R v Low and Low - [2002] VSCA 167

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 12 of 2001

THE QUEEN
	v.
KAR LEONG LOW

No. 13 of 2001

THE QUEEN
	v.
YONG LIANG LOW

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JUDGES:	WINNEKE, P., CALLAWAY, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 October 2002
DATE OF JUDGMENT:	23 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 167

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CRIMINAL LAW - Trafficking in heroin in a quantity not less than the commercial quantity - Possession for sale by two accused - Whether complicity directions necessary - Drugs, Poisons and Controlled Substances Act 1981 ss.5, 70(1), 73(2).

CRIMINAL LAW - Sentencing - Applicants found guilty after trial - Co-offender sentenced six months earlier after plea of guilty - Parity - Whether judge bound to make favourable finding regarding applicants' rehabilitation - Sentence of 16 years' imprisonment with non-parole period of 12½ years severe but not manifestly excessive - Sentencing Act 1991, s. 5(2)(f).

APPEARANCES:

Counsel

Solicitors

For the Crown

Mr T. Gyorffy

K. Robertson, Solicitor for Public Prosecutions

For the Applicant
Kar Leong Low

For the Applicant
Yong Liang Low

Mr D. Grace, Q.C.

Mr P.F. Tehan, Q.C.

Pryles & Defteros

WINNEKE, P.:

For the reasons given by Callaway, J.A., I agree that the application for leave to appeal against conviction by Yong Low should be dismissed. I also agree that the application for leave to appeal against sentence by each of the applicants should be dismissed.

CALLAWAY, J.A.:

After a trial occupying six days, the applicants, who are both aged 36, were found guilty in the County Court on one count of trafficking in heroin in a quantity not less than the commercial quantity prescribed by the Drugs, Poisons and Controlled Substances Act 1981. The applicant Yong Low had one previous conviction in Singapore, but it was of no relevance to sentencing. The applicant Kar Low had no previous convictions. The learned trial judge heard a plea for leniency on behalf of both applicants, who were represented by the same counsel. On 22^nd January 2001 his Honour sentenced each of them to 16 years' imprisonment with a non-parole period of twelve-and-a-half years. A co-offender, Gim Lim, had pleaded guilty. On 14^th July 2000 his Honour had sentenced Lim to 11 years' imprisonment with a non-parole period of eight-and-a-half years. In every case declarations were made regarding pre-sentence detention.

The applicant Yong Low seeks leave to appeal against both conviction and sentence. The applicant Kar Low had intended to follow the same course, but he has abandoned his application for leave to appeal against conviction and perseveres only with his application for leave to appeal against sentence. Before turning to the three applications, I shall say something briefly about the facts.

The applicants and Lim travelled independently from Singapore to Melbourne. Yong Low arrived on 26^th March 1999. Lim, who flew via Malaysia, and Kar Low arrived on 14^th and 21^st April 1999. Kar Low and Lim completed immigration documents stating that they…

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 Low and Low

Details

AGLC: R v Low and Low [2002] VSCA 167
Case: [2002] VSCA 167
Decision Date: 23 October 2002

CaseChat Overview and Summary

Kar Leong Low and Yong Liang Low, who were found guilty of trafficking in heroin, sought leave to appeal their convictions and sentences. The primary legal issue was whether the trial judge failed to give appropriate complicity directions to the jury, and if the sentence imposed was manifestly excessive. The court held that the judge correctly refrained from directing the jury on complicity as the Crown's case was based on possession for sale, not on complicity or joint enterprise. Furthermore, the sentences, although severe, were within the range of permissible discretion, and were not manifestly excessive. Therefore, the applications for leave to appeal both conviction and sentence were dismissed. The court emphasized the importance of an adequate discount for a guilty plea and the breadth of discretion in sentencing, as well as the need for severe sentences in cases involving large-scale drug trafficking.

Orders