Lam v The Queen

[2011] VSCA 140

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:

1. 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.

1. 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. 

1. 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. 

1. 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. 

1. The applicant now seeks leave to appeal on what were, originally, three grounds, but are now four.  These are, manifest excess (ground 1); a challenge to the sentencing judge’s finding that there was no connection between her intellectual disability and her offending (she has an IQ of 66 and is described as ‘mildly intellectually disabled’) (ground 2); a contention that the sentencing judge erred in assessing the applicant’s role in this offending (ground 3); and now parity (ground 4). 

1. It can be said at once that ground 2 cannot be sustained.  The sentencing judge was entitled to conclude, as she did, that the applicant did not fall within the principles laid down R v Verdins.[1]  Her Honour explained why, in her opinion, the evidence led in support of a Verdins discount did not sufficiently connect the applicant’s disability and her offending.  That conclusion was reasonably open on the evidence, and should not be disturbed. 

   [1](2007) 16 VR 269.

1. The same can be said of ground 3.  It was open to her Honour to conclude that although the applicant played a less central role in trafficking these drugs than did her husband, that role was nonetheless significant.  The telephone intercepts showed that the applicant was actively engaged in counting the tablets that were to be sold, and thereby in facilitating those sales.  

1. Ground 1 is perhaps more problematic.  The head sentence of six years on count 1 is undoubtedly severe.  However, the quantity of the drug involved was substantial.  Certainly, the sentence of 18 months imposed on count 2 was well within range.  So too was the non-parole period of two years and six months.

1. As a result of this Court’s having reduced the applicant’s husband’s sentence, a new ground, complaining of a lack of sufficient disparity, became available.  In truth, that is now the real point of this application. 

1. The applicant’s husband now faces a term of seven years and six months’ imprisonment on count 1, and two years’ imprisonment on count 2.  His total effective sentence is now seven years and six months.  A new non-parole period of five years and six months has been fixed in his case. 

1. In considering the applicant’s involvement in these offences, it is perfectly clear that she played a less significant role than did her husband.  The psychological and psychiatric material led on her behalf on the plea, while not giving rise to an entitlement to a Verdins discount based upon reduced moral culpability, does support the conclusion that the applicant was at all times acting at the behest of her husband.  His was plainly the dominant role in this offending.  She largely did what she was told.

1. In these circumstances, the question of parity is squarely raised.  In R v Goodwin,[2] Eames JA summarised the principles that govern parity as follows:

The Court would only intervene on grounds of disparity where the disparity, or, as may be more appropriately expressed for this case, where the lack of disparity between the two sentences was manifest and would engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done: see R v Taudevin, Lowe v R. Equal justice is said to require an identity of outcome in cases that are relevantly identical and to require different outcomes in cases that are different in some relevant respect: see Wong v R. Where such disparity was disclosed the Court may intervene even though the sentence does not otherwise disclose error in the sentencing process: see R v Wilson.[3]

[2][2003] VSCA 120.

[3]Ibid [21] (footnotes omitted).

1. In our opinion, the applicant would be entitled to feel aggrieved if her sentence of six years on count 1 was to stand, while her husband, who played a more significant role in this offending, and could not call in aid the mitigating factors that are present in the applicant’s case, received a sentence of  seven years and six months on that same count.  The disparity between the two sentences would be entirely insufficient in the circumstances of this case.  In effect, the disparity would be manifestly inadequate. 

1. Like cases should, of course, be treated alike.  The same principle holds in relation to cases that are not alike.  They should be treated differently, and the difference should be clear, and obvious.  This is all part of equal justice. 

1. It is well established that this Court can reduce a sentence that might otherwise be considered within range on parity grounds alone.  In our view, this case calls for precisely such intervention.  

1. Of course, it would never be appropriate, on parity grounds alone, to impose a sentence that this Court would regard as manifestly inadequate.  The principle of parity does not require a court sentencing an offender to impose what, in its view, would be a wholly inappropriate sentence, merely because such a sentence has been imposed upon a co-offender.[4]  An error should be corrected, not replicated.

   [4]See R v D’Ortenzio [1961] VR 432, 433; R v Charles [1979] VR 8; and R v Tisalandis [1982] 2 NSWLR 430, 439. See, generally, the discussion of the authorities on this point in O’Loughlan v The Queen [2010] VSCA 175, [32] and the cases cited at footnote 5 therein.

1. It should be said in passing that this does not mean that even a manifestly inadequate sentence imposed upon a co-offender can be completely ignored.  Where the disproportion between the two sentences is manifestly excessive, the sentence under appeal can be reduced in order to ensure that justice is seen to have been done.[5]

   [5]R v Goldberg [1959] VR 311; R v D’Ortenzio [1961] VR 432; and R v Pecora [1980] VR 499, 502-3.

1. Returning to the facts of the present case, the applicant’s offending was serious, and merited significant punishment.  Nonetheless, when one has regard to the mitigating factors that were present in her case, including her lack of prior convictions, the plea of guilty, her remorse, her prospects of rehabilitation, and the fact that she is intellectually disabled, together with the particular effect that separation from her young children must have upon her, we consider that there is a compelling case for some reduction in her sentence. 

1. We would therefore, on parity grounds alone, grant leave to appeal.  We would treat the appeal as having been heard and determined instanter, and allowed.  We would set aside the sentences imposed below and in lieu thereof impose a sentence of five years’ imprisonment on count 1, and 14 months’ imprisonment on count 2.  We would order that both sentences are to commence this day, making them wholly concurrent.  The total effective sentence would therefore be five years’ imprisonment. 

1. Having regard to the same factors that led the sentencing judge to fix a significantly lower non-parole period than might otherwise have been expected, we would fix a non-parole period of two years.

1. We should indicate that, but for the applicant’s plea of guilty, we would have sentenced her to a term of six years’ imprisonment on count 1 and 18 months’ imprisonment on count 2.  We would have made both sentences concurrent, and we would have fixed a non-parole period of two years and six months. 

1. For the sake of completeness, we should make it clear that, but for the question of parity, which has only arisen as a result of the disposition of the appeal concerning the applicant’s husband,[6] this application would have been refused. 

   [6]Nguyen v The Queen [2011] VSCA 139.

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