R v Nhan Qui Lam - [2007] QSC 137

SUPREME COURT OF QUEENSLAND

QSC 137

CRIMINAL JURISDICTION

FRYBERG J

Indictment No 692 of 2006

THE QUEEN

NHAN QUI LAM

BRISBANE

..DATE 07/06/2007

SENTENCE

HIS HONOUR: The prisoner was sentenced by me on the 15th of August 2006 to imprisonment for one year. At the same time I made an intensive correction order in respect of him. I did those things under sections 112 and 113 of the Penalties and Sentences Act or more accurately I made the intensive correction order under section 112 of the Penalties and Sentences Act and the effect of that order is spelt out in section 113.

The prisoner contravened the first requirement of the order, namely that he not commit another offence during the period of the order, on the 21st of October 2006 by driving a motor vehicle whilst under the influence of liquor. He, therefore, comes before me as a result of having appeared in the Magistrates Court and being convicted of that offence.

It is not altogether clear that an order of committal was made by the Magistrate to bring him before this Court but in any event he turned up and was and is before the Court. A report of his performance has been made by Mr Derrick Spellman, a probation and parole officer. His response to supervision has been poor.

He has failed to report without reasonable excuse on a total of eight occasions. He has failed to attend community service without a reasonable excuse on 16 occasions and I would add there have been a further 13 occasions when he failed to attend community service on which his excuse was accepted.

He has attended community service on only five occasions. He was also ordered to attend for drug testing as directed and has done so on nine occasions when his tests were clear but has failed to attend testing without a reasonable excuse on 13 occasions. His performance description of "poor" is, therefore, well justified.

His criminal history dates back to 2004. He had not served any imprisonment at the time that I imposed the intensive correction order and he is a young man still only 21 years of age. His offences appear to relate to drugs and it seems to be accepted that he, at one stage at least, fell into bad company.

The Crown submits that I should now proceed under section 127 to commit him to prison for the unexpired portion of the term within the meaning of that section. On his behalf Mr Nguyen has submitted that I should instead proceed under section 126 subsection (4) and impose a probation order, the basis being that he is young; residing at home; that his failures to comply have been due to work commitments (he was too tired after long hours of work to attend on those occasions when he should have attended); that he found it difficult to commit to the number of hours required; that he is depressed and suicidal; that he had…

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 Nhan Qui Lam

Details

AGLC: R v Nhan Qui Lam [2007] QSC 137
Case: [2007] QSC 137
Decision Date: 7 June 2007

CaseChat Overview and Summary

In the case of R v Nhan Qui Lam, the defendant, Nhan Qui Lam, appeared before the Supreme Court of Queensland, Fryberg J, to address his breach of an intensive correction order. The defendant had been sentenced to imprisonment for one year and was additionally subjected to an intensive correction order under the Penalties and Sentences Act. However, the defendant violated the order by driving under the influence of liquor on 21st October 2006, leading to his appearance before the court. The Crown proposed that the defendant be committed to prison for the unexpired portion of his original sentence under section 127 of the Penalties and Sentences Act, while the defendant's counsel argued for the imposition of a probation order under section 126(4) of the Act.

The court considered the defendant's poor response to the intensive correction order, including multiple instances of failing to report, attend community service, and comply with drug testing requirements. Despite the defendant's arguments about work commitments, depression, and suicidal thoughts, the court found that there were no ongoing mental health issues and that the defendant had failed to genuinely attempt to better himself. The court also examined the legal structure of intensive correction orders, distinguishing between the imprisonment term and the order itself, and concluded that section 127 did not permit the setting of a parole release date as it merely commits the offender to prison for the unexpired portion of the term. The court rejected the argument that section 130 could revoke the imprisonment term, finding it only relevant to discharging the intensive correction order.

Ultimately, the court determined that committing the defendant to prison for the unexpired portion of his original sentence was the appropriate course of action. The intensive correction order was revoked, and the defendant was committed to prison for 297 days, which represented the unexpired portion of the term to which he was originally sentenced. This decision underscored the court's view that the defendant had failed to respond to the previous opportunity for rehabilitation through the intensive correction order, and thus, a stricter approach was warranted.

Orders