Yih WEN Lim v The Queen - [2017] VSCA 246

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 109

YIH WEN LIM	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2017
DATE OF JUDGMENT:	8 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 246
JUDGMENT APPEALED FROM:	[2017] VCC 321 (Judge Lawson)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Importing commercial quantity of border controlled drug – Possessing marketable quantity of border controlled drug – Sentence of 10 years’ imprisonment for importation and 5 years for possession, possession sentence to commence 3 years before expiration of importation sentence (TES 12 years) – Manifest excess – Double punishment – Whether drugs subject of possession charge were also subject of importation charge – Drugs subject of possession charge not subject of importation charge – No double punishment – Sentence not manifestly excessive – Application for leave to appeal refused – Criminal Code 1995 (Cth), ss 307.1, 307.6 and 311.4.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Dickinson QC	Gregory J Goold Solicitors
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

BEACH JA:

On 17 March 2017, the applicant pleaded guilty in the County Court to one charge of importing a commercial quantity of a border controlled drug and one charge of possessing a marketable quantity of a border controlled drug. Following a plea hearing, on 30 March 2017, the applicant was sentenced as follows:

Charge

Offence

Max

Penalty

Sentence

Cumulation/

Concurrency

1

Import a commercial quantity of a border controlled drug contrary to s 307.1(1) Criminal Code (Cth) by virtue of s 311.4 of the Criminal Code1995 (Cth)

Life

10 years

Base

(commencement
30 March 2017)

2

Possess a marketable quantity of a border controlled drug contrary to s 307.6(1) Criminal Code 1995 (Cth)

25 years

5 years

2 years

(commences 3 years prior to the expiration of the sentence on charge 1: 30 March 2024)

Total Effective Sentence:

12 years’ imprisonment

Non-Parole Period:

9 years’ imprisonment

Pre-sentence detention declared:

237 days

6AAA Statement: 15 years’ imprisonment with a non-parole period of 12 years’ imprisonment.

The applicant seeks leave to appeal against his sentence on the following grounds:

1.The sentencing judge erred in that she imposed a sentence on count 2 that is manifestly excessive.
2.The sentencing judge erred in that she imposed insufficient concurrency on the sentence imposed on count 2 with the sentence imposed on count 1.
3.The sentencing judge erred in that she failed to order complete concurrency of the sentence imposed on count 2 with the sentence imposed on count 1 given that the drug the subject of count 2 was also the subject of part thereof of count 1. The applicant has been punished twice for the same act.

Circumstances of the offending

On 25 May 2016, Australian Federal Police members executed a search warrant at the applicant’s residential address where he lived with his wife and child. During the search, AFP members…

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 Yih WEN Lim v The Queen

Details

AGLC: Yih WEN Lim v The Queen [2017] VSCA 246
Case: [2017] VSCA 246
Decision Date: 8 September 2017

CaseChat Overview and Summary

The appellant, Yih Wen Lim, appealed against the refusal of the primary judge to grant leave to appeal against his sentence. Lim was convicted of importing a commercial quantity of a border controlled drug and possessing a marketable quantity of a border controlled drug. The primary judge sentenced Lim to 10 years' imprisonment for the importation offence and 5 years for the possession offence, with the possession sentence to commence 3 years before the expiration of the importation sentence, resulting in a total effective sentence of 12 years. Lim contended that the sentence was manifestly excessive and constituted double punishment. He argued that the drugs subject of the possession charge were also subject of the importation charge, which would constitute double punishment. Lim submitted that the sentence was manifestly excessive, and that the primary judge should have imposed a sentence of 6 or 7 years.

The court considered whether the sentence was manifestly excessive and whether it constituted double punishment. The court found that the drugs subject of the possession charge were not subject of the importation charge, and therefore there was no double punishment. The court also found that the sentence was not manifestly excessive, as the primary judge had considered the relevant principles and factors in imposing the sentence. The court noted that the primary judge had given proper weight to the seriousness of the offences, the need for general deterrence, and the appellant's personal circumstances. The court held that the primary judge's sentence was within the range of sentences that a properly directed sentencing judge could have imposed.

The court refused the application for leave to appeal against the sentence. The court found that the primary judge had not erred in law or failed to take into account relevant matters in imposing the sentence. The court held that the appeal against sentence was not an appropriate case for the exercise of the court's discretion to grant leave to appeal. The court noted that the sentence was not manifestly excessive, and that the appellant had not demonstrated that the primary judge's sentence was outside the range of sentences that a properly directed sentencing judge could have imposed. The court held that the application for leave to appeal was without merit.

Orders