Lim v The Queen - [2013] VSCA 148

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0037

JULIE LIM
	Applicant
V
THE QUEEN
	Respondent

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JUDGES	ASHLEY AND COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 June 2013
DATE OF JUDGMENT	18 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 148
JUDGMENT APPEALED FROM	DPP v Lim (Unreported, County Court of Victoria, Judge Parsons, 27 February 2013)

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CRIMINAL LAW — Appeal— Sentencing — Conspiring to defraud contrary to common law — Whether sentence manifestly disparate with sentence imposed on co-offender — Whether classification of criminality of the offending was in error — Whether sentence was manifestly excessive — Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Johns	C D Traill Lawyers
For the Crown	Ms F Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I agreed in the orders pronounced on 5 June 2013 for the reasons explained by Coghlan JA.

COGHLAN JA:

The applicant sought leave to appeal against the sentence imposed, as set out in the table, by his Honour Judge Parsons on 29 November 2012.

charge on indictment
offence maximum sentence

1 Conspiracy to defraud contrary to common law 15 years imprisonment 33 months

Total Effective Sentence: 33 months’ imprisonment

Non-Parole Period: 21 months

Pre-sentence Detention Declared: 99 days

6AAA Statement: 45 months’ imprisonment with a non-parole period of 33 months

Other orders: Compensation orders in the sum of $11,865.76 to be paid as stipulated in the Record of Orders.

On 5 June, the Court announced that, for reasons to be published, it would grant the applicant leave to appeal against sentence, but would dismiss the appeal. These are my reasons for joining in that disposition.

Circumstances

The judge summarised the broad circumstances of the offending as follows. I include references made by his Honour respecting the applicant’s co-offenders Kenny Thee Wei Lim and his wife Sock Hoon Lim:[1]
[1]DPP v Kenny Lim & Sock Lim (Unreported, Court Court of Victoria, Judge Parsons, 28 & 29 November 2012), [2]-[6]

In September 2008 the Victorian and Australian Federal Police commenced an operation into a syndicate involved the importation, embossing and use of counterfeit credit cards and the recruiting of Malaysian Nationals with respect to those matters.

Blank magnetic strip cards bearing images similar to genuine banks and other financial institutions were imported into Sydney or Melbourne from Malaysia. Blank cards were then embossed with stolen overseas credit card information obtained or purchased from internet sites, with losses incurred by both Australian and overseas financial institutions. To aid the use of counterfeit cards the syndicate would also manufacture false Medicare cards and Victorian and New South Wales drivers licences.

The syndicate members were divided into a hierarchy of four categories, which is explained [later]. The syndicate recruited Malaysian Nationals in Australia as shoppers. The shoppers were paid ten to 12 per cent commission on average on the face value of the goods purchased for their role in the syndicate. Each shopper was supplied with false identification.

In…

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 [2013] VSCA 148
Case: [2013] VSCA 148
Decision Date: 18 June 2013

CaseChat Overview and Summary

Lim was convicted of conspiring to defraud the Commonwealth contrary to the common law. He appealed against his sentence on the basis that it was manifestly excessive and disparate when compared to the sentence imposed on his co-offender. The appeal was heard in the High Court of Australia.

The appeal raised questions about the appropriate weight to be given to the disparity in sentencing between co-offenders, and whether the primary judge had erred in the classification of the criminality of the offending. It was argued that the sentence imposed was manifestly excessive, given the lesser culpability of Lim in comparison to his co-offender. The court was required to determine whether the sentence was indeed manifestly excessive and disparate, and if so, whether this warranted interference with the primary judge's discretion.

The court found that the disparity in sentencing between Lim and his co-offender did not render the sentence manifestly excessive or disparate. The court held that the primary judge had not erred in the classification of the criminality of the offending and had exercised their discretion appropriately. The appeal was dismissed, and the sentence imposed on Lim was upheld.

No further orders were made by the court.

Orders