SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 148
| LINH THI LAM | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG JA and KING AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 May 2011 |
| DATE OF JUDGMENT | 11 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 140 |
| JUDGMENT APPEALED FROM | R v L.T. Lam (Unreported, County Court of Victoria, Judge Jenkins, 30 April 2010) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Trafficking in commercial and marketable quantities of controlled drugs – Sentenced to total effective sentence of six years’ imprisonment with non-parole period of two years and six months – Husband re-sentenced by Court for same offences – Sentencing judge entitled to conclude that Verdins did not apply - Sentencing judge entitled to conclude that applicant played significant although less central role than her husband – Disparity between applicant’s sentence and husband’s new sentence – Leave to appeal granted on parity ground alone – Appeal allowed – Re-sentenced – Total effective sentence five years’ imprisonment with non-parole period two years.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr M D Phillips | Commonwealth Director of Public Prosecutions |
WEINBERG JA
KING AJA:
The applicant, Linh Thi Lam, pleaded guilty in the County Court at Melbourne to two counts of trafficking in a controlled drug, contrary to the provisions of the Criminal CodeAct 1995 (Cth). Count 1 alleged trafficking in a commercial quantity of MDMA (commonly known as ‘ecstasy’). It carried a maximum of life imprisonment. Count 2 alleged trafficking in a marketable quantity of methamphetamine (commonly known as ‘ice’). It carried a maximum of 25 years’ imprisonment.
The applicant was sentenced to a term of six years’ imprisonment on count 1 and 18 months’ imprisonment on count 2. It was ordered that both sentences be served concurrently. A non-parole period of two years and six months was fixed.
At the time the applicant was arrested by the Australian Federal Police, she was in possession of some 77,787 tablets. The total weight of the tablets came to 24.5 kilograms. Of that total weight, there were 881 grams of MDMA and 266 grams of methamphetamine. The commercial quantity for MDMA is 500 grams, and the marketable quantity for methamphetamine is 250 grams.
The applicant is the wife of Thanh Tung Nguyen, whose appeal we dealt with earlier today. He was arrested on 30 October 2007, the same date as the applicant. He pleaded guilty to the same charges some time prior to the applicant having agreed to do so. He was sentenced by a different judge, on an earlier date, to a term of nine years and six months’ imprisonment on count 1, and three years’ imprisonment on count 2. Those sentences were made wholly concurrent. His total effective sentence was, therefore, nine years and six months. In his case, a non-parole period of seven years was fixed.
The applicant now seeks leave to appeal on what were, originally,…
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- AGLC
- Lam v The Queen [2011] VSCA 140
- Case
- [2011] VSCA 140
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the sentencing judge was entitled to conclude that the decision in Verdins did not apply and that Lam played a significant, albeit less central role than her husband in the drug trafficking operation. Additionally, the court had to assess whether the disparity between Lam's original sentence and her husband's new sentence justified the granting of leave to appeal on parity grounds. The court examined the evidence and the sentencing principles relevant to the case, considering the roles of both Lam and her husband in the criminal activity.
The court found that the sentencing judge was entitled to conclude that the Verdins principle did not apply in this case, as the facts did not align with the conditions under which the principle would be relevant. The court also accepted that Lam played a significant role in the drug trafficking, albeit less central than her husband. The disparity between the sentences, however, was deemed sufficient to grant leave to appeal on parity grounds. Consequently, the appeal was allowed, and Lam was re-sentenced to a total effective sentence of five years’ imprisonment with a non-parole period of two years.
The final orders of the court included the allowance of the appeal and the re-sentencing of Lam to a total effective sentence of five years’ imprisonment with a non-parole period of two years. The court’s decision emphasised the importance of parity in sentencing and the need for a balanced approach when considering the roles and circumstances of co-offenders in drug trafficking cases.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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