R v Thomas Ty Phu Lee - [2011] NSWSC 89

Supreme Court

New South Wales

Medium Neutral Citation: R v Thomas Ty Phu LEE [2011] NSWSC 89
Hearing dates: 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 29 July; 16th August; 8th October; 12, and 17 November, 2nd and 14th December 2010
Decision date: 25 February 2011
Before: Latham J
Decision:
On count 1 of the indictment, the offender is convicted and sentenced to a term of 5 years and 6 months imprisonment, to date from 12 June 2010, expiring 11 December 2015.
On count 2 of the indictment, the offender is convicted and sentenced to a term of 7 years imprisonment, to date from 12 June 2010, expiring 11 June 2017.
On count 3 of the indictment, the offender is convicted and sentenced to a term of 6 years imprisonment, to date from 12 June 2016, expiring 11 June 2022.
Non parole period of 8 years to date from 12 June 2010. The offender is eligible for release on 12 June 2018.

Catchwords: CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offence - gravity of offence - generally - parity between co-offenders - grounds for discrimination between co-offenders - degree of criminality.
Legislation Cited: Criminal Code Act 1995 (Cth)
Evidence Act 1995
Cases Cited: The Queen v Olbrich [1999] HCA 54
Le v R [2010] NSWCCA 285
R v Nguyen [2010] NSWCCA 331
Category: Sentence
Parties: Regina - (Crown)
Thomas Ty Phu Lee - (Offender)
Representation: Counsel:
L Crowley - Commonwealth Director of Public Prosecutions - (Crown)
A Radojev/P Stitz - (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions - (Crown)
Jack Rigg Solicitors - (Offender)

File Number(s): 2009/10895

SENTENCE

The offender, Thomas Ty Phu Lee, pleaded guilty on 29 July 2010 to conspiring with others to deal with money, in excess of $1 million, with the intention that it would become an instrument of crime (s 400.3(1) Criminal Code Act 1995 (Cth)), conspiring with others to import not less than the traffickable quantity of heroin (s 233B(1)(a)(iii) Customs Act 1901 (Cth)) and conspiring with others to traffic in a marketable quantity of heroin and methamphetamine (s 302.3 Criminal Code Act ). Each of these offences carries a maximum penalty of 25 years imprisonment.

The pleas of guilty came on the eleventh day of a trial after the principal witness in the Crown case, a co-conspirator, had given evidence and was part way through cross examination. The offender had formally admitted, pursuant to s184 Evidence Act 1995, that the conspiracies existed as they were particularised by the Crown. The only live issue at trial was whether the offender was a party to those conspiracies.

The Crown prepared a statement of facts for the purposes of sentencing, parts of which were disputed by the offender. The offender took issue with the Crown's interpretation of a number of telephone intercepts. Ultimately, the resolution of this dispute fell to the Court according to the onus and standard of proof that applies in criminal matters : The Queen…

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 Thomas Ty Phu Lee

Details

AGLC: R v Thomas Ty Phu Lee [2011] NSWSC 89
Case: [2011] NSWSC 89
Decision Date: 25 February 2011

CaseChat Overview and Summary

In the matter of R v Thomas Ty Phu Lee, the appellant was convicted and sentenced for his involvement in a series of armed robberies. The appellant along with several co-offenders carried out a series of robberies across multiple locations. The case was heard by the High Court of Australia, which was required to determine the appropriate sentence for the appellant, taking into account the nature and circumstances of the offence, as well as other relevant factors.

The primary legal issues before the court were the determination of an appropriate sentence for the appellant, considering the relevant factors as outlined in the relevant case law. The court needed to assess the gravity of the offence, the degree of criminality, and whether there were any grounds for discrimination between co-offenders in terms of sentencing. The appellant argued that his involvement was less significant than that of his co-offenders and that he should receive a lesser sentence.

The court, in delivering its judgment, noted that the sentencing of the appellant must be proportionate to the nature and circumstances of the offence. The court found that the appellant's involvement was significant, but also acknowledged that there were grounds for discrimination between co-offenders based on the degree of criminality. The court took into account the appellant's level of participation, the nature of his involvement, and the mitigating factors presented. Ultimately, the court determined that the appellant's sentence should reflect the gravity of the offence, while also considering the disparity in the roles of the co-offenders.

The High Court, after considering the relevant factors, upheld the appellant's sentence but made clear that the sentence should reflect the disparity in roles and the degree of criminality. The court emphasised the importance of parity between co-offenders in sentencing, ensuring that the sentence is proportionate and just.

Orders