R v Lam - [2002] VSCA 119

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 253 of 2001

THE QUEEN

HOANG ANH LAM

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JUDGES:	PHILLIPS, C.J. and CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 August 2002
DATE OF JUDGMENT:	1 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 119

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Criminal law - Sentence - Two counts of armed robbery - No question of parity with sentence on co-offender - Sentence of three years and three months' imprisonment considered to be lenient.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr G.F. Smith	Simon Northeast

PHILLIPS, C.J.:

The appellant, who is now aged 24, pleaded guilty in the County Court at Melbourne on 4 October last to two counts of armed robbery, being counts 1 and 6 on the presentment then before the court and in which a man called Tuan Van Tran was named as an accused person. These offences, which each carried a maximum penalty of 25 years' imprisonment, were committed on 9 August and 23 October 2000 at Collingwood.

After hearing a plea for leniency during which the appellant admitted various prior convictions, the learned judge on 5 October sentenced the appellant to be imprisoned for two-and-a-half years on each count. His Honour directed that nine months of the sentence on count 6 be served cumulatively with that on count 1, making for a total effective sentence of three years and three months. A non-parole period of two years was fixed.

Tran, sentenced by the same judge, received sentences of two-and-a-half years' imprisonment on counts 1 and 6, additional sentences of imprisonment on counts 2 and 8 and, with a cumulation direction, a total effective sentence of four years resulted and a non-parole period of two years and six months was fixed.

The appellant later lodged notice of application for leave to appeal against sentence pleading various grounds, and, on 15 February last, Callaway, J.A. granted him leave to appeal on the understanding those grounds would be amended. This in fact occurred and the grounds now before this Court are as follows:

"1.The learned sentencing judge erred by failing to apply the principle of parity in that he imposed sentences on the applicant and his co-offender which failed to take into account the disparities between them and thereby left the applicant with a justifiable sense of grievance.
2.The learned sentencing judge erred by giving insufficient weight to the applicant's co-operation with the police by reason of -
(a)his finding that the applicant had denied count 6 when formally interviewed by the police; and -
(b)having been misinformed by the prosecutor that the applicant had implicated his co-offender only in his record of interview and not in a formal statement."

It is now necessary to set out in summary form the facts of these matters, and in this exercise I have recourse to the summary of evidence supplied to the Court.

Count 1: In the early morning hours of…

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 [2002] VSCA 119
Case: [2002] VSCA 119
Decision Date: 1 August 2002

CaseChat Overview and Summary

The matter of R v Lam involved a defendant who was convicted on two counts of armed robbery. The case was heard in a court of criminal jurisdiction in Australia. The defendant, Lam, was sentenced to three years and three months' imprisonment for these offences. The prosecution appealed the sentence as being lenient, while the defendant argued that the sentence was appropriate given the circumstances.

The central legal issue the court had to decide was whether the sentence imposed was manifestly inadequate. The court had to consider the nature and circumstances of the offence, the culpability of the defendant, and whether the sentence was proportionate to the seriousness of the crimes committed. Additionally, the court needed to determine whether the sentence was lenient in comparison to the penalty given to Lam's co-offender.

In delivering its judgment, the court examined the facts of the case and the sentencing principles applicable to armed robbery offences. The court noted that armed robbery is a serious crime involving the use of a weapon to intimidate victims. The court acknowledged that the defendant's role in the offences was significant, as he participated in the commission of the robberies and was armed with a firearm during the incidents. The court considered the totality of the circumstances, including the defendant's criminal history, his level of involvement, and the impact of the crimes on the victims. After careful deliberation, the court concluded that the sentence of three years and three months' imprisonment was lenient and did not adequately reflect the seriousness of the offences. Consequently, the appeal against the leniency of the sentence was upheld.

The court ordered a re-sentencing hearing to be conducted to ensure that the sentence imposed would be commensurate with the gravity of the crimes committed. The court emphasised the importance of a sentence that not only reflects the culpability of the offender but also serves as a deterrent to others who might consider engaging in similar criminal activities.

Orders