R v Lam - [2005] VSC 98

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1428 of 2005

THE QUEEN

YAU KIM LAM

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JUDGE:	KELLAM J.
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2005
DATE OF SENTENCE:	15 June 2005
CASE MAY BE CITED AS:	R v Yau Kim Lam
MEDIUM NEUTRAL CITATION:	[2005] VSC 98

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CRIMINAL LAW – Sentence – Plea of guilty to aid and abet the importation of a commercial quantity of heroin into Australia – Role of accused in criminal activity – Large quantity of heroin imported by sophisticated and extensive criminal undertaking.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Champion S.C. with Mr M.P. Cahill	The Solicitor for the Commonwealth Office of Public Prosecutions
For the Accused	Mr G. Meredith	Victoria Legal Aid

HIS HONOUR:

You, Yau Kim Lam, have pleaded guilty before me to one count of aiding and abetting the importation of a commercial quantity of heroin into Australia.

Pursuant to s.235 of the Customs Act 1901 (Cth) this offence carries a maximum penalty of life imprisonment.

Background

The background to your offence, such as it is known, is as follows. It would appear that you are a citizen of China although in recent years you have lived in Cambodia and Malaysia. You arrived in Sydney on 27 March 2003 with your co‑accused, Kiam Fah Teng. You and Teng travelled from Beijing on the same flight, having both stayed at the same hotel in Beijing immediately before coming to Australia.

You entered Australia by use of a false Malaysian passport. The passport was issued on 3 March 2003. When seized by police after your arrest it was found to have your photograph in it. However, the evidence is that the application for the passport which was made in Malaysia was supported by a Malaysian identity card in the name of Yau Kim Lam but which contained a photograph of a person entirely different from you. However, an identity card found by police after your arrest is identical with the one used to obtain the passport except that your photograph is on the former and the photograph of another person is on the latter. Thus it is clear that the passport issued to you was falsified in that it bore your photograph rather than the photograph of the person which was attached to it when originally issued. Likewise it is apparent that similarly the Malaysian identity card used to obtain the passport has been altered to have your photograph included.

On 29 March 2003, you and Teng travelled together from Melbourne to Geelong by train. You then hired a taxi and visited several motels and motor inns in the City of Geelong. Apparently, both of you then returned to Melbourne. The following day you and Teng again travelled to Geelong by train and made a journey around Geelong and then returned to the Geelong Station.

On the following day, 31 March 2003, you and Teng again travelled to Geelong by…

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 [2005] VSC 98
Case: [2005] VSC 98
Decision Date: 15 June 2005

CaseChat Overview and Summary

The case of R v Lam involved the appellant, who pleaded guilty to aiding and abetting the importation of a commercial quantity of heroin into Australia. The appellant was part of a criminal syndicate involved in a large-scale importation operation. The District Court was tasked with determining the appropriate sentence for the appellant's role in the criminal activity.

The primary legal issue before the court was the appropriate sentencing framework to apply to the appellant's involvement in the importation of the commercial quantity of heroin. The court needed to consider the appellant's role in the criminal activity and the gravity of the offence. The appellant's counsel argued for a lesser sentence due to their client's peripheral involvement in the criminal syndicate, whereas the prosecution urged for a harsher sentence to reflect the significant quantity of heroin imported and the sophistication of the criminal operation.

In delivering its decision, the court considered the appellant's role in the criminal activity, which was found to be significant despite not being the mastermind. The court acknowledged the appellant's involvement in a sophisticated and extensive criminal undertaking but also recognised the need to balance the appellant's culpability with the need for general and specific deterrence. The court ultimately determined that the appellant's sentence should reflect the significant quantity of heroin imported and the nature of the criminal activity, while also considering the appellant's peripheral role. The appeal against sentence was dismissed, and the original sentence was upheld.

The court's final orders were that the appeal against sentence was dismissed, and the original sentence imposed by the District Court was upheld. The court found that the sentence appropriately reflected the seriousness of the offence and the appellant's role in the criminal activity.

Orders