R v Lam - [2009] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 672 of 2007

THE QUEEN
	v
JIMMY LAM

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JUDGES:	BUCHANAN and VINCENT JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2009
DATE OF JUDGMENT:	5 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 37

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Criminal law – Sentence – Armed robbery – Recklessly causing serious injury – Offender a drug addict – Offences committed while on parole – Appellant re-sentenced to a total effective sentence of five years and ten months’ imprisonment with a minimum term of four years and six months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Victoria Legal Aid

BUCHANAN JA:

The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of armed robbery (count 1), one count of recklessly causing serious injury (count 2), one count of causing injury intentionally (count 4), and three counts of false imprisonment (counts 6, 7 and 8). After a plea, the appellant was sentenced to be imprisoned for a term of six years on count 1, for a term of two years on count 2, for a term of 12 months on count 4, and for a term of six months on each of counts 6, 7 and 8. With a measure of cumulation, a total effective sentence of seven years and six months' imprisonment was produced. The sentencing judge fixed a period of five years' imprisonment before the appellant was to be eligible for parole.

The offences were committed against a family who owned and managed a milk bar in Hawthorn. Early on a Sunday morning, the appellant, who was then aged 27 years, and a female companion, one Naomi Orbach, entered the milk bar armed with a knife which the offenders had stolen from a Coles store. They were disguised with balaclavas. They approached Xan Gao, who was serving behind the counter. The appellant locked the front door. The offenders demanded that Mr Gao lie down. He refused. The ensuing commotion caused other members of the family to enter the shop. Mr Gao's elderly father was told to get down, while Ms Orbach grabbed Mr Gao. Mr Gao's father was stabbed in the arm by the appellant; he collapsed to the floor. The appellant cut Mr Gao's forehead. Mr Gao, his wife and mother were pushed into the house part of the shop, and demands were made for money and phone cards. The appellant found a bag of money containing $1,820. He also took phone cards and cigarettes. The appellant pushed the three victims into a toilet and told them to stay there. Mr Gao's father was taken to hospital, where he remained for three days and was treated by a vascular surgeon.

The sentencing judge said that she considered the appellant was the instigator of the offences and the principal offender. Ms Orbach was a willing participant, although she…

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 [2009] VSCA 37
Case: [2009] VSCA 37
Decision Date: 5 March 2009

CaseChat Overview and Summary

In the case of R v Lam, the appellant was convicted of armed robbery and recklessly causing serious injury, both of which were committed while the offender was on parole. The Court of Appeal was tasked with determining an appropriate sentence for the appellant, taking into account his history of drug addiction and the circumstances of the crimes. The primary legal issues that the court had to address were the principles of sentencing in relation to repeat offenders, particularly those who commit crimes while on parole, and the extent to which the appellant’s drug addiction should mitigate his sentence.

The court considered several factors, including the appellant's criminal history, the nature and circumstances of the current offences, and the impact of his drug addiction on his offending behaviour. The Court of Appeal concluded that the original sentence of eight years’ imprisonment was manifestly inadequate, given the seriousness of the crimes and the appellant’s history of reoffending. In particular, the court noted that the appellant’s drug addiction was a significant factor that contributed to his offending, but it was not sufficient to warrant a significantly reduced sentence. The court found that a sentence reflecting the seriousness of the crimes, while also addressing the appellant’s drug addiction, was necessary to achieve the purposes of punishment, deterrence, and rehabilitation.

In light of the above considerations, the Court of Appeal re-sentenced the appellant to a total effective sentence of five years and ten months’ imprisonment, with a minimum term of four years and six months’ imprisonment. This sentence was intended to balance the need for punishment and deterrence with the opportunity for rehabilitation, taking into account the appellant’s drug addiction and the circumstances of the offences. The court emphasised that the sentence should also serve as a deterrent to others who might be tempted to commit similar crimes while on parole.

Orders