R v Lam - [2006] VSCA 162

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 116 of 2006

THE QUEEN
	v.
KHIEN LAM

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JUDGES:	ASHLEY and REDLICH, JJ.A. and BELL, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2006
DATE OF JUDGMENT:	21 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 162

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Criminal law – Sentence – Reckless endangerment of life – Impromptu race between vehicles driven by appellant and another offender – Two passengers killed after driver of other vehicle lost control of his vehicle – Other driver sentenced for culpable driving – Whether sentencing judge sentenced the appellant as if for culpable driving – Other driver sentenced to three years’ detention in Youth Training Centre – Appellant sentenced to two years’ detention in Youth Training Centre – Whether sentence imposed upon appellant manifestly excessive – Whether impermissible want of parity between sentences imposed upon appellant and other driver – Appeal dismissed.

Crimes Act 1958, ss.22, 318(1)(2)(a),(b).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. O.P. Holdenson, Q.C.	Solicitor for Public Prosecutions
For the Appellant	Ms. F.L. Dalziel	Victoria Legal Aid

ASHLEY, J.A.:

On 7 April 2006, Khien Lam, the appellant, having earlier pleaded guilty to one count that without lawful excuse he recklessly engaged in conduct that placed another person in danger of death, contrary to s.22 of the Crimes Act 1958 (“the Act”), was sentenced to two years detention in a Youth Training Centre.[1] The maximum penalty for that offence is 10 years’ imprisonment. Now he appeals by leave against the sentence passed upon him.
[1]At the same time, the learned judge made ancillary orders also. They are not of present relevance.

The circumstances of the offending

The offending conduct took place in the early hours of 5 October 2004. The circumstances can be shortly explained. The appellant was the driver of a motor vehicle at the time. Samuel Khuat, a friend, was the driver of another motor vehicle. The appellant and Khuat were then aged 18, and were probationary licence holders. There were three passengers in Khuat’s vehicle, and two passengers in the appellant’s vehicle. There was some material which showed that there were other road users in the general vicinity at the time.

The two vehicles travelled west along Dandenong Road, Windsor. They were observed travelling at high speed towards the intersection of Dandenong Road and Chapel Street. Then they were observed to stop – there are traffic lights at that intersection – before accelerating sharply. Then they travelled side by side, very close, and at high speed, along Queens Way – it is the continuation of Dandenong Road, and is a divided highway with three lanes on each side and a central tram line. The drivers were having, as the learned judge who later sentenced each of Khuat and the appellant found, an impromptu race; or at least were “pushing each other to see who could go faster or who would slow down first.”

What next happened was that Khuat lost control of his motor vehicle. Whatever be the…

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 [2006] VSCA 162
Case: [2006] VSCA 162
Decision Date: 21 August 2006

CaseChat Overview and Summary

The case of R v Lam involved the appellant, who had been charged with reckless endangerment of life following an impromptu race between two vehicles. During the race, the driver of the other vehicle lost control, leading to the deaths of two passengers. The driver of the other vehicle was sentenced for culpable driving. The appellant was subsequently sentenced to two years’ detention in a Youth Training Centre. The legal issues before the court were whether the sentencing judge had sentenced the appellant as if for culpable driving, and whether the sentence imposed upon the appellant was manifestly excessive and lacked parity with the sentence imposed upon the other driver.

The court held that the sentencing judge did not sentence the appellant as if for culpable driving. The court found that the judge had correctly identified the appropriate sentencing principles and applied them to the appellant's case. The court also found that the sentence imposed upon the appellant was not manifestly excessive and that there was no impermissible want of parity between the sentences imposed upon the appellant and the other driver. The court found that the sentences were appropriate given the circumstances of the case and the respective roles of the appellant and the other driver in the events that led to the deaths of the two passengers.

The court dismissed the appeal, holding that the sentence imposed upon the appellant was appropriate and that there was no error in the sentencing process. The court found that the appellant had engaged in reckless behaviour that had contributed to the deaths of two passengers, and that the sentence imposed upon him reflected the seriousness of his offending. The court found that the sentence imposed upon the other driver, who had directly caused the deaths of the two passengers, was appropriate given the circumstances of his offending. The court held that there was no need for the sentences to be identical, and that the sentencing judge had correctly applied the relevant sentencing principles in arriving at the sentences imposed upon the appellant and the other driver.

The final orders of the court were that the appeal be dismissed, and that the sentence imposed upon the appellant be upheld. The court found that the sentence imposed upon the appellant was appropriate and that there was no error in the sentencing process. The court found that the appellant had engaged in reckless behaviour that had contributed to the deaths of two passengers, and that the sentence imposed upon him reflected the seriousness of his offending. The court held that the sentence imposed upon the other driver was appropriate given the circumstances of his offending. The court found that there was no need for the sentences to be identical, and that the sentencing judge had correctly applied the relevant sentencing principles in arriving at the sentences imposed upon the appellant and the other driver.

Orders