed against the sentence imposed by the sentencing judge. The appeal raised two primary legal issues: whether the sentencing judge erred in rejecting the opinion of a psychologist and whether the appellant was denied procedural fairness. The High Court of Australia was tasked with resolving these issues.

The first issue concerned the psychologist’s opinion, which the appellant argued should have been accepted by the sentencing judge. The psychologist’s report suggested that the appellant's risk of reoffending was low. However, the court held that the psychologist’s conclusions went beyond his area of expertise and the factual basis for those conclusions was not adequately established. The psychologist’s opinion was thus not persuasive enough to warrant acceptance by the sentencing judge. The second issue pertained to the appellant's claim of procedural unfairness due to the rejection of the psychologist’s opinion. The court found that the appellant was not denied procedural fairness, as the sentencing judge was entitled to consider the weight and relevance of the psychologist’s opinion and ultimately reject it.

The High Court concluded that the sentencing judge did not err in rejecting the psychologist's opinion and did not deny the appellant procedural fairness. The court upheld the sentence imposed by the primary judge, finding that the judge was entitled to consider and weigh the evidence presented, including the psychologist's report, and come to a reasoned decision. The appeal was thus dismissed.

Orders