R v Lam - [2002] NSWCCA 190

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Lam [2002] NSWCCA 190

FILE NUMBER(S):
60154/02

HEARING DATE(S): 22/05/02

JUDGMENT DATE: 22/05/2002

PARTIES:
Regina (Cth) v Sik Lam

JUDGMENT OF: Ipp AJA Dunford J Burchett AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0593, 01/11/0594

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

COUNSEL:
K A Chapple (Crown/Appellant)
L Flannery (Respondent)

SOLICITORS:
Commonwealth DPP (Crown/Appellant)
Goh Lawyers (Respondent)

CATCHWORDS:
CRIMINAL LAW - Crown appeal against sentence - respondent convicted of a contravention of s 233B(1)(ca) of the Customs Act 1901 - respondent sentenced to 10 years imprisonment with a non-parole period of 7 1/2 years - whether judge erred in the exercise of sentencing discretion - whether respondent was wrongly sentenced separately for offences under Proceeds of Crime Act 1987 s 82(1) instead of the offences being taken into account when sentencing for offences under the Customs Act s 233B(1)(ca), s 235(2)(c)(i), s 235(2)(ii)(A) - whether sentence manifestly inadequate - whether appellate intervention justified - appeal dismissed.

LEGISLATION CITED:
Customs Act 1901
Proceeds of Crime Act 1987
Crimes Act 1914 (Cth)

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60154/02
IPP AJA
DUNFORD J
BURCHETT AJ
Wednesday 22 May 2002

REGINA (CTH) v Sik LAM

Judgment

IPP AJA: This is a Crown appeal against sentence. The respondent pleaded guilty to and was convicted of a contravention of s 233B(1)(ca) of the Customs Act 1901. The charge involved the respondent being in possession of a prohibited import, namely a commercial quantity of heroin. The quantity concerned was 2.779 kilograms of a substance containing heroin which when analysed was found to contain 1.723 kilograms of heroin.
Schedule 6 of the Customs Act specifies a commercial quantity of heroin as 1.5 kilograms of pure heroin. By s 235(2)(c)(i) of the Customs Act the penalty for contravention of s 235B(1) involving a commercial quantity of heroin is a fine of $750,000 or imprisonment for life or both. As the respondent had a prior conviction for a similar offence he was, by virtue of s 235(2)(ii)(A) liable to the maximum penalty.
Taylor DCJ sentenced the respondent to 10 years imprisonment, commencing on 6 September 2000, with a non-parole period of 7 ½ years to expire on 5 March 2000. His Honour ordered that the respondent be eligible for parole. He said that, pursuant to s 16BA of the Crimes Act 1914 (Cth), he had taken into account two offences committed by the respondent in breach of s 82(1) of the Proceeds of Crime Act 1987.
The Crown submitted that Taylor DCJ erred in two respects:
(a)It was said that Taylor DCJ imposed a sentence so low as to fall outside a proper exercise of sentencing discretion.
(b)It was said further that Taylor DCJ, in effect, imposed a separate sentence on the respondent for the Proceeds of Crime Act offences, instead of merely taking those offences into account when sentencing for the Customs Act offence (as he was required to do).
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 [2002] NSWCCA 190
Case: [2002] NSWCCA 190
Decision Date: 22 May 2002

CaseChat Overview and Summary

In the matter of R v Lam, the respondent was convicted of contravening section 233B(1)(ca) of the Customs Act 1901, along with additional charges under sections 235(2)(c)(i) and 235(2)(ii)(A) of the same Act, and section 82(1) of the Proceeds of Crime Act 1987. The primary dispute in this case centred on the appropriateness of the sentence handed down by the trial judge and whether the respondent was erroneously sentenced separately for the offences under the Proceeds of Crime Act instead of these offences being considered concurrently with the Customs Act offences. The appeal was heard by the Court of Appeal.

The legal issues before the Court were whether the trial judge had erred in the exercise of their sentencing discretion, whether the respondent was improperly sentenced separately for offences under the Proceeds of Crime Act, and whether the sentence was manifestly inadequate. Additionally, the Court considered whether appellate intervention was justified to rectify any perceived errors. The Court was required to carefully scrutinise the sentence in light of the principles of sentencing and the relevant statutory provisions.

The Court found that the trial judge had not erred in their exercise of sentencing discretion. It was determined that the respondent was not wrongly sentenced separately for the offences under the Proceeds of Crime Act. The Court held that the sentence of 10 years imprisonment with a non-parole period of 7 1/2 years was neither manifestly inadequate nor did it warrant appellate intervention. The Court emphasised the trial judge's consideration of all relevant factors, including the severity of the crimes, the respondent's culpability, and the need for deterrence and denunciation. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders