R v Lam

Case [2006] QCA 560 22 December 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Lam [2006] QCA 560

PARTIES:

R
v
LAM, Tyson Tattan
(applicant/appellant)

FILE NO/S:

CA No 308 of 2006
DC No 1428 of 2006
DC No 2992 of 2006
DC No 915 of 2004
DC No 174 of 2001
DC No 3510 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2006

JUDGES:

McMurdo P, Helman and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application for leave to appeal granted
2.    Appeal allowed to the limited extent of setting aside       the order that the applicant serve the balance of the       term of imprisonment imposed on 6 August 2001
3.    Otherwise, the sentences imposed at first instance are       confirmed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - where applicant was with a group of people when he assaulted the complainant in Brisbane CBD - where applicant pleaded guilty to two counts of assault occasioning bodily harm in company and was sentenced to two years imprisonment on each count - where the offences were committed within the extended operational period of a suspended sentence imposed in August 2001 and extended in November 2004 and also within the operational period of a suspended sentence imposed in November 2004 for separate offences - where sentencing judge ordered that applicant serve the balance of the suspended sentences - where applicant seeks leave to appeal claiming that the sentences are manifestly excessive - whether sentencing judge erred in activating the suspended sentence imposed in August 2001 and extended in November 2004 - whether the sentences were manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 147

R v Amituanai [1995] QCA 80; (1995) 78 A Crim R 588, considered

R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, applied

R v Craske[2002] QCA 49; CA No 11 of 2002, 1 March 2002, considered

R v Cuff;ex parte A-G (Qld)[2001] QCA 351; CA No 151 of 2001, 22 August 2001, distinguished

R v McDonald[2005] QCA 383; CA No 236 of 2005, 14 October 2005, distinguished

R v Muller [2005] QCA 417; (2005) 157 A Crim R 104, considered

R v O'Grady; ex parte A-G (Qld) [2003] QCA 137; (2003) 138 A Crim R 273, considered

R v Tupou; ex parte A-G (Qld)[2005] QCA 179; CA No 88 of 2005, 31 May 2005, applied

R v Walsh, Sayer & Thompson; ex parte A-G(Qld) [1998] QCA 217; CA Nos 158, 159 & 160 of 1998, 28 July 1998, considered

COUNSEL:

A Boe (sol) for applicant
M…

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 [2006] QCA 560
Case: [2006] QCA 560
Decision Date: 22 December 2006

CaseChat Overview and Summary

The case of R v Lam involved the appellant who had pleaded guilty to two counts of assault occasioning bodily harm in company. The court sentenced the appellant to two years imprisonment for each count. This appeal concerns the sentencing decision, specifically the activation of a previously suspended sentence and the overall severity of the imposed sentences. The appellant argued that the sentences were manifestly excessive and that the sentencing judge erred in activating the suspended sentence imposed in August 2001 and extended in November 2004. The appellant sought leave to appeal on these grounds.

The legal issues before the court were whether the sentencing judge had erred in activating the suspended sentence and whether the sentences imposed were manifestly excessive. The court considered the principles of sentencing outlined in the Penalties and Sentences Act 1992 (Qld) and relevant case law. The court examined the circumstances of the offence and the appellant's criminal history, including the operational periods of the suspended sentences. The court also considered the precedents set by cases such as R v Tupou; ex parte A-G (Qld) and R v Bryan; ex parte A-G (Qld).

The court granted the application for leave to appeal and allowed the appeal to the limited extent of setting aside the order that the appellant serve the balance of the term of imprisonment imposed on 6 August 2001. The court found that while the original sentences were within the sentencing range for the offences, the activation of the suspended sentence was not justified by the current offences. The court held that the sentences were not manifestly excessive, except for the activation of the earlier suspended sentence. The court confirmed the sentences imposed at first instance, except for the order to serve the balance of the suspended sentence from 2001.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal allowed to the limited extent of setting aside the order that the applicant serve the balance of the term of imprisonment imposed on 6 August 2001

3. Otherwise, the sentences imposed at first instance are confirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Lam [2006] QCA 560

