R v Lam & Parker - [2006] SASC 278

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LAM & PARKER
[2006] SASC 278
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
8 September 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - KIDNAPPING
Appeal by DPP on ground of manifest inadequacy of sentences - respondents charged with aggravated serious criminal trespass in a place of residence, false imprisonment, aggravated robbery and kidnapping - Parker pleaded guilty to all offences while Lam pleaded not guilty but convicted by jury of all offences - sentencing judge's starting point for both respondents was 14 years imprisonment - where all offences part of same episode of offending committed pursuant to joint enterprise - where respondents invaded victim's home armed with gun and tazer - victim's husband tied up after Lam inflicted two electric shocks using tazer - victim bound, blindfolded and kidnapped for ransom with threats upon her life - ransom attempt abandoned and victim located by police early following morning - where sentencing judge considered 10 years imprisonment appropriate in relation to kidnapping of victim and four years imprisonment appropriate for false imprisonment of victim's husband - whether ten years imprisonment inadequate starting point for kidnapping - found, sentences were within the appropriate range of sentences - inappropriate to lay down guidelines and principles for sentencing in present case - Held: application for leave to appeal refused.
Griffiths v R (1977) 137 CLR 293; R v O'Rouke [1997] 1 VR 246, discussed.

R v LAM & PARKER
[2006] SASC 278
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J. This is a prosecution appeal against sentences imposed on the respondents.
The respondents were charged with aggravated serious criminal trespass in a place of residence, false imprisonment, aggravated robbery and kidnapping. The offences were all part of the same episode of offending.
The respondent Parker pleaded guilty to the offences. The respondent Lam pleaded not guilty, but was convicted by a jury of all offences.
The learned sentencing judge considered that, in the case of each respondent, an appropriate starting point for the head sentence for the combined offences was imprisonment for 14 years. After making allowance for time spent in custody in relation to these matters, the trial judge sentenced Lam to imprisonment for twelve years and five months. This was ordered to be served cumulatively upon the unexpired portion of a previous sentence amounting to one year and three months. A non-parole period of nine years and six months was ordered. In the case of Parker, allowance was made for the time spent in custody, and the sentence was also reduced…

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 & Parker

Details

AGLC: R v Lam & Parker [2006] SASC 278
Case: [2006] SASC 278
Decision Date: 8 September 2006

CaseChat Overview and Summary

In the matter of R v Lam & Parker, the appeal was brought by the Director of Public Prosecutions against the sentences imposed on the respondents for their involvement in a series of serious criminal offences. The respondents, Lam and Parker, were charged with aggravated serious criminal trespass in a place of residence, false imprisonment, aggravated robbery, and kidnapping. Parker pleaded guilty to all charges, while Lam was found guilty by a jury on all counts. The crux of the appeal was the contention by the DPP that the sentences were manifestly inadequate, particularly in relation to the kidnapping offence. The sentencing judge had set a starting point of 14 years imprisonment for both respondents, considering their joint involvement in a single episode of criminal activity.

The legal issues before the court included the appropriateness of the starting point for sentencing and whether the sentences imposed were inadequate. The court was tasked with determining if the sentencing judge had erred in setting the starting point and if the sentences were within the appropriate range for the severity of the crimes committed. The court had to consider the nature and circumstances of the offences, including the use of weapons, the level of violence, and the impact on the victims. The sentencing judge had taken into account the totality of the offending, which involved the invasion of a home, the use of a taser, and threats of violence to extort a ransom.

The court examined the arguments put forward by both parties and deliberated on the appropriate range of sentences for the crimes. The judges found that the starting point of 14 years for both respondents was appropriate given the gravity of the offences and the fact they were part of a joint criminal enterprise. The court concluded that the sentences, particularly the 10 years for kidnapping and 4 years for false imprisonment, were within the appropriate range for such serious crimes. The court held that it was inappropriate to lay down specific guidelines or principles for sentencing in this case, as each case must be assessed on its unique circumstances. Ultimately, the application for leave to appeal was refused.

Orders