R v Yip and Lam - [2010] NSWDC 325

CITATION: R v Yip and Lam [2010] NSWDC 325

HEARING DATE(S): 18 and 19/11/10

JUDGMENT DATE:
14 December 2010

JURISDICTION: Criminal

JUDGMENT OF: Garling DCJ

DECISION: (Yip) Sentenced to a term of imprisonment which consists of a non-parole period of eight years and six months and a total term of thirteen years.
(Lam) Sentenced to a term of imprisonment which consists of a non-parole period of seven years and a total term of eleven years.

CATCHWORDS: CRIMINAL - sentence - trafficking commercial quantity of methylampetamine - 52 kilos - ss 302.2(1) Commonwealth Code - maximum penalty life imprisonment - foreign offenders - difficulty in serving sentence

LEGISLATION CITED: Commonwealth Code Act 1995 ss 302.2(1)
Crimes Act (Commonwealth) 1914

CASES CITED: Hili v The Queen, Jones v The Queen [2010] HCA 45
Maldonado v R [2009] NSWCCA 185
Shen v R [2009] NSWCCA 251
X and Y [2002] NSWCCA 40
Reardon, Michaels and Taylor [2002], NSWCCA 203
Mazzitelli [2002] NSWCCA 436
Leong [2003] NSWCCA 51
Shepherd [2003] NSWCCA 287
El Hani [2004] NSWCCA 162
Twyler and Chalmers [2007] NSWCCA 247
Nguyen and Pham [2010] NSWCCA 238
R v Le [2007] NSWCCA 234

PARTIES: Regina
Wai Kit Yip
Fung Yit Lam

FILE NUMBER(S): 10/19932 (Yip); 10/19990 (Lam)

COUNSEL: Mr. I. Lloyd QC (Yip)
Ms. M Fanning (Lam)

SOLICITORS: Mr. McGuire and Ms. J. Petersen (Crown)

JUDGMENT

1 Wai Kit Yip pleaded guilty to a charge that on 21 January 2010, at Glendenning, he did traffic in a substance, the substance being a controlled drug, namely, methylamphetamine, the quantity trafficked being a commercial quantity contrary to the Commonwealth Criminal Code.

2 Mr Fung Yit Lam pleaded guilty to an identical charge. Each offence carries a maximum penalty of life imprisonment.

3 The facts which I have been provided with are the facts relating to both offences. They are these: Mr Yip and Mr Lam were arrested on 21 January 2010. On 11 January 2010 a shipping container load of car parts arrived at Melbourne from Hong Kong. The shipment was found to have 52 kilograms of crystal methylamphetamine, commonly known as ice, concealed within twenty-five differentials.

4 On 12 January 2010 a lease agreement for an industrial warehouse at Glendenning, New South Wales was signed by an associate of Jackie Gu, a suspected drug supplier. Some $19,000 was paid in cash for rent, bond, fees, et cetera.

5 On 12 January Gu telephoned Ho, who was in Hong Kong, to confirm that the warehouse had been organised. During this judgment I will refer to Jackie Gu as Gu, and to Man Hong Kong as Ho:

Gu said “The bunch of stuff has been received.” Ho said, “So tomorrow someone will see John.” Gu said, “That’s right.” Ho said:

“He seems to be leaving tonight. I heard him say by the time you have finished talking with John the full details need not be reported to me, but you will just notify me regarding the getting together at the table. I will sit with…

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 Yip and Lam

Details

AGLC: R v Yip and Lam [2010] NSWDC 325
Case: [2010] NSWDC 325
Decision Date: 14 December 2010

CaseChat Overview and Summary

The respondents, Yip and Lam, were convicted of trafficking a commercial quantity of methylamphetamine, a Schedule 1 drug under the Commonwealth Code, in the Federal Circuit Court. The primary issue before the court was to determine the appropriate sentences for the respondents given their involvement in the trafficking of 52 kilograms of methylamphetamine. Given the maximum penalty for such an offence under section 302.2(1) of the Commonwealth Code is life imprisonment, the court had to balance the severity of the crime against the potential difficulties in serving such a lengthy sentence, particularly considering the respondents were foreign nationals.

The court considered various factors, including the respondents' roles in the trafficking operation, their backgrounds, and the potential impact of a lengthy sentence on their ability to serve it. The court also took into account the need for deterrence and the protection of the community. Ultimately, the court determined that a non-parole period of eight years and six months for Yip, and seven years for Lam, followed by a total term of thirteen years and eleven years respectively, was appropriate. This sentence reflects the seriousness of the offence while also considering the practicalities of serving such a lengthy term for foreign nationals.

The court concluded that the sentences imposed strike an appropriate balance between the need for punishment and deterrence, and the practical considerations of executing a lengthy sentence for the respondents. The court was satisfied that the sentences would adequately reflect the gravity of the offence while also considering the unique circumstances of the respondents. The final orders were that Yip be sentenced to a non-parole period of eight years and six months and a total term of thirteen years, and Lam to a non-parole period of seven years and a total term of eleven years.

Orders

Orders of the court

(Yip) Sentenced to a term of imprisonment which consists of a non-parole period of eight years and six months and a total term of thirteen years.

(Lam) Sentenced to a term of imprisonment which consists of a non-parole period of seven years and a total term of eleven years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Yip and Lam [2010] NSWDC 325
HEARING DATE(S):	18 and 19/11/10
JUDGMENT DATE:	14 December 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Garling DCJ
DECISION:	(Yip) Sentenced to a term of imprisonment which consists of a non-parole period of eight years and six months and a total term of thirteen years. (Lam) Sentenced to a term of imprisonment which consists of a non-parole period of seven years and a total term of eleven years.
CATCHWORDS:	CRIMINAL - sentence - trafficking commercial quantity of methylampetamine - 52 kilos - ss 302.2(1) Commonwealth Code - maximum penalty life imprisonment - foreign offenders - difficulty in serving sentence
LEGISLATION CITED:	Commonwealth Code Act 1995 ss 302.2(1) Crimes Act (Commonwealth) 1914
CASES CITED:	Hili v The Queen, Jones v The Queen [2010] HCA 45 Maldonado v R [2009] NSWCCA 185 Shen v R [2009] NSWCCA 251 X and Y [2002] NSWCCA 40 Reardon, Michaels and Taylor [2002], NSWCCA 203 Mazzitelli [2002] NSWCCA 436 Leong [2003] NSWCCA 51 Shepherd [2003] NSWCCA 287 El Hani [2004] NSWCCA 162 Twyler and Chalmers [2007] NSWCCA 247 Nguyen and Pham [2010] NSWCCA 238 R v Le [2007] NSWCCA 234
PARTIES:	Regina Wai Kit Yip Fung Yit Lam
FILE NUMBER(S):	10/19932 (Yip); 10/19990 (Lam)
COUNSEL:	Mr. I. Lloyd QC (Yip) Ms. M Fanning (Lam)
SOLICITORS:	Mr. McGuire and Ms. J. Petersen (Crown)