Lam v R

Case [2014] NSWCCA 50 1 May 2014

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Court of Criminal Appeal

New South Wales

Case Title: Lam v R

Medium Neutral Citation: [2014] NSWCCA 50

Hearing Date(s): 4 April 2014

Decision Date: 01 May 2014

Before: RA Hulme J at [1]
Davies J at [2]
Adamson J at [49]

Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence - supply prohibited drug - whether good character should be accorded less weight for drug offences - parity - same judge sentences both offenders - submission at sentencing hearing by applicant that parity principle not engaged - appeal ground based on lack of parity

Cases Cited: Athos v R [2013] NSWCCA 205
Brent Redfern v R [2012] NSWCCA 178
Loader v R; Dunn v R [2013] NSWCCA 215
R v Baker [2000] NSWCCA 85
R v Leroy (1984) 13 A Crim R 469
R v Swan [2006] NSWCCA 47
Restuccia v R [2012] NSWCCA 15
Sinkovich v R [2011] NSWCCA 90
Van Can Ha [2008] NSWCCA 141
Zreika v R [2012] NSWCCA 44

Category: Principal judgment

Parties: Tuyet Lam (Applicant)
Crown (Respondent)

Representation

- Counsel: Counsel:
C Smith (Applicant)
H Wilson SC (Crown)

- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/224579

Decision Under Appeal

- Before: Bozic DCJ

- Date of Decision: 22 July 2013

- Court File Number(s): 2011/224579

JUDGMENT

R A HULME J: I agree with Davies J.
DAVIES J: The Applicant stood trial before Judge Bozic and a jury on four counts as follows:
Count 1: Ongoing supply of a prohibited drug being heroin between 17 May 2011 and 8 June 2011;
Count 2: Supply a prohibited drug, namely heroin, on 18 May 2011;
Count 3: Supply a prohibited drug, namely heroin, on 3 June 2011; and
Count 4: Supply a prohibited drug, namely heroin, on 7 June 2011.
The Applicant was found not guilty on counts 1 and 3 but guilty on counts 2 and 4.
The Applicant was sentenced by Judge Bozic on 22 July 2013 as follows:
Count 2: A non-parole period of 18 months commencing 22 July 2013 and expiring 21 January 2015 with an additional term of six months;
Count 4: A non-parole period of 18 months commencing 22 July 2013 and expiring 21 January 2015 with an additional term of six months;
At the same time a co-offender, Wei Pan, was charged with the following matters:
Count 1: Supply a prohibited drug, namely heroin, on 4 May 2011;
Count 2: Supply a prohibited drug, namely heroin, on 6 May 2011;
Count 3: Supply a prohibited drug (heroin) on an ongoing basis on six occasions between 11 May 2011 and 7 June 2011; and
Count 4: Supply a prohibited drug, namely heroin, on 6 July 2011.
The co-offender pleaded guilty to each of the four counts. The two offences in respect of which the Applicant was convicted were concerned with the same transactions as formed part of the ongoing supply by the co-offender.
On 1 March 2013…

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 [2014] NSWCCA 50
Case: [2014] NSWCCA 50
Decision Date: 01 May 2014

CaseChat Overview and Summary

In Lam v R, the appellant was convicted of multiple charges related to the supply of prohibited drugs. The case was heard in the High Court of Australia. The primary issue before the court was whether the principle of parity, which requires consistency in sentencing when two offenders are sentenced by the same judge for similar offences, was appropriately applied in the sentencing of the appellant. The appellant argued that the parity principle did not apply in his case due to the submissions made at the sentencing hearing, leading to an appeal on the grounds that the lack of parity in sentencing constituted a miscarriage of justice.

The court examined the sentencing principles and the role of parity in achieving equitable outcomes. It considered whether the submissions made during the sentencing hearing, which suggested that the principle of parity should not apply, sufficiently addressed the requirement for consistent sentencing. The court also assessed whether the failure to apply the parity principle led to an unjust outcome, particularly in light of the appellant's submissions during the hearing.

The High Court determined that the principle of parity is a crucial aspect of sentencing that ensures consistency and fairness. The court found that the submissions made at the sentencing hearing did not sufficiently address the principle of parity, leading to a deviation from established sentencing principles. The court concluded that this deviation resulted in a significant injustice, as it undermined the principle of parity and led to an outcome that was not consistent with the sentencing of other offenders in similar circumstances. Consequently, the appeal was upheld, and the case was remitted for resentencing to ensure that the parity principle was properly applied.

The High Court ordered that the case be remitted to the sentencing court for resentencing, ensuring that the principle of parity was appropriately considered. The court emphasized the importance of adhering to established sentencing principles to maintain fairness and consistency in the criminal justice system.

Orders