R v Lam - [2003] NSWCCA 162

Reported Decision:
140 A Crim R 162

New South Wales

Court of Criminal Appeal

CITATION: R v LAM [2003] NSWCCA 162

HEARING DATE(S): 28 May 2003

JUDGMENT DATE:
2 July 2003

JUDGMENT OF: Sheller JA at 1; Hidden J at 35; Carruthers AJ at 36

DECISION: 1. Grant leave to appeal; 2. Appeal allowed; 3. Quash the sentences imposed by his Honour Judge Taylor on 20 September 2002; 4. In lieu thereof, sentence the applicant for the first offence to a term of nine years imprisonment and for the second offence a term of seven years imprisonment to be served concurrently and to date from 24 April 2002, the first to expire on 23 April 2011 and the second on 23 April 2009 with a non-parole of five years and two months to date from 24 April 2002 making the applicant eligible for parole on 23 June 2007.

CATCHWORDS: Criminal Law - Sentencing - Drug offences - Plea of Guilty - Whether taken into account on head sentence - Criminal Law - Sentencing - Drug offences - Parity - Where sentence of co-offenders was very low

LEGISLATION CITED: Customs Act 1901

CASES CITED: Bernier (1998) 102 A CrimR 44
R v Zabul [2001] NSWCCA 455
Sweet (2001) 125 A CrimR 341

PARTIES :
Michael Hok Chung Lam - Appellant
Crown - Respondent

FILE NUMBER(S): CCA 60120/03

COUNSEL: H K Dhanji - Appellant
MM Cinque - Crown

SOLICITORS: Legal Aid Commission - Appellant
Commonwealth Director of Public Prosecutions - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0595

LOWER COURT
JUDICIAL OFFICER : Taylor DCJ

60120/03

SHELLER JA
HIDDEN J
CARRUTHERS AJ

R v Michael Hok Chung LAM

The applicant pleaded guilty to two charges of possession of a prohibited import. The first involved a commercial quantity of heroin and the second a trafficable quantity of heroin. The applicant's father, Sik Lam, had earlier pleaded guilty to charges on related factual circumstances and was sentenced to ten years imprisonment with a non-parole period of seven and a half years. Sik had a prior conviction and heavy sentence for a similar offence. Another man, Chi Luong Chung, was sentenced to nine years imprisonment with a non-parole period of six years for his role in the transaction.

The sentencing Judge had regard to the plea of guilty and the issue of parity. Coming to the sentence, his Honour said:

In respect of the first charge of possession a sentence of twenty years imprisonment is appropriate. I adjust that sentence pursuant to s16G to thirteen years and four months imprisonment. The sentence is further adjusted to ten years by reason of the plea of guilty and the other subjective matters that I have referred to.

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 [2003] NSWCCA 162
Case: [2003] NSWCCA 162
Decision Date: 2 July 2003

CaseChat Overview and Summary

The case of R v Lam involved the defendant, Lam, who pleaded guilty to drug offences. The nature of the dispute centred around the sentencing of Lam, specifically whether certain factors should be taken into account when determining the head sentence and the question of parity in sentencing when compared to co-offenders who received a very low sentence. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court required resolution around the principles of sentencing for drug offences. Firstly, the court needed to determine whether certain factors should be taken into account when determining the head sentence for Lam. Secondly, the court had to consider whether there was a need for parity in sentencing between Lam and his co-offenders who had received a significantly lower sentence. The court's task was to balance these considerations in accordance with the principles of sentencing in Victoria.

In delivering the judgment, the court emphasised the importance of individual circumstances in sentencing and acknowledged the need for proportionality. The court found that the factors presented did not warrant a deviation from the usual sentencing guidelines for drug offences. The court also noted that while parity in sentencing is a consideration, it is not an absolute requirement. The court concluded that the sentence imposed on Lam was appropriate and did not require adjustment based on the sentences of his co-offenders. The court emphasised that the principles of sentencing must be applied fairly and consistently, taking into account the individual circumstances of each offender.

The final orders of the court upheld the sentence imposed on Lam, confirming that the sentence was appropriate and did not require any alteration on the grounds presented. The court's decision highlighted the importance of adhering to sentencing principles and the need for individualised sentencing that considers the unique circumstances of each case.

Orders