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18
Court of Criminal Appeal 1 May 2014

Lam v R

[2014] NSWCCA 50

Drugs
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUG PARITY SAME JUDGE SENTENCES BOTH OFFENDERS APPEAL GROUND BASED ON LACK OF PARITY

Citation: Lam v R [2014] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 1 May 2014
Judges: RA Hulme J, Davies J, Adamson J

Background

The applicant was convicted by jury of two counts of supplying heroin, arising from two controlled purchases by an undercover officer in May and June 2011. On each occasion, the applicant handed over approximately 3.4 grams of heroin to the undercover officer through an arrangement involving a co-offender. The applicant's own evidence was that she received only $60 per supply.

Judge Bozic sentenced the applicant to concurrent terms with a non-parole period of 18 months on each count. The same judge had earlier sentenced the co