AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 2 February 2006

Regina v Lam

[2006] NSWCCA 11

Drugs
CRIMINAL LAW AND PROCEDURE DEEMED SUPPLY OF HEROIN TOTALITY PARITY WITH CO OFFENDERS HARSHER TREATMENT OF APPELLANT

Citation: Regina v Lam [2006] NSWCCA 11
Court: NSW Court of Criminal Appeal
Date: 2 February 2006
Judge(s): Grove J; Rothman J

Background

The appellant was a 41-year-old man who pleaded guilty in the Local Court to two offences of deemed supply of heroin: one involving a commercial quantity (834.7 grams at over 71% purity) and one involving a large commercial quantity (1.4067 kilograms at 65–71% purity). Both offences arose from a single operation in Sydney on 21 August 2003, in which the appellant played an organising role.

The appellant had travelled from Hong Kong to Australia on two occasions with a co-offender. Surveillance and telephone intercepts revealed his central involvement in coordinating the delivery of heroin to two other offenders. He was arrested at the Star City Casino foyer shortly after the drug seizures were made.

At first instance, Nield DCJ sentenced the appellant in the District Court to an effective total of 17 years and 6 months imprisonment, with a non-parole period of 12 years and 6 months. The appellant sought leave to appeal on several grounds, including excessive accumulation of sentences, inadequate regard to the totality principle, and unjustified disparity with the sentence received by his co-offender Lo.

  • Whether the sentencing judge gave adequate effect to the principle of totality, given that both offences arose from a single criminal transaction
  • Whether the degree of accumulation of sentences was appropriate in the circumstances
  • Whether the effective sentence was disproportionately harsh compared with the sentence imposed on co-offender Lo, who was convicted of identical offences
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the sentencing judge's approach to accumulation did not adequately reflect the unity of the criminal enterprise. Although his Honour had accepted, at least to some extent, that the two offences related to "one very significant quantity of heroin," the consequential orders effectively treated them as entirely separate events. The second sentence did not commence until approximately five years into the first non-parole period, producing an accumulation the Court considered inconsistent with the findings made.

On parity, the Court accepted that the appellant occupied a higher position in the criminal hierarchy than co-offender Lo, whose role McLoughlin DCJ had found to be "at the lower end of the scale." The Court confirmed there was no basis to sentence the appellant more leniently than Lo. However, the appellant was, in the Court's view, entitled to be aggrieved by the extent of the difference: Lo had received an effective sentence of 11 years with a non-parole period of 7 years (after a successful appeal), while the appellant received 17 years 6 months with a non-parole period of 12 years 6 months, for identical charges.

The Court also noted that although the sentencing judge had found special circumstances (which permits a court to vary the otherwise standard ratio between non-parole period and total sentence), the practical departure from the statutory proportion amounted to only about 3 percent, which the Court considered insufficient. Grove J substituted a total effective term of 14 years with a non-parole period of 10 years, maintaining the findings of special circumstances and preserving the discount for the guilty plea.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court quashed
  • On count one (commercial quantity): imprisonment with a non-parole period of 5 years commencing 21 August 2003, expiring 20 August 2008, and a total term of 8 years commencing 21 August 2003
  • On count two (large commercial quantity): imprisonment with a non-parole period of 7 years commencing 21 August 2006, expiring 20 August 2013, and a total term of 11 years commencing 21 August 2006
  • First date of eligibility for parole specified as 20 August 2013

Key Takeaways

  • Where a sentencing judge accepts that two drug supply offences arise from a single criminal transaction, the structure of the accumulated sentences must actually reflect that finding; an accumulation that treats the offences as entirely separate may be inconsistent with the judge's own reasoning.
  • Parity does not require co-offenders to receive identical sentences where their roles differ, but the extent of any disparity must be proportionate to the differences in culpability. Even a more culpable offender is entitled to have a grossly disproportionate gap addressed on appeal.
  • A finding of special circumstances carries little practical weight if the resulting departure from the statutory non-parole ratio is negligible. The Court of Criminal Appeal reduced the departure from approximately 3 percent to a more meaningful margin.
  • Under Olbrich v The Queen (1999) 199 CLR 270, an offender is to be sentenced for what they have done, not simply for their position in a criminal hierarchy.
  • In dismissing several grounds of appeal, the Court confirmed that a sentencing judge is not obliged to impose sentences in any particular order across counts, nor required to make favourable subjective findings where the evidentiary basis for them is limited.

Legislation and Cases Referenced

Cases:
- Olbrich v The Queen (1999) 199 CLR 270

Legislation:
No specific legislation was cited in the provided text, though the offences related to deemed supply of prohibited drugs (heroin) in commercial and large commercial quantities under NSW drug legislation.