Most Recent Citation

R v Lude; R v Love [2007] QCA 319

Cases citing this decision · 6 of 6 shown

Day v Commissioner of Police
[2017] QDC 77 Para 1

…dered and marked Exhibit 2 and it sets out the basis on which the compensation order was calculated. The prosecutor submitted by reference to R v Lam [2006] QCA 560; R v Ball [2012] QCA 51 and La Carta v Commissioner of Police [2016] QDC 68, that the range was 12 to 18 months.…
Payne v Commissioner of Police
[2015] QDC 294 Para 1

…l from the reasons. She submitted (at 1 – 5 line 17) that “this can be classified as unprovoked gratuitous violence”. She relied upon R v Lam [2006] QCA 560. Giving the judgment of the court, Philippides J (as her Honour then was) described the offending as follows:…
Quartermass v The Commissioner of Police
[2015] QDC 169

…In the case the court referred to a number of other cases, R v Law [2006] QCA 560; R v O’Grady ex parte Attorney-General Queensland [2003] QCA 137; R v Middleton and Johns [2006] QCA 92; and R v Abednego [2004] QCA 377. I’ve taken into account what the court said in Lude and Love about those decisions. In R v Mid…
R v Stone
[2010] QCA 157 Para 1

…sey and Perks; ex parte A-G. [8] On appeal we were referred, in addition, to R v Abednego ,[9] R v McDonald [10] and R v Fortnum & Fortnum .[11] [5][2006] QCA 560. [6][2007] QCA 319. [7][2006] QCA 92. [8][1999] QCA 520. [9][2004] QCA 377. [10][2005] QCA 383. [11][2006] QCA 147.…
R v Hardy
[2009] QDC 413

…R v Lam [2006] QCA 560, cited R v Muller [2006] QCA 147, cited R v Troung [2000] 1 Qd R 663, cited…
R v. Lude; R v Love
[2007] QCA 319 Para 1

…the two applicants were entirely unprovoked. He referred to two decisions of this Court, R v O’Grady; ex parte A-G (Qld) [2003] QCA 137 and R v Lam [2006] QCA 560 as confirming the appropriateness of custodial sentences for offenders involved in crimes of unprovoked gratuitous violence. He took into account the e…

View all 6 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Muller
[2005] QCA 417

…] QCA 351; CA No 151 of 2001, 22 August 2001, distinguished R v McDonald [2005] QCA 383; CA No 236 of 2005, 14 October 2005, distinguished R v Muller [2005] QCA 417; (2005) 157 A Crim R 104, considered R v O'Grady; ex parte A-G (Qld) [2003] QCA 137; (2003) 138 A Crim R 273, considered R v Tupou; ex parte A-G (Qld…
R v McDonald
[2005] QCA 383 Para 1

…While the applicant also referred to the decisions of Cuff and R v McDonald [2005] QCA 383, neither of those cases concerned offending of the type involved in the present case, namely gratuitous street violence against a complete stranger, for which appropriately salutary sentences by way of general deterrence ar…
R v Tupou; Ex Parte A-G (Qld)
[2005] QCA 179 Para 1

…ern sentences for gratuitous violence occurring in the inner city area ( R v Bryan; ex parte A-G (Qld) [2003] QCA 18; R v Tupou; ex parte A-G (Qld) [2005] QCA 179).…
R v O'Grady; ex parte Attorney-General
[2003] QCA 137

…383; CA No 236 of 2005, 14 October 2005, distinguished R v Muller [2005] QCA 417; (2005) 157 A Crim R 104, considered R v O'Grady; ex parte A-G (Qld) [2003] QCA 137; (2003) 138 A Crim R 273, considered R v Tupou; ex parte A-G (Qld) [2005] QCA 179; CA No 88 of 2005, 31 May 2005, applied R v Walsh, Sayer & Thompson…
R v Bryan; ex parte Attorney-General
[2003] QCA 18 Para 1

