Lim v The Queen - [2021] NSWCCA 141

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lim v R [2021] NSWCCA 141
Hearing dates: 28 May 2021
Date of orders: 7 July 2021
Decision date: 07 July 2021
Before: Harrison J at [1]
Adamson J at [2]
Bellew J at [3]
Decision:
(1) The time in which to file the notice of application for leave to appeal against sentence is extended to 8 December 2020.
(2) Leave to appeal against sentence is granted.
(3) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to a series of offences relating to drug supply – Whether the sentencing judge erred in her assessment of the role of the applicant – Whether applicant had a justifiable sense of grievance in light of sentences imposed on co-offenders – Whether sentence manifestly excessive – Where it was open to the sentencing judge to reject the applicant’s evidence as to his role – Where disparity in sentences was justified on the basis that the criminality of the applicant extended well beyond that of his co-offenders – Serious offending – Where any sentence was required to reflect both general and personal deterrence – Where applicant’s subjective case unremarkable – Sentence not manifestly excessive – Leave to appeal granted – Appeal dismissed

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Goodbun v R [2020] NSWCCA 77
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Li v R [2021] NSWCCA 75
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Category: Principal judgment
Parties: Benjamin Lim – Applicant
Regina – Respondent
Representation:
Counsel:
D S Roff – Applicant
S Traynor – Respondent
Solicitors:
AKN & Associates – Applicant
Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2018/267165
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 December 2019

Before:

Her Honour Judge Traill

File Number(s):

2018/267165

Judgment

HARRISON J: I agree with Bellew J.
ADAMSON J: I agree with Bellew J.
BELLEW J: Benjamin Lim (the applicant) pleaded guilty to a number of offences in the Local Court. Those offences, together with the applicable maximum penalties and the indicative sentences given by the sentencing judge, are set out in the following table provided by the Crown:

Sequence

Offence

Max penalty/ SNPP

Indicative Sentence

Seq 1

Supplying a prohibited drug on 26 July 2018 (139.1g methylamphetamine) contrary to s 25 (1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA).

Form 1 offence of supplying 9.7g

Methylamphetamine on 12 July…

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 Lim v The Queen

Details

AGLC: Lim v The Queen [2021] NSWCCA 141
Case: [2021] NSWCCA 141
Decision Date: 07 July 2021

CaseChat Overview and Summary

The case of Lim v The Queen involved the applicant, Lim, who had pleaded guilty to a series of offences relating to drug supply. Lim sought leave to appeal against the sentence imposed by the sentencing judge, arguing that the sentence was manifestly excessive and that the judge had erred in her assessment of his role in the offending. The central legal issues before the court were whether the sentencing judge had correctly assessed Lim's role in the offending, whether the disparity in sentences between Lim and his co-offenders was justified, and whether the sentence imposed was manifestly excessive.

The court found that it was open to the sentencing judge to reject Lim's evidence regarding his role in the offending. The disparity in sentences between Lim and his co-offenders was justified because Lim's criminality extended well beyond that of his co-offenders. The court held that any sentence imposed on Lim had to reflect both general and personal deterrence due to the seriousness of the offending. The court found that Lim's subjective case was unremarkable and that the sentence was not manifestly excessive. Despite granting leave to appeal, the court dismissed the appeal.

The court concluded that the sentencing judge's assessment of Lim's role in the offending was not flawed and that the disparity in sentences was justified. The court emphasised that the sentence had to account for the need for general and personal deterrence, given the seriousness of the offending. Consequently, the appeal was dismissed, and the sentence imposed by the sentencing judge was upheld.

Orders