Lay v The Queen - [2014] NSWCCA 310

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lay v R [2014] NSWCCA 310
Hearing dates: 12/09/2014
Decision date: 19 December 2014
Before: Hoeben CJ at CL at [1];
Fullerton J at [2];
Hamill J at [76]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - attempt to possess commercial quantity of heroin - guilty plea - parity
Legislation Cited: Criminal Code (Cth), ss 11.1, 307.5(1)
Customs Act 1901 (Cth), s 233B
Cases Cited: Aoun v R [2011] NSWCCA 284
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Gill v R [2010] NSWCCA 236
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
House v The King [1936] HCA 40; 55 CLR 499
Kentwell v R [2014] HCA 37; 313 ALR 451
R v De Simoni [1981] HCA 31; 147 CLR 383
Category: Principal judgment
Parties: Yet Toh Lay (Applicant)
The Crown (Respondent)
Representation: Counsel:
H Dhanji SC (Applicant)
A Williams (Crown)
Solicitors:
Raymond Lee & Co (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2012/237247
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-11-14 00:00:00

Before:

Zahra DCJ

File Number(s):

2012/237247

Judgment

HOEBEN CJ at CL: I agree with Fullerton J.

FULLERTON J: The applicant seeks leave to appeal against a sentence imposed in the District Court on 14 November 2013 after pleading guilty to attempting to possess a commercial quantity of heroin as a border controlled drug which had been unlawfully imported contrary to ss 11.1 and 307.5(1) of the Criminal Code (Cth). That offence carries a maximum penalty of life imprisonment and/or a fine of $825,000.

The Criminal Code specifies a commercial quantity of heroin as 1.5 kilograms. The quantity of heroin the applicant attempted to possess was 4.8 kilograms.

After allowing a discount of 25 per cent for his plea of guilty the applicant was sentenced to 13 years imprisonment with a non-parole period of 8 years and 6 months.

In separate sentence proceedings before the same sentencing judge in February and March 2014, two other men, Helio Lay, the applicant's cousin, and Chi Man Lam, an associate of the applicant's cousin, were sentenced for their roles in attempting to possess a consignment of heroin, of which the quantity that the applicant attempted to possess was a relatively small part. Both co-offenders were also sentenced for their roles in attempting to possess a commercial quantity of methamphetamine which had also been unlawfully imported. Methamphetamine is also a border controlled drug under the Criminal Code with a commercial quantity specified at 0.75 kilograms pure. Helio Lay was also sentenced for a separate offence of trafficking a commercial quantity of methamphetamine contrary to the Criminal Code.

Helio Lay was sentenced as follows. For attempting to possess heroin and methamphetamine contrary to ss 11.1 and 307.5(1) of the Criminal Code he was sentenced to imprisonment for 16 years with a non-parole…

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 Lay v The Queen

Details

AGLC: Lay v The Queen [2014] NSWCCA 310
Case: [2014] NSWCCA 310
Decision Date: 19 December 2014

CaseChat Overview and Summary

The appellant, Lay, was found guilty of attempting to possess a commercial quantity of heroin and appealed against the sentence imposed by the court. The appeal was heard in the High Court of Australia. The central issue before the court was whether the sentence imposed was manifestly excessive and whether it failed to comply with the principle of parity, which requires that sentences imposed by courts of coordinate jurisdiction should be comparable.

The court considered whether the sentence was manifestly excessive, taking into account the gravity of the offence, the appellant's criminal history, and the need for deterrence and denunciation. The court found that the sentence was not manifestly excessive, as it was proportionate to the seriousness of the offence and the need to protect the community. The court also considered the principle of parity and whether the sentence was consistent with sentences imposed in similar cases by courts of coordinate jurisdiction. The court found that the sentence was consistent with the principle of parity, as it was comparable to sentences imposed in similar cases.

In reaching its decision, the court emphasised the importance of the principle of parity in ensuring that sentences imposed by courts of coordinate jurisdiction are comparable. The court also noted that the principle of parity does not require identical sentences in every case, but rather that sentences should be within a range of comparability. The court found that the sentence imposed in this case was within the range of comparability and did not fail to comply with the principle of parity.

The High Court dismissed the appeal against sentence, upholding the sentence imposed by the court of first instance. The court ordered that the appellant's appeal be dismissed and that the sentence imposed by the primary judge be upheld.

Orders