R v Lam - [1999] QCA 299

COURT OF APPEAL 99.299

McMURDO P
PINCUS JA
CULLINANE J

CA No 166 of 1999

THE QUEEN

and

VAN CAM LAM Applicant

TOWNSVILLE

..DATE 30/07/99

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty to one count of trafficking in heroin between 18 January 1998 and 12 June 1998. Unfortunately, the facts placed before the sentencing Judge were not accurate and it is common ground that it is therefore necessary for this Court to resentence the applicant because of misinformation placed before the learned sentencing Judge.

An undercover operation code-named “Attic” was commenced to detect participants in the drug trade. Between 19 January 1998 and 12 June 1998, the applicant supplied approximately 37 grams of heroin powder containing approximately 25 grams of pure heroin to a covert police operative in exchange for $33,750.

There were either 12 or 13 separate supplies to the covert police operative and one supply to an unknown male person on 25 February 1998. The deals started in a relatively small way for sums of $400 and gradually increased till, on 9 March, the transactions involved $5,000.

On 14 March 1998, a search warrant was executed by police at the applicant's home and a bag containing eight foils of heroin was located. A further foil was found inside a telephone book, as were paper pipes used for smoking heroin. In addition money was found on the premises, including $590 under a mattress, and electronic scales.

The applicant was charged with a number of drug related offences and bailed. It is a serious aggravating factor that he then continued to do business with the CPO on at least two occasions.

He pleaded guilty in the Magistrates Court on 2 April 1998 to possession of utensils or pipes and was convicted and fined $225. He was committed for trial on other charges, including possessing heroin and these charges were subsumed in the offence of trafficking, the subject of this application.

The prosecution submitted on sentence, that although the applicant was an addict the amount he earned from trafficking was more than he needed to support his addiction. The defence submission made below was that the applicant received $100 for each gram of heroin sold and sometimes took part of the heroin for his own use, but that all the money he received from trafficking in heroin was used by him to support his habit.

This factual conflict was not particularly identified as one of importance at the sentences and no resolution was made in respect of it. In the end, it matters little whether the money received by the applicant through his trafficking was entirely spent by him to feed his heroin addiction or whether some of it was used for living expenses. It is common ground that he was an addict and was involved in the trafficking to support his addition.

The applicant was born in Vietnam in 1964 and has no prior convictions. He is therefore 35 years old. He came to Australia in 1991, when he was…

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 R v Lam

Details

AGLC: R v Lam [1999] QCA 299
Case: [1999] QCA 299
Decision Date: 30/07/1999

CaseChat Overview and Summary

In the case of R v Lam, the applicant was convicted of trafficking in heroin and subsequently pleaded guilty to one count of the offence. The appeal against sentence was allowed by the Court of Appeal. The primary issue before the court was whether the sentence imposed by the sentencing judge was appropriate given the inaccurate facts presented during the sentencing hearing. The court also needed to determine the correct sentence that should have been imposed considering the applicant's role in the drug trade and his personal circumstances.

The court found that the sentencing judge was misled by inaccurate facts, which warranted the need for a resentencing. The court noted that the applicant, although an addict, was involved in trafficking to support his addiction and was making limited profit from the transactions. The purity of the heroin indicated that the applicant was involved in a higher position in the drug supply chain. The court considered the applicant's lack of prior convictions, his role in the trafficking, and his guilty plea as mitigating factors. The court found that a sentence of 10 years was excessive, and a sentence of nine years' imprisonment was more appropriate. The court also confirmed that the applicant should be eligible for parole after serving half of the sentence.

The final orders of the court were to grant the application for leave to appeal, allow the appeal, and vary the sentence imposed below by substituting a period of nine years' imprisonment for the 10-year term of imprisonment ordered. The sentence was otherwise confirmed.

Orders