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Lam v The King

Lam v The King

Case [2025] WASCA 9 16 January 2025

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LAM -v- THE KING [2025] WASCA 9
CORAM:   HALL JA
VANDONGEN JA
DALTON AJA

HEARD:   17 OCTOBER 2024
DELIVERED          :   16 JANUARY 2025
FILE NO/S:   CACR 109 of 2023
BETWEEN:   DINH THAI LAM
Appellant
AND
THE KING
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND 1696 of 2021
IND 2042 of 2022

Catchwords:

Criminal law - Appeal against sentence - Commonwealth drug offences - Firearms offences - Where appellant committed two groups of offences - Where second group of offences committed whilst on bail for first group - Where second group of offences included trafficking in large quantities of methamphetamine and cocaine - Where the purities of the two types of drug were different - Where the maximum penalties determined by reference to pure quantities - Whether the sentencing judge erred by failing to have regard to the pure quantities of the drugs - Whether the sentencing judge failed to take into account the impact of the appellant's sentence on his daughter - Whether there was an error in the calculation of the discount for pleading guilty - Whether total effective sentence of 14 years breached totality principle

Legislation:

Crimes Act 1914 (Cth), s 3LA(2), s 3LA(6), s 16A(1), s 16A(2)(p), s 16A(2)(g), s 16BA

Criminal Appeals Act 2004 (WA), s 41(2)
Criminal Code (Cth), s 302.2(1), s 302.3(1), s 302.4(1), s 312.1, s 400.4
Criminal Code Regulations 2019 (Cth), sch 1 item 67, sch 1 item 157
Firearms Act 1973 (WA), s 19(1)(c)
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	D Renton SC
Respondent	:	A Willinge

Solicitors:

Appellant	:	A1 Legal
Respondent	:	Director Of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

De Hollander v The Queen [2012] WASCA 127
Dias v The State of Western Australia [2017] WASCA 49
Duong v DPP [2021] VSCA 136
Harvey v The Queen [2018] WASCA 188
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Kleindyk v The Queen [2016] WASCA 123
Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562
Merai v The State of Western Australia [2018] WASCA 54
Morrison v The Queen [2020] QCA 93
R v Jacques [2021] SASCA 94
R v Nakash [2017] NSWCCA 196
R v Ruzehaji [2018] SASCFC 139; (2018) 132 SASR 302
R v The King [1979] VR 399
Totaan v The Queen [2022] NSWCCA 75; (2022) 108 NSWLR 17

JUDGMENT OF THE COURT:

The appellant was convicted on his pleas of guilty of six offences contained in two indictments. On indictment 1696 of 2021 (the 2021 indictment), the appellant pleaded guilty to the following offences:[1]
1.On 26 August 2020, at Perth in the State of Western Australia, [the appellant]…

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 The King

Details

AGLC: Lam v The King [2025] WASCA 9
Case: [2025] WASCA 9
Decision Date: 16 JANUARY 2025

CaseChat Overview and Summary

In the case of Lam v The King, the appellant was convicted of two separate sets of Commonwealth drug offences and firearms offences. The first set of offences involved drug trafficking and possession of firearms, while the second set was committed while the appellant was on bail for the first set. The second set of offences included trafficking in large quantities of methamphetamine and cocaine, with differing purities for each type of drug. The sentencing judge determined the maximum penalties by reference to the pure quantities of the drugs. The appellant appealed against his sentence, arguing that the sentencing judge failed to consider the pure quantities of the drugs, did not adequately consider the impact of the sentence on his daughter, and made an error in calculating the discount for pleading guilty. Additionally, the appellant claimed that the total effective sentence of 14 years breached the totality principle.

The legal issues before the court included whether the sentencing judge erred in failing to consider the pure quantities of the drugs, whether the sentencing judge failed to adequately consider the impact of the sentence on the appellant's daughter, whether there was an error in the calculation of the discount for pleading guilty, and whether the total effective sentence of 14 years breached the totality principle. The court considered each of these issues in turn, reviewing the sentencing judge's approach and the evidence presented.

The court found that the sentencing judge had not erred in failing to consider the pure quantities of the drugs, as the correct approach was to determine the maximum penalties based on the total quantities, not the pure quantities. The court also found that the sentencing judge had adequately considered the impact of the sentence on the appellant's daughter, as the judge had taken into account the appellant's family circumstances and the potential impact of his imprisonment on his daughter. Regarding the calculation of the discount for pleading guilty, the court found that there was no error in the sentencing judge's approach. Finally, the court found that the total effective sentence of 14 years did not breach the totality principle, as the sentence was proportionate to the seriousness of the offences committed.

The court dismissed the appeal against sentence, upholding the original sentence imposed by the sentencing judge. The appellant's conviction and sentence remained unchanged.

Orders