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Lim v The Queen

Lim v The Queen

Case [2018] VSCA 64 20 March 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0181

ALAN AIK HUAT LIM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2018
DATE OF JUDGMENT:	20 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 64
JUDGMENT APPEALED FROM:	Director of Public Prosecutions (Cth) v Chu & Anor [2017] VCC 1027 (Judge Mason)

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CRIMINAL LAW — Appeal — Sentence — Traffick in a commercial quantity of a border controlled drug —Whether sentence contravened the principle of parity — Whether there is a marked disparity between the sentences of co-offenders — Difference in the roles of co-offenders — Whether manifestly excessive — Applicant has no relevant priors — Early plea of guilty — Past family hardship — Limited role as conduit in criminal drug enterprise — Genuine remorse — Serious offending —Application for leave to appeal against sentence dismissed — Criminal Code (Cth), ss 302.2(1) —Postiglione v The Queen (1997) 189 CLR 295 —Lowe v The Queen (1984) 154 CLR 606 —DPP (Cth) v Thomas 347 ALR 275

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms M Tittensor	Pica Criminal Lawyers
For the Crown:	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

OSBORN JA:
BEACH JA:

Following a plea of guilty Alan Aik Huat Lim was sentenced by his Honour Judge Mason on 31 July 2017 in the County Court at Melbourne as follows:

*Charge*	*Offence*	*Max Penalty*	*Sentence*	*Cumulation/* *Concurrency*
1	Traffick in a commercial quantity of a controlled drug contrary to ss 302.2(1) Criminal Code (Cth)	Life	9 years	N/A
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period:		6 years’ imprisonment
Pre-sentence detention declared:		699 days
6AAA Statement: 12 years’ imprisonment with a non-parole period of 8 years’ imprisonment.

On the same date, and again following pleas of guilty, Wing Thi Chu, Lim’s co-offender in respect of the trafficking offence was sentenced by his Honour Judge Mason as follows:

*Charge*	*Offence*	*Max Penalty*	*Sentence*	*Cumulation/* *Concurrency*
1	Import a commercial quantity of a border controlled drug contrary to ss 307.1(1) Criminal Code (Cth)	Life	9 years	Commencement 31 July 2022 (3 years cumulation)
2	Attempt to traffick in a commercial quantity of a controlled drug contrary to ss 11.1(1) and 302.2(1) Criminal Code (Cth)	Life	11 years	Base
Total Effective Sentence:		14 years’ imprisonment
Non-Parole Period:		10 years’ imprisonment
Pre-sentence detention declared:		635 days
6AAA Statement: 18 years’ imprisonment with a non-parole period of 14 years’ imprisonment.

Sing Fat Cheung, Chu’s co-offender with respect to the importation offence, was sentenced to seven years’ imprisonment with a non-parole period of four and a half years by his Honour Judge Stuart in the County Court at Melbourne on 22 November 2016 following a plea of guilty to one charge of importing a commercial quantity of a border control drug contrary to s 307.1(1) Criminal Code (Cth).

The proposed grounds of appeal

Lim seeks leave to appeal on two bases.

(1) The sentences…

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 [2018] VSCA 64
Case: [2018] VSCA 64
Decision Date: 20 March 2018

CaseChat Overview and Summary

The case of Lim v The Queen involved an appeal against a sentence imposed on the applicant for trafficking in a commercial quantity of a border controlled drug. The applicant, along with co-offenders, was found to have participated in the illegal activity, albeit in varying capacities. The legal issues before the court included whether the sentence contravened the principle of parity and whether there was a marked disparity between the sentences of co-offenders. The applicant argued that the sentence was manifestly excessive given their limited role, absence of relevant priors, an early plea of guilty, past family hardship, and genuine remorse.

The court examined the principle of parity, which mandates that sentences imposed on co-offenders should not be excessively disproportionate. It noted the differences in the roles of the co-offenders and considered the applicant's limited involvement as a conduit in the criminal drug enterprise. Despite these factors, the court held that the sentence was not manifestly excessive. The court emphasised the seriousness of the offence and the need for general and specific deterrence, weighing these against the mitigating factors presented by the applicant. The early plea of guilty and genuine remorse were considered, but the gravity of the crime and its impact on society were paramount.

The court concluded that while the applicant's role was less significant than that of some co-offenders, it was still substantial. The disparity in sentences was deemed justifiable given the varying degrees of culpability. The court also considered the broader implications of the offence, including the impact on public health and safety. The application for leave to appeal against the sentence was dismissed, as the court found the sentence to be within the appropriate range for the offence committed.

Orders