AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 22 May 2002

Regina v Lam

[2002] NSWCCA 190

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE PAROLE PERIOD OF 7 1 2 YEARS WHETHER SENTENCE MANIFESTLY INADEQUATE APPEAL DISMISSED.

Citation: Regina v Lam [2002] NSWCCA 190
Court: Court of Criminal Appeal, New South Wales
Date: 22 May 2002
Judge(s): Ipp AJA, Dunford J, Burchett AJ

Background

The respondent pleaded guilty to possession of a prohibited import, namely a commercial quantity of heroin (1.723 kilograms of pure heroin), in contravention of section 233B(1)(ca) of the Customs Act 1901. The offence arose from a series of clandestine transactions on 4 and 5 September 2000, in which the respondent supplied heroin to a co-accused. Police intercepted telephone calls using code words and observed the arrangements, leading to the respondent's arrest.

The respondent had a prior conviction for a similar offence under the Customs Act in 1991, for which he received a nine-year head sentence with a six-year non-parole period. He committed the current offences less than six months after being released on parole, following breaches of parole conditions that included gambling at the Crown Casino in Melbourne.

Taylor DCJ in the District Court sentenced the respondent to 10 years imprisonment with a non-parole period of 7.5 years, applying a discount of 3.5 years for the plea of guilty and cooperation with authorities. The Crown appealed, arguing the sentence was manifestly inadequate and that the sentencing process was legally flawed.

  • Whether the sentence of 10 years imprisonment with a 7.5-year non-parole period was so low as to fall outside a proper exercise of sentencing discretion, making it manifestly inadequate.
  • Whether Taylor DCJ erred by, in effect, imposing a separate sentence for the Proceeds of Crime Act 1987 (section 82(1)) offences, rather than merely taking those offences into account under section 16BA of the Crimes Act 1914 (Cth) when sentencing for the Customs Act offence.
  • Whether appellate intervention was justified in light of the principles governing Crown appeals against sentence.

Decision

On the first ground, Ipp AJA acknowledged that Taylor DCJ's starting point of 15 years imprisonment (before statutory adjustments and discounts) was too low, and that a more appropriate starting point would have been between 21 and 23 years. However, the Court emphasised that the critical question on a Crown appeal is not whether the starting point was too low, but whether the ultimate sentence imposed fell outside the permissible range of discretion.

Taking into account the required reduction under section 16G of the Crimes Act 1914 (Cth) and the 3.5-year discount for the guilty plea and cooperation with authorities, Ipp AJA concluded that a starting point within the range of 21 to 23 years would not have produced a sufficiently different outcome to justify appellate intervention. The Court also noted that the non-parole period was higher than usual relative to the head sentence. On that basis, the overall sentence was found to be within the permissible range of discretion.

On the second ground concerning the Proceeds of Crime Act offences, Ipp AJA acknowledged that Taylor DCJ's sentencing methodology was difficult to follow and that the judge appeared to treat the proceeds of crime matters as attracting an additional 12 months added to the non-parole period, rather than simply taking those offences into account. The Court found this aspect of the reasoning problematic but ultimately concluded that it did not produce an outcome requiring appellate correction, given the overall sentence was within discretion.

Dunford J agreed the appeal should be dismissed, but expressed hesitation, stating he considered the sentence unduly lenient. He was not, however, persuaded it fell so far outside the permissible range as to justify the Court's intervention. Burchett AJ agreed with Ipp AJA's reasons.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the relevant question on a Crown sentence appeal is not whether the sentencing judge's starting point was erroneous, but whether the ultimate sentence imposed fell outside the permissible range of sentencing discretion.
  • A finding that the starting point was too low does not automatically warrant appellate intervention; the Court must assess the overall result reached after all adjustments and discounts have been applied.
  • Under the principles governing Crown appeals, an appellate court will not intervene merely because it considers the sentence unduly lenient; the sentence must fall so far outside the permissible range as to justify correction.
  • A prior conviction for a materially similar offence, combined with reoffending shortly after release on parole, were identified as serious aggravating features, even though they did not ultimately take the sentence outside the range.
  • The Court noted that an unclear or problematic sentencing methodology in relation to Proceeds of Crime Act offences taken into account under section 16BA of the Crimes Act 1914 (Cth) will not necessarily produce a ground of appellate error if the ultimate sentence, viewed overall, remains within discretion.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B(1)(ca), 235(2)(c)(i), 235(2)(ii)(A)
- Proceeds of Crime Act 1987 (Cth), s 82(1)
- Crimes Act 1914 (Cth), ss 16BA, 16G

Cases:
- R v Thomson [2000] 49 NSWLR 383
- Veen (No 2) v The Queen (1988) 164 CLR 465
- Baumer v The Queen (1988) 166 CLR 51
- R v Hamzy (2000) NSWCCA 539
- The Queen v Olbrich (1999) 199 CLR 270
- Baker v R (2000) NSWCCA 85
- Wong & Leung [2001] HCA 64