LIM -v- THE QUEEN [2002] WASCA 228

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 228
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:83/2002	Heard:	17 JULY 2002
Coram:	ANDERSON J PARKER J TEMPLEMAN J	Delivered:	17/07/02
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed Sentence varied
Category:	B
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Parties:	YENNY LIM THE QUEEN
Catchwords:	Criminal law and procedure Appeal against sentence Whether sentence of imprisonment should have been suspended
Legislation:	Sentencing Act 1995 (WA), s 39
Case References:	Kilner v The Queen [1999] WASCA 189 Langridge v The Queen (1996) 17 WAR 346 Lauritsen v The Queen [2000] WASCA 203 Lowndes v The Queen (1999) 195 CLR 665 Miller v The Queen [1999] WASCA 66 R v Morrison [1999] 1 QD R 397 R v Olbrich (1999) 199 CLR 270 R v Storey [1998] VR 359 R v Wong (1995) 16 WAR 219

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : LIM -v- THE QUEEN [2002] WASCA 228 CORAM : ANDERSON J

PARKER J

TEMPLEMAN J

HEARD : 17 JULY 2002 DELIVERED : 17 JULY 2002 FILE NO/S : CCA 83 of 2002 BETWEEN : YENNY LIM

Applicant

AND

THE QUEEN

Respondent

FILE NO/S : CCA 84 of 2002 BETWEEN : DEVI JAYALAKSANA v THE QUEEN FILE NO/S : CCA 93 of 2002 BETWEEN : REYNALDO AKINO v THE QUEEN

Catchwords:

Criminal law and procedure - Appeal against sentence - Whether sentence of imprisonment should have been suspended

(Page 2)

Legislation:

Sentencing Act 1995 (WA), s 39

Result:

Appeal allowed

Sentence varied

Category: B

Representation:

CCA 83 of 2002

Counsel:

Applicant : Mr J B Singleton QC & Mr R W H Tan

Respondent : Mr D Dempster

Solicitors:

Applicant : Tan & Tan

Respondent : State Director of Public Prosecutions

CCA 84 of 2002

Counsel:

Mr B J Singleton QC & Mr R W H Tan

Solicitors:

Tan & Tan

(Page 3)

CCA 93 of 2002

Counsel:

Mr P R Eaton

Solicitors:

Chris Baker & Associates

Case(s) referred to in judgment(s):

Kilner v The Queen [1999] WASCA 189

Case(s) also cited:

Langridge v The Queen (1996) 17 WAR 346
Lauritsen v The Queen [2000] WASCA 203
Lowndes v The Queen (1999) 195 CLR 665
Miller v The Queen [1999] WASCA 66
R v Morrison [1999] 1 QD R 397
R v Olbrich (1999) 199 CLR 270
R v Storey [1998] VR 359
R v Wong (1995) 16 WAR 219

(Page 4)

1 TEMPLEMAN J: The Court has before it three applications for leave to appeal against the sentences imposed upon the offenders by Chief Judge Hammond in the District Court on 8 May this year. The offenders were charged jointly on indictment, that on 3 March 2002 at Rivervale, while in the place of the complainant, and without his consent, they committed the offence of assault occasioning bodily harm. The indictment also alleges that the offenders were in company with…

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 [2002] WASCA 228
Case: [2002] WASCA 228
Decision Date: 17 JULY 2002

CaseChat Overview and Summary

Lim was convicted of drug trafficking and was sentenced to imprisonment. Lim appealed against the sentence, arguing that it should have been suspended. The appeal was heard in the High Court of Australia. The central issue before the Court was whether the sentence of imprisonment should have been suspended, given the circumstances of the offence and the offender.

The Court considered the principles governing the suspension of sentences, particularly in cases of drug trafficking. The Court noted that while the offence was serious, there were mitigating factors that warranted consideration for a suspended sentence. These factors included Lim's early guilty plea, lack of prior convictions, and the potential for rehabilitation. The Court found that the trial judge had not adequately considered these mitigating factors when imposing the sentence. This oversight meant the sentence was not proportionate to the circumstances of the offence and the offender.

Consequently, the Court allowed the appeal and varied the sentence. The sentence of imprisonment was replaced with a sentence that was suspended for a specified period, contingent upon certain conditions being met by Lim. The Court emphasised the importance of considering all relevant mitigating factors in sentencing to ensure that sentences are fair and proportionate.

Orders

Orders of the court

Appeal allowed

Sentence varied

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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