R v Lam - [2003] NSWCCA 162

No judgment structure available for this case.

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.

His Honour ordered that the sentences should be served concurrently and continued:

In respect of the first charge on the indictment you are convicted and sentenced to thirteen years and four months imprisonment. … I impose a non-parole period of ten years….

In relation to the second charge on the indictment you are sentenced to ten years imprisonment. … I impose a non-parole period of seven and a half years….

The sentence was adjusted so as to set a single non-parole period and to take into account eight weeks pre-sentence custody which had not previously been taken into account. The applicant was re-sentenced to thirteen years and two months imprisonment for the first count and nine years and ten months imprisonment for the second count. A single non-parole period of nine years and ten months was set.

(Per Sheller JA, Hidden J and Carruthers AJ agreeing):

1. That the sentencing Judge failed to take into account the applicant's plea of guilty and subjective case when setting the head sentences for both the first and second charges. Accordingly, the sentences should be adjusted to nine years and ten months and seven years and four months respectively.

2. That there could be no doubt that the applicant's father was more seriously involved in what took place than the applicant. Any adjustment on account of parity must not be such as results in an inadequate sentence: R v Zabul [2001] NSWCCA 455 affirmed. Accordingly, an appropriate adjustment to allow for the justifiable sense of grievance that the applicant would have felt by virtue of the disparity particularly between the non-parole period imposed on him compared to that imposed on his father would be to reduce the head sentence for the first offence to nine years imprisonment and that for the second offence to seven years imprisonment.

Legislation cited:

Customs Act

1901

Crimes (Sentencing Procedure) Act

1999

Proceeds of Crime Act

1987

Crimes Act

1914 (Cth)

Cases cited:

(1998) 102 A CrimR 44

[2001] NSWCCA 455

(2001) 125 A CrimR 341

ORDERS

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.

**********

60120/03

SHELLER JA
HIDDEN J
CARRUTHERS AJ

Wednesday, 2 July 2003

R v Michael Hok Chung LAM

Judgment

1 SHELLER JA:

Introduction

Customs Act

2 On 20 September 2002 his Honour Judge Taylor sentenced the applicant. For the first count his Honour imposed a sentence of thirteen years and four months imprisonment and set a non-parole period of ten years. For the second count his Honour imposed a sentence of ten years imprisonment and set a non-parole period of seven and a half years. The sentences were ordered to be served concurrently and to commence on 24 April 2002.

3 On 6 March 2003 on an application by the Commonwealth Director of Public Prosecutions pursuant to s42 of the Crimes (Sentencing Procedure) Act 1999 the sentence was adjusted so as to set a single non-parole period as required by the Commonwealth legislation and to take into account eight weeks pre-sentence custody which had not previously been taken into account. The applicant was re-sentenced to thirteen years and two months imprisonment for the first count and nine years and ten months imprisonment for the second count. Both sentences were ordered to commence on 24 April 2002. A single non-parole period of nine years and ten months was set.

4 The maximum penalty in relation to the offence charged under the first count was imprisonment for life and/or a fine of $750,000 and for the second count imprisonment for twenty-five years and/or a fine of $500,000.

5 The applicant seeks leave to appeal against these sentences.

Factual background

6 The facts as found by the sentencing Judge are not in issue. In August 2000 the Australian Federal Police (AFP) began an investigation into the activities of the applicant’s father, Sik Lam (Sik). The investigation established that Sik was in contact with a person subsequently identified as Chi Luong Chung (Chung). The course of events resulted in the arrest and charging on 6 September 2000 of Sik, Chung and the applicant. Sik pleaded guilty to one count of an offence under s233B(1)(c)(a) of the Customs Act and two counts under s82(1) of the Proceeds of Crime Act 1987 and was sentenced by Judge Taylor on 15 February 2002. I will come back to the terms of that sentence. Chung pleaded guilty to one count of an offence under s233B(1)(ca) of the Customs Act and two counts under s81(2) of the Proceeds of Crime Act and was sentenced to a term of nine years imprisonment for the first count and six months concurrent sentence on the other two counts with a non-parole period of six years.

