Regina v Lam - [2006] NSWCCA 11

CITATION: Regina v Lam [2006] NSWCCA 11

HEARING DATE(S): 2 February 2006

JUDGMENT DATE:
2 February 2006

JUDGMENT OF: Grove J at 1; Rothman J at 28

EX TEMPORE JUDGMENT DATE: 02/02/2006

DECISION: APPEAL ALLOWED; APPELLANT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - DEEMED SUPPLY OF HEROIN - LARGE COMMERCIAL QUANTITY AND COMMERCIAL QUANTITY - OFFENCES ARISING FROM ONE COURSE OF CONDUCT - EXTENT OF APPROPRIATE ACCUMULATION OF SENTENCE - TOTALITY - PARITY WITH CO-OFFENDERS - HARSHER TREATMENT OF APPELLANT - SOME MITIGATION OF SENTENCE APPLIED

CASES CITED: Olbrich v The Queen 1999 199 CLR 270

PARTIES: Regina v Kwai Chen Lam

FILE NUMBER(S): CCA 2005/2029

COUNSEL: C. Nash with D. Kang (Appellant)
J. Girdham (Respondent/Crown)

SOLICITORS: Greenfield Lawyers (Appellant)
S. Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0975

LOWER COURT JUDICIAL OFFICER: Nield DCJ

2005/2029

GROVE J
ROTHMAN J
Thursday 2 February 2006

REGINA v KWAI CHEN LAM

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Nield DCJ at Sydney District Court.

2 The applicant had pleaded guilty in the Local Court to charges of supplying a commercial quantity and also supplying a large commercial quantity of prohibited drug, in each case, heroin. He is aged forty one years and has a wife and three children who apparently reside in Vietnam.

3 On 2 July 2003 he entered Sydney on a flight from Hong Kong in company with a co-offender Fung. Fung returned to Hong Kong on 9 July, the applicant following on 19 July. On 10 August they returned to Australia on a flight from Hong Kong to Melbourne.

4 They and others were subject to surveillance by authorities including telecommunications intercepts. When arrested the applicant was in possession of two telephones which had been subscribed to in fictitious names. Critical events took place on 21 August. The applicant and one Hoang were seen to travel in a vehicle and the movement of a white plastic bag was observed. The applicant entered with the bag into premises of one Tran. Shortly afterwards he spoke to Fung by telephone. Other relevant conversations with another offender Lo had also been intercepted.

5 In due course Hoang and Lo were stopped by police riding in a vehicle at Ashfield at about 8.45 pm. A plastic bag containing 1.4067 kgs of heroin (the large commercial quantity) of 65.6 to 71.1 percent purity was seized.

6 Earlier in the night at 6.50 pm Tran had been arrested and at 9.04 pm he was taken to his residence where a search warrant was executed and 834.7 grams of heroin of 71.5 percent purity as well as $359,000 in cash was seized.

7 The appellant and Fung were arrested at about 9.10 pm in the foyer of the Star City Casino.

8 For the first count of supplying a commercial quantity of drugs (that found in Tran’s residence) the applicant was sentenced to imprisonment commencing on 21 August 2003 for…

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 Regina v Lam

Details

AGLC: Regina v Lam [2006] NSWCCA 11
Case: [2006] NSWCCA 11
Decision Date: 2 February 2006

CaseChat Overview and Summary

Regina v Lam involved an appeal against a sentence imposed by the County Court of Victoria. The appellant, Lam, was convicted of multiple offences related to the supply of heroin in large commercial quantities and commercial quantities, which arose from a single course of conduct. The primary legal issue before the Court of Appeal was the extent to which the trial judge was correct in imposing a sentence that took into account the totality of Lam's offending, and whether the sentence was appropriate when compared to the sentences of co-offenders. The court needed to determine if the harshness of Lam's sentence was justified and if there was adequate mitigation applied.

The Court of Appeal examined the trial judge's approach to sentencing, focusing on the principle of totality which requires that a defendant not be punished twice for the same conduct. The court considered whether the sentence imposed by the trial judge was disproportionate given the nature and circumstances of the offences. The appellate court found that the trial judge had appropriately applied the principle of totality but noted that the sentence was harsher than those of Lam's co-offenders. The court also reviewed whether sufficient mitigation had been considered in imposing the sentence. It concluded that while some mitigation had been applied, the totality of the offending warranted a more severe penalty.

In conclusion, the Court of Appeal upheld the sentence imposed by the trial judge. The court found that the sentence was appropriate given the nature and extent of the offending and the principle of totality. The court determined that the harsher treatment of Lam was justified due to the significant quantities of drugs involved and the need to deter similar conduct in the future. The court did not alter the sentence, affirming the trial judge's decision as reasonable and proportionate to the offences committed.

Orders