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:

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,…

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 Queen

Details

AGLC: Lam v The Queen [2011] VSCA 140
Case: [2011] VSCA 140
Decision Date: 11 May 2011

CaseChat Overview and Summary

The case of Lam v The Queen involved the defendant, Lam, who was originally sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of two years and six months for trafficking in commercial and marketable quantities of controlled drugs. The defendant sought leave to appeal against the sentence, arguing it was disproportionate when compared to her husband’s new sentence following his own re-sentencing. The appeal was heard by the court, which was required to determine whether the disparity between the sentences warranted an appeal on parity grounds.

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