7 Part of the AFP investigation involved the interception of mobile telephone conversations between Sik and Chung on 4 and 5 September 2000 making arrangements to conduct the sale of heroin on 6 September in Burwood. On 6 September AFP officers observed Sik in the car park of the Royal Sheath Hotel at Burwood and then approaching a vehicle in Burwood Road of which the applicant was the driver and sole occupant. After opening the front side door of that vehicle and leaning into it and then closing it Sik was observed to walk away carrying a blue and white Office Works plastic bag.

8 Later Sik was observed to approach a vehicle in Appian Way, Burwood and place the bag in the front seat of that vehicle. Chung was the driver and sole occupant. A conversation between them followed. Sik walked away no longer carrying the blue and white Office Works plastic bag. Sik was apprehended shortly afterwards and found to be carrying the sum of $4,667.20. Later AFP officers stopped the vehicle driven by Chung, who ran from it carrying the blue and white Office Works plastic bag. He was chased and arrested. AFP officers took possession of the bag which was found to contain four blocks of heroin of a bulk weight of 2.779 kgs and a pure weight of 1.723 kgs of heroin. This was the subject of the first count on the indictment against the applicant and the first charges against Sik and Chung. The four blocks were said to have a street value of between $1.476 million and $2.461 million.

9 The applicant was later arrested and found to have an amount of $1,128.19 on his person. $37,005 was found at Chung’s residence and $60,000 at Sik’s residence, the bases of the charges against them under the Proceeds of Crime Act. A search of the applicant’s residence revealed a further 1.801 kgs of heroin with a pure weight of 1.110 kgs the subject of the second count on the indictment. The street value of this was estimated between $951,428 and $1,585,714.

10 In a record of interview on the evening of 6 September 2000 the applicant said he did not see a blue and white bag in his vehicle and did not know where the blue and white bag that his father took from his vehicle had come from. No other person had driven his vehicle in the previous two days.

11 The applicant gave evidence that on 2 September his father telephoned him and said he wanted to leave a bag at the applicant’s house for a few days. The applicant took the bag and put it in a wardrobe at his flat. The following Wednesday Sik telephoned the applicant at work and told him to take four blocks out of it and put them in a bag. He said to put two blocks into another bag. He left work immediately and went home. He opened the bag. He said in evidence “I’ve seen something I haven’t seen before. It was blocks, a lot of blocks, white blocks and two wrapped in papers, the other ones are white blocks. He told me to take those blocks out so I was – I was nervous, I was scared.” He said this was the first time he suspected there was anything illegal associated with the bag. He then left the flat and went to a spot between Burwood and Liverpool Roads where his father told him to go. He said that he had done these things because his father had asked him and he respected his father. He was asked a question “When you received the bag from him on that night, did you know what was in it?” to which he answered “No sir.”

12 Judge Taylor did not accept the applicant’s evidence and said that the following facts were revealed during cross-examination:

· He had an ongoing relationship with his father. He maintained contact but he did not know where his father lived.

· The applicant had two mobile phones. He said one was for his girlfriend in Thailand who complained that when she telephoned him he was engaged on his mobile.

· One of the mobile phone numbers was subscribed in another person’s name.

· He could not remember when a friend gave him the SIM card.

· He could not remember when he obtained the SIM card for the other telephone. (In the sentencing Judge’s view the applicant had a telephone subscribed in someone else’s name to assist him in his criminal activity.)

· He worked with Sunda Furniture under a false name. He said that this was because he was trying to avoid police in relation to a fraud charge.

· He said that he intended to repay the people whom he had defrauded in Bathurst. When it was put to him that it would have been a long time before he had raised the funds which were in excess of $100,000 he said: “No not really because in Sunda Furniture when I was offered a position whatever the turnover that sales consultants made we get 10 per cent of the commission.” He was asked where the money was that he had earned at Sunda Furniture and said that he had spent it. The sentencing Judge did not accept the applicant’s evidence that he had any intention of paying those that he had defrauded.

· When his father telephoned him at work on the Wednesday he told the people at Sunda Furniture that he was going training for a few hours. The sentencing Judge observed that there was no reason to lie if he was simply doing an errand for his father.

· When interviewed by police he misled them. He said he was living with his mother at Dundas. The applicant’s explanation that he thought it correct to give police his “legal address”, that is the address shown on the driver’s licence, was in the sentencing Judge’s view disingenuous. What he was doing was deflecting the police from going to his flat in Parramatta where a quantity of heroin was still in the wardrobe.

