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Court of Criminal Appeal 2 July 2003

R v LAM

[2003] NSWCCA 162

Also reported as 140 A Crim R 162
Drugs
CRIMINAL LAW SENTENCING DRUG OFFENCES PLEA OF GUILTY CRIMINAL LAW SENTENCING

Citation: R v LAM [2003] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 2 July 2003
Judge(s): Sheller JA; Hidden J; Carruthers AJ

Background

The appellant pleaded guilty in the District Court to two charges of possession of a prohibited import under the Customs Act 1901. The first charge involved 1.723 kg of pure heroin, exceeding the commercial quantity threshold. The second involved 1.110 kg of pure heroin, exceeding the trafficable quantity threshold. Both offences were committed on the same date in September 2000.

The appellant was sentenced by Judge Taylor in September 2002. For the first count, the sentencing judge imposed thirteen years and four months imprisonment with a ten-year non-parole period. For the second count, he imposed ten years with a seven-and-a-half-year non-parole period. Both sentences were ordered to run concurrently. Following a later application, the sentences were adjusted to thirteen years and two months and nine years and ten months respectively, with a single non-parole period of nine years and ten months.

Two co-offenders had been sentenced for their roles in the same transaction. The appellant's father, who had a prior conviction for a similar offence and was found to be more seriously involved, received ten years with a non-parole period of seven and a half years. A third co-offender received nine years with a non-parole period of six years. The appellant sought leave to appeal on two grounds: that the sentencing judge failed to properly apply the guilty plea discount to the head sentence, and that the disparity between his sentence and those of his co-offenders was unjustifiable.

  • Whether the sentencing judge properly took into account the appellant's plea of guilty and subjective circumstances when fixing the head sentences (as opposed to only when moving from a starting point to a final figure).
  • Whether the disparity between the appellant's sentences and those of his co-offenders, particularly his father, gave rise to a justifiable sense of grievance warranting a parity adjustment.
  • What weight should be given to the appellant's behaviour in custody and prospects of rehabilitation in setting the non-parole period.

Decision

The Court found that the sentencing judge had made a structural error in his sentencing methodology. The judge's remarks showed he had first reduced the starting figures by applying the s 16G adjustment (a statutory reduction applicable to federal offences), and then separately applied a further reduction for the guilty plea. However, the head sentences he ultimately announced were the pre-plea figures, not the reduced figures. In other words, the guilty plea discount was effectively not carried through to the final head sentence.

The Court corrected this error by applying the guilty plea reduction to produce head sentences of nine years and ten months for the first count and seven years and four months for the second.

On parity, the Court accepted that the appellant's father was more seriously involved in the offending. Applying the principle from R v Zabul, the Court noted that any parity adjustment must not produce an inadequate sentence, but that the disparity in non-parole periods between the appellant and his father was sufficient to give rise to a justifiable sense of grievance. The Court reduced the head sentences further: to nine years for the first count and seven years for the second.

On the non-parole period, the Court took into account evidence of the appellant's exemplary conduct in custody, his participation in a peer support programme for alcohol and drug issues, and his enrolment in a university business degree. Those matters pointed to genuine prospects of rehabilitation and supported a longer period on parole. The Court set a non-parole period of five years and two months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Judge Taylor on 20 September 2002 quashed.
  • In lieu thereof: nine years imprisonment for the first offence and seven years imprisonment for the second offence, to be served concurrently, dating from 24 April 2002 (first expiring 23 April 2011; second expiring 23 April 2009).
  • Non-parole period of five years and two months, dating from 24 April 2002, with eligibility for parole on 23 June 2007.

Key Takeaways

  • A sentencing judge must carry a guilty plea discount through to the final head sentence, not merely reference it as a step in the reasoning while leaving the head sentence unchanged.
  • The Court of Criminal Appeal confirmed the principle from R v Zabul that a parity adjustment is available where a co-offender received a significantly lower sentence, but any reduction must not result in a sentence that is inadequate for the offending.
  • Where a co-offender's greater culpability and criminal history are clearly established, the disparity between sentences may be explicable and reduce, but not eliminate, the basis for a parity grievance.
  • Positive conduct in custody, including participation in rehabilitation programmes and pursuit of tertiary education, is a relevant consideration when fixing the non-parole period, and may support a longer period of supervision in the community on parole.
  • Under the federal sentencing regime applicable at the time, the s 16G statutory adjustment and the guilty plea discount operated as distinct steps, and confusing or conflating them could produce a sentencing error reviewable on appeal.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(ca)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 42
- Proceeds of Crime Act 1987 (Cth), ss 81(2), 82(1)
- Crimes Act 1914 (Cth), s 16G

Cases:
- R v Zabul [2001] NSWCCA 455
- Bernier (1998) 102 A Crim R 44
- Sweet (2001) 125 A Crim R 341