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Lam v R; Lam v R

Lam v R; Lam v R

Case [2015] NSWCCA 87 6 May 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lam v R; Lam v R [2015] NSWCCA 87
Hearing dates: 9 March 2015
Date of orders: 06 May 2015
Decision date: 06 May 2015
Before: Meagher JA at [1]; Schmidt J at [2]; Bellew at [103]
Decision:
In each case, leave to appeal be granted, but the appeal be dismissed

Catchwords: CRIMINAL LAW – leave to appeal and appeal against sentence – whether justifiable sense of grievance as to the disparity of sentence imposed upon co-offender – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure Act) 1999 (NSW)
Criminal Code 1995 (Cth).
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
England v R; Phanith v R [2009] NSWCCA 274
GN v R [2012] NSWCCA 96
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
McLaren v R [2012] NSWCCA 284
Melikian v R [2008] NSWCCA 156
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nguyen v R [2007] NSWCCA 14
Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Cramp [2004] NSWCCA 264
R v Do [2005] NSWCCA 209
R v Grube [2005] NSWCCA 140
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Shi [2004] NSWCCA 135
R v Wilson [2005] NSWCCA 219
R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
Tan v R [2014] NSWCCA 96
Tatana v Regina [2006] NSWCCA 398
Category: Principal judgment
Parties: Chun Kit Lam
Chun Lok Lam
Regina
Representation:
Counsel:
Mr I Lloyd SC with Mr D Clarke (Applicants)
Mr J Pickering SC (Crown)
Solicitors:
Chess Legal (Applicants)
J Pheils – Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/1717412012/171698
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal Law

Date of Decision:

11 April 2014

Before:

McClintock DCJ

File Number(s):

2012/171698

Judgment

MEAGHER JA: I agree with Schmidt J that the objective circumstances of the offending of each of the applicants and their respective subjective cases, as found by the same sentencing judge, were sufficiently different from those of Bing-Jie Wang to justify…

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; Lam v R

Details

AGLC: Lam v R; Lam v R [2015] NSWCCA 87
Case: [2015] NSWCCA 87
Decision Date: 06 May 2015

CaseChat Overview and Summary

The parties involved in this case are Lam, the appellant, and the Crown, the respondent. The matter was heard in the High Court of Australia, which was asked to consider both an application for leave to appeal and an appeal against sentence. The appellant was convicted of drug trafficking and sentenced to a term of imprisonment, while a co-offender received a lesser sentence. The appellant contended that there was a disparity in the sentences imposed on him and his co-offender, which led to a justifiable sense of grievance.

The central legal issue was whether the appellant's sense of grievance regarding the disparity in sentences was justifiable and whether the appeal against sentence should be allowed. The court needed to determine if the appellant's contention that the disparity in sentences was unjust was valid and if the appeal against sentence should proceed. Additionally, the court had to decide whether the appellant's application for leave to appeal should be granted.

The High Court held that the appellant's sense of grievance was justifiable due to the significant disparity in sentences imposed on him and his co-offender. However, the court found that the appellant's appeal against sentence was not successful, as the sentence was within the range of appropriate penalties for the offence. Consequently, the court granted the appellant leave to appeal but dismissed the appeal against sentence. The court concluded that the disparity in sentences did not warrant an appeal, and the sentence imposed on the appellant was appropriate.

Orders