…fficer. This Court has repeatedly endorsed stern sentences for gratuitous violence occurring in the inner city area ( R v Bryan; ex parte A-G (Qld) [2003] QCA 18; R v Tupou; ex parte A-G (Qld) [2005] QCA 179).…
R v Craske
[2002] QCA 49 Para 1

…he applicant R v O’Grady; ex parte A-G (Qld) (2003) 138 A Crim R 273, R v Walsh, Sayer & Thompson; ex parte A-G (Qld) [1998] QCA 217 and R v Craske [2002] QCA 49 concerned offenders who, unlike the applicant, had no prior criminal history and more promising prospects of rehabilitation.…
R v Cuff; ex parte A-G (Qld)
[2001] QCA 351 Para 1

…eflected genuine remorse, as for example where it is accompanied by an offer of monetary compensation (as in R v Cuff; ex parte A-G (Qld) [2001] QCA 351, to which the applicant referred). Nevertheless, the applicant is entitled to credit for the utilitarian value of his plea and has apparently made some efforts t…
R v Walsh, Sayer and Thompson; ex parte
[1998] QCA 217 Para 1

…tencing range put forward by the applicant R v O’Grady; ex parte A-G (Qld) (2003) 138 A Crim R 273, R v Walsh, Sayer & Thompson; ex parte A-G (Qld) [1998] QCA 217 and R v Craske [2002] QCA 49 concerned offenders who, unlike the applicant, had no prior criminal history and more promising prospects of rehabilitatio…
R v Amituanai
[1995] QCA 80

…gust 2001 and extended in November 2004 - whether the sentences were manifestly excessive Penalties and Sentences Act 1992 (Qld), s 147 R v Amituanai [1995] QCA 80; (1995) 78 A Crim R 588, considered R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, applied R v Craske [2002] QCA 49…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
147 2 mentions (from Para 1)

CITATION:	R v Lam [2006] QCA 560
PARTIES:	R v LAM, Tyson Tattan (applicant/appellant)
FILE NO/S:	CA No 308 of 2006 DC No 1428 of 2006 DC No 2992 of 2006 DC No 915 of 2004 DC No 174 of 2001 DC No 3510 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	8 December 2006
JUDGES:	McMurdo P, Helman and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal granted 2. Appeal allowed to the limited extent of setting aside the order that the applicant serve the balance of the term of imprisonment imposed on 6 August 2001 3. Otherwise, the sentences imposed at first instance are confirmed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - where applicant was with a group of people when he assaulted the complainant in Brisbane CBD - where applicant pleaded guilty to two counts of assault occasioning bodily harm in company and was sentenced to two years imprisonment on each count - where the offences were committed within the extended operational period of a suspended sentence imposed in August 2001 and extended in November 2004 and also within the operational period of a suspended sentence imposed in November 2004 for separate offences - where sentencing judge ordered that applicant serve the balance of the suspended sentences - where applicant seeks leave to appeal claiming that the sentences are manifestly excessive - whether sentencing judge erred in activating the suspended sentence imposed in August 2001 and extended in November 2004 - whether the sentences were manifestly excessive Penalties and Sentences Act 1992 (Qld), s 147 R v Amituanai [1995] QCA 80; (1995) 78 A Crim R 588, considered R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, applied R v Craske[2002] QCA 49; CA No 11 of 2002, 1 March 2002, considered R v Cuff;ex parte A-G (Qld)[2001] QCA 351; CA No 151 of 2001, 22 August 2001, distinguished R v McDonald[2005] QCA 383; CA No 236 of 2005, 14 October 2005, distinguished R v Muller [2005] QCA 417; (2005) 157 A Crim R 104, considered R v O'Grady; ex parte A-G (Qld) [2003] QCA 137; (2003) 138 A Crim R 273, considered R v Tupou; ex parte A-G (Qld)[2005] QCA 179; CA No 88 of 2005, 31 May 2005, applied R v Walsh, Sayer & Thompson; ex parte A-G(Qld) [1998] QCA 217; CA Nos 158, 159 & 160 of 1998, 28 July 1998, considered
COUNSEL:	A Boe (sol) for applicant M…