· The applicant gave possession of his passport to a Chinese woman he only knew as Sandy who worked at a karaoke bar. He stayed at her house in a spare room from time to time. He did not know her address but gave a description of the area in which she lived. The sentencing Judge said it was inherently unlikely that this was the case.

13 The applicant said that following Sik’s request he took some of the blocks from the bag. As the blocks varied between 173 grams and 707 grams in the sentencing Judge’s view the applicant made a choice as to which blocks were to be selected to meet the order. If the father’s request was as the applicant said then the delivered heroin would have been between 700 grams and 2 kgs. The sentencing Judge said:

“There are so many aspects of the offender’s evidence that are unsatisfactory and inherently unlikely that it is my view that he was not a witness of truth. I am satisfied beyond reasonable doubt that he knew that he was storing the heroin and acted as a warehouse from the time he received the heroin from his father.”

“I am satisfied beyond reasonable doubt that the role of the offender in this transaction was as a warehouser of the heroin in question. This is consistent with the evidence of his father.

As a result of the timing of his arrest and subsequent location of other heroin stored by the offender he is liable to a greater punishment than his father. The warehousing of the drugs was essential and very important to the illegal operation. Accordingly it must attract a significant punishment.”

Sentence

14 The sentencing Judge took account of the plea of guilty which had a utilitarian benefit although made in the face of a very strong Crown case. “Although the plea was not indicated until shortly before October 2001 when the trial was imminent, there was a change in legal representation which affected matters.” The sentencing Judge accepted that the offender indicated that he would plead guilty to authorities at a much earlier time and that his previous legal representatives did not give proper attention to the matter. He said that the discount for the plea of guilty in all the circumstances was at the lower end of the range referred to. His Honour continued under the heading “Parity”:

“[Chung] was sentenced to nine years imprisonment for his role in the transaction. A non-parole period of six years was fixed. That sentencing before a District Court Judge took place on 23 October 2001

Proceeds of Crime Act

R v Zabul

In my opinion I am required to take into account all the objective and subjective circumstances of the case and the fact of the [Chung] and [Sik] sentences but concurrently accept the guidance of the Court of Criminal Appeal in relation to the starting point.

For these reasons the starting point for sentence is imprisonment for twenty years.”

15 His Honour then referred to the importance of general deterrence and turned to the subjective factors.

Psychologist Anthony Diment assesses the offender as clinically anxious and depressed. He notes the offender had a difficult upbringing which entailed strict compliance with his father’s wishes, particularly during his early and later childhood. The psychologist says that it was blind trust in his father which was significant in his actions, leading to his arrest. In my opinion and having regard to the offender’s evidence I do not think he was coerced into this criminal conduct. Nevertheless I accept that his father was a significant influence in his life.

The offender is an intelligent, articulate person who could no doubt have done well, both in his tertiary education, employment and socially. His fraudulent conduct whilst employed as a trainee broker is of concern. There is no suggestion that behaviour was under the influence of his father. Thus far in his life he has chosen to engage in serious criminal conduct. I do not accept his version of involvement in the present offences. In my opinion he chose to involve himself in this most evil trade. Given his age and his academic potential there must be prospects of rehabilitation which I can only regard as modest at the moment.”

16 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.

In respect of the second charge of possession of prohibited import, in my view a sentence of fifteen years is appropriate. I adjust that sentence pursuant to s16G to ten years. The sentence is further adjusted to seven and a half years by reason of the plea of guilty and the other subjective matters I have referred to.

In my view the two offences represent a period of criminality and the sentences should be served concurrently. That there are two offences is associated with the timing of the arrest.

The offender has been in custody on sentence and bail refused in respect of the present matters. In my view his sentence should be backdated to 24 April 2002.

In respect of the first charge on the indictment you are convicted and sentenced to thirteen years and four months imprisonment. [Later amended to thirteen years and two months] Your sentence is taken to have commenced on 24 April 2002. I impose a non-parole period of ten years to expire on 23 April 2012 when you will be eligible for parole. [Later amended to nine years and ten months].

In relation to the second charge on the indictment you are sentenced to ten years imprisonment. [Later amended to nine years and ten months]. Your sentence is taken to have commenced on 24 April 2002. I impose a non-parole period of seven and a half years to expire on 23 October 2010.”

17 It should be observed immediately that the sentences actually imposed appear to be inconsistent with his Honour’s earlier discount for the plea of guilty to ten years on the first count and seven and a half years on the second count. As his first ground of appeal the applicant submitted that the sentencing Judge erred in failing to take into account the applicant’s plea of guilty and subjective case when setting the head sentence. The second ground of appeal was that the applicant had a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon the applicant and those imposed upon his co-offenders.

First ground of appeal

18 As the sentencing Judge noted the Crown appealed against the sentence imposed by his Honour on 15 February 2002 in the case of the applicant’s father, Sik, on the ground of inadequacy. In sentencing Sik Judge Taylor had said that a sentence of fifteen years imprisonment was appropriate for the offences of possession of a prohibited import and then stated that he would adjust that sentence pursuant to s16G of the Crimes Act 1914 (Cth) to ten years. I now quote from the leading judgment given by Ipp AJA in the Court of Criminal Appeal on 22 May 2002 in the Crown appeal. His Honour said:

“17 … At that stage, it seems that the judge had arrived at a head sentence of 10 years.

18 Taylor DCJ proceeded:

‘The sentence is further adjusted to six and a half years by reason of the plea of guilty and the cooperation with authorities. I impose an additional 12 months sentence in total in respect of the two proceeds of crime matters to be added to the non-parole period’.

19 The approach so adopted is difficult to understand. It seems that the learned judge did not reduce the head sentence of 10 years by reason of the plea of guilty and the cooperation with the authorities (as he said he was going to do) but took these matters into account solely when fixing the non-parole period. Presumably, when he had stated that the sentence would be reduced to six and a half years, he meant only that the non-parole period would be fixed at that term.

20 ….

21 In the result, his Honour sentenced the respondent to 10 years imprisonment with a non-parole period of 7½ years. This was the sentence actually pronounced.

…

Proceeds of Crime

25 While I am unable to comprehend the basis of the learned judge’s reasoning in determining the effect of the plea of guilty and cooperation with the authorities, it is plain that he intended to give due credit for these matters in determining the composite sentence. In my view, it is that sentence, looked at in the context of all the relevant circumstances pertaining to the criminality of the respondent’s conduct, that has to be examined in determining the arguments raised in this appeal.”

19 I think for consistency this Court should accept Ipp AJA’s analysis of the sentence though I note that in his remarks on sentence in the present case, Judge Taylor said, in a passage I have quoted, that he sentenced Sik to ten years with a non-parole period of seven and a half years. This may explain why Judge Taylor followed the same approach in the present case but that approach cannot be justified. It seems to me that the applicant’s first ground of appeal is made out. The sentencing Judge, with due respect, failed to take into account the applicant’s plea of guilty and subjective case when setting the head sentence. He sentenced the applicant to thirteen years and four months, amended to two months, imprisonment commencing on 24 April 2002 on the first charge. Consistent with what his Honour had said shortly before this I think it appropriate to adjust that head sentence to take account of the plea of guilty and other subjective matters to which the sentencing Judge referred to nine years and ten months imprisonment. The same error appears with the sentence imposed on the second charge where his Honour imposed a sentence of ten years imprisonment, amended to nine years and ten months, without allowing any discount for the plea of guilty or the subjective matters referred to. For similar reasons I think this should be adjusted, consistent with what his Honour said earlier, to seven years and four months imprisonment. I will return to consider the non-parole period.

Second ground of appeal

20 In Sik’s case, Ipp JA said:

“8 In dealing with the respondent’s role in the dealings with the heroin, Taylor DCJ found that the respondent was a principal. Apart from Chung, the respondent’s son was involved in the supply of the drugs and others may have been involved as well. Taylor DCJ said that the respondent was the person who organised the supply of drugs to Chung, presumably for their distribution. The respondent was the highest in the hierarchy of those involved in the particular transactions and the person most responsible for the relevant arrangements.

Customs Act

10 When the respondent was released on parole in respect of the s233B offence, he very soon committed breaches of parole conditions relating to notification of residence, approval of employment and failing to obtain permission before leaving New South Wales. The latter breach was particularly relevant as it involved visits by him to the Crown Casino in Melbourne. There he gambled and lost large sums of money. These losses caused him once again to embark on a course of drug dealing that in turn led to the sentence imposed by Taylor DCJ. The fact is that the respondent committed the offences less than six months after he was released on parole on 15 March 2000.

11 Prior to Taylor DCJ sentencing the respondent, Chi Luong Chung was sentenced by Coorey DCJ to nine years imprisonment as from 6 September 2000 with a non-parole period of six years. Chung was also sentenced on two proceeds of crime charges to six months imprisonment, to be served concurrently with the principal charge.

12 Taylor DCJ considered that there were two factors that particularly mitigated the criminality of the offence. These were the plea of guilty and the co-operation the respondent had afforded the authorities.

13 Taylor DCJ considered that the respondent should be treated as if he pleaded guilty at the earliest practical opportunity. His Honour noted however that the Crown case was very strong. Nevertheless, he considered that the plea had a utilitarian benefit. He said that the discount for the plea of guilty should be at the lower end of the range.

14 The level of the respondent’s co-operation with the authorities was described by the latter as moderate. Nevertheless, his Honour held that the assistance had been to real effect and the respondent was entitled to a significant discount accordingly. The learned judge observed that the respondent, in co-operating with the authorities, had been motivated partly by self-interest and partly because of despair. He had been frank to the police.”

21 Later in his judgment, Ipp AJA said:

R v Hamzy

The Queen v Olbrich

‘Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a ‘courier’ or a ‘principal’ must not obscure the assessment of what the offender did’.

Veen (No 2)

42 I agree with the Crown’s submissions that the overall effect of the respondent’s conduct demonstrated a degree of criminality that called for a far higher starting point than that adopted by the sentencing judge. I come to this conclusion particularly because of the dominant role the respondent played in the transactions and the fact that he committed the offence so soon after leaving prison. But again, it does not necessarily follow from these matters that the appeal should succeed.

Baker v R

Wong & Leung

‘Appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.’

44 In an effort to demonstrate that there had been appealable error, counsel for the Crown referred to cases where the sentences imposed were arguably far more substantial than those in the present instance. I am, however, not persuaded that the sentence imposed by Taylor DCJ, in the particular circumstances, was below the range.

45 I have said that in my view his Honour’s starting point of 15 years imprisonment was too low. But the fundamental question before this court is whether the ultimate sentence passed was too low. It is not whether the starting point was too low.

46 In my view the starting point should have been between 21 and 23 years. I do not accept that it should have been significantly higher. Although the respondent bore paramount responsibility for the transactions, and although he was high up on the chain of supply, he was not the importer of the heroin, nor could he be described as a person responsible for the storage or distribution or control of large quantities of heroin. Rather, the heroin the subject of the charge must have been acquired by the respondent from such a person. Moreover, while the amount of heroin possessed by the respondent was a commercial quantity, and its value was substantial, the quantity, in relative terms, was not at the upper end of the scale.”

22 In the result this Court, despite indications that the sentencing Judge’s starting point in Sik of fifteen years imprisonment was too low and that Sik’s degree of criminality called for a far higher point than that adopted by the sentencing Judge, concluded that the overall sentence imposed was within discretion, that is to say ten years imprisonment with a non-parole period of seven and a half years.

23 As I have said, appropriately adjusted to take account of the plea and subjective matters referred to the sentences imposed for the first offence should have been nine years and ten months imprisonment and for the second seven years and four months imprisonment.

Conclusion

24 In my opinion, there could be no doubt that the applicant’s father was more seriously involved in what took place on 6 September 2000 than the applicant. Furthermore, Sik had in 1991 been convicted of possession of a trafficable quantity of heroin and after his release on parole on 15 March 2000 was guilty of breaches of parole conditions and within six months committed the further offences. I am quite satisfied that, even after the sentences are adjusted as I have suggested to nine years and ten months for the first offence and seven years and four months for the second offence, the applicant would have a justifiable sense of grievance by virtue of the disparity between those head sentences and that fixed for his father of ten years imprisonment, which took account of two proceeds of crime matters, bearing in mind that the sentences imposed on the applicant took account of two months served. So far as Chung was concerned, although he had previously served five years for supplying heroin a sentence of nine years with a non-parole period of six years was imposed.

25 Any adjustment on account of parity must not be such as results in an inadequate sentence (R v Zabul to which the sentencing Judge referred) for the offences charged. The task is made difficult because the sentence imposed upon Sik, though not as it turned out appealably inadequate, was very low. I am not persuaded that the sentence imposed on Chung requires any adjustment for reason of parity.

26 In my opinion, an appropriate adjustment to allow for a justifiable sense of grievance would be to reduce the head sentence for the first offence to nine years imprisonment and the second to seven years imprisonment to be served concurrently and date from 24 April 2002.

27 A non-parole period within the range of 60 and 60-2/3 per cent of the head sentence has come to be regarded as the norm for Federal offences; Bernier (1998) 102 A CrimR 44 at 49 but compare Sweet (2001) 125 A CrimR 341 at 347-8. Clearly the reduction of the head sentences requires a re-consideration of the non-parole period taking account of eight weeks already served.

28 The sentencing Judge found the applicant not a witness of truth and disbelieved the account he gave of the circumstances surrounding the commission of the offences. The applicant was born on 26 September 1973 and is now aged 29. The sentencing Judge recorded subjective factors to be taken into account on sentencing including the applicant’s intelligence and the influence his father, Sik, had upon him.

29 For purposes of re-sentencing on appeal the applicant relied upon an affidavit by his solicitor, Madeleine Schneider, of 26 May 2003 to which were attached documents obtained as the result of a Freedom of Information request to the Department of Corrective Services and additional documents received from that department. Amongst these is a case officer assessment dated 24 April 2003 in which it is said that the applicant has been of excellent behaviour whilst at the Metropolitan Medical Transient Centre (MMTC). He is said to have worked in areas of a sensitive nature and has never abused the trust placed upon him. He is always polite to people and complies with directions. An educational assessment of 30 April 2003 refers to his enrolment in a Certificate 2 Information Technology and Stress Management course and at Charles Sturt University in a course in Business Studies. He is willing to learn. It is recommended that he undertake more tertiary education.

30 In a letter of 15 May 2003 Christine Bridekirk, who holds the position of Alcohol and Other Drug Worker at MMTC, refers to the applicant’s being selected as one of eight inmates to participate in an alcohol and other drugs peer support programme. To be selected the applicant had to be deemed a good candidate to be a peer supporter, a position of responsibility. He has given an undertaking to agree to work as a peer supporter, has successfully completed a peer support programme and one-day promotion workshops.

31 Rogerio Desousa, the Senior Correctional Officer at MMTC, reports on 28 May 2003 that during the twelve months that the applicant has been at the MMTC he has had an excellent work participation and progress report, is currently employed in the Reception Room of the MMTC and has a positive attitude towards his work, relates well to staff and inmates alike and often works with minimal supervision. He is engaged in education and has undertaken computer courses. Reference is made to his enrolment in a business degree major in Business Studies at Charles Sturt University. Mr Desousa writes: “I am more than happy to suggest that Michael has a positive attitude towards rehabilitation and certainly this will be a benefit to him when he re-enters to community.”

32 This material must be taken into account in determining the length of the appropriate non-parole period. It suggests that the applicant has prospects of rehabilitation which he is striving to achieve and will benefit from a longer period of parole.

33 Taking account of the prospects of rehabilitation, in my opinion, the applicant’s non-parole period should be one of five years and two months. Both the head sentences and the non-parole period will date from 24 April 2002. In fixing both the head sentences and the non-parole period I have taken into account the applicant’s eight weeks pre-sentence custody.

Orders

34 I would propose the following orders:

1. Grant leave to appeal;

2. Appeal allowed;

3. Quash the sentences imposed by his Honour Judge Taylor on 20 September 2002;

35 HIDDEN J: I agree with Sheller JA.

36 CARRUTHERS AJ: I agree with Sheller JA

**********

Last Modified: 07/11/2003

Actions

Download as PDF Download as Word Document

Citations

R v Lam [2003] NSWCCA 162

Most Recent Citation

Rodenburg-Hill v WA Police [2009] WASC 330

Cases Citing This Decision

3

Maldonado v R [2009] NSWCCA 189

I (a child) v The State of Western Australia [2006] WASCA 9

Rodenburg-Hill v WA Police [2009] WASC 330

Cases Cited

4

Statutory Material Cited

1

R v Zabul [2001] NSWCCA 455

Wong v The Queen [2001] HCA 64

R v Olbrich [1999] HCA 54

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