Lam v R - [2012] NZCA 280

IN THE COURT OF APPEAL OF NEW ZEALAND

CA787/2011
[2012] NZCA 280

BETWEEN KA WING LAM
Appellant

AND THE QUEEN
Respondent

Hearing: 21 June 2012

Court: Randerson, Lang and Clifford JJ

Counsel: N Leader and K M P Noordhof for Appellant
J M Jelas for Respondent

Judgment: 27 June 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe sentence of eight years and six months imprisonment is quashed. A sentence of eight years imprisonment is substituted on each of the four counts of importing methamphetamine and two years imprisonment on the count of possession of methamphetamine for supply. All terms are to be served concurrently. The minimum period of imprisonment of two thirds (five years eight months) is also quashed and a minimum period of imprisonment of 50 per cent (four years) is substituted on each of the importing counts.

REASONS OF THE COURT

(Given by Clifford J)

Introduction

The appellant, Mr Lam, pleaded guilty to four separate charges of importing methamphetamine (weighing some 1.89 kg in total), and one charge of possession of methamphetamine for supply. He was sentenced by Judge Gibson in the District Court at Auckland on 1 November 2011 to eight years and six months imprisonment, and ordered to serve a minimum period of two thirds of that sentence, namely five years and eight months.[1] He now appeals his sentence as being manifestly excessive.

Facts

[1] R v Lam DC Auckland CRI-2011-004-12655, 1 November 2011.

The Judge sentenced Mr Lam on the basis of an agreed summary of facts. This recorded that in early July 2011 Customs intercepted a parcel containing some 650 grams of methamphetamine (described as bath salts) addressed to a Tong Lam at an address in Mt Albert. It would appear that a courier tried to deliver the package to that address, but was unable to do so and left a courier calling card. Mr Lam subsequently arrived at the courier office, produced that calling card and his Hong Kong passport to prove his identity, and uplifted the package. Later that day, the police called at the address in Mt Albert where they located Mr Lam. Mr Lam cooperated with the police, admitted his identity and that he had received the package in question.
The police also found an additional 336 grams of methamphetamine, which Mr Lam admitted having received in similar fashion. Mr Lam also told the police he had received two other courier packages in June, containing 500 and 400 grams of methamphetamine respectively. Other than stating he had unpacked those two earlier packages and weighed them, and that they were no longer in his possession, there is no information in the summary of facts that indicated what he did with, or what happened to, that methamphetamine.
Mr Lam first appeared in Court on 7 July 2011 on two charges of importation and one charge of possession of methamphetamine for supply. Those charges we understand related to the methamphetamine found in Mr Lam’s possession…

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 Lam v R

Details

AGLC: Lam v R [2012] NZCA 280
Case: [2012] NZCA 280
Decision Date: 27 June 2012

CaseChat Overview and Summary

In the case of Lam v R, the appellant, Ka Wing Lam, appealed against the sentence imposed by the District Court in Auckland. Mr Lam pleaded guilty to four charges of importing methamphetamine and one charge of possession of methamphetamine for supply. The District Court sentenced him to eight years and six months imprisonment, with a minimum non-parole period of two thirds of the sentence. Mr Lam appealed the sentence, arguing it was manifestly excessive. The appeal was heard by Randerson, Lang, and Clifford JJ. The primary legal issue was whether the starting point of 17 years identified by the District Court was manifestly excessive. The Court of Appeal determined that the starting point of 16 years identified by the Judge was appropriate, albeit at the upper end of the range, to reflect Mr Lam's overall culpability for the offending. However, the addition of the one year uplift for the possession for supply charge resulted in a sentence that was manifestly excessive. The Court of Appeal quashed the original sentence and imposed a new sentence of eight years imprisonment on each of the four counts of importing methamphetamine and two years imprisonment on the count of possession of methamphetamine for supply, all terms to be served concurrently. The minimum period of imprisonment of two thirds was also quashed and a minimum period of imprisonment of four years (50 per cent) was substituted on each of the importing counts.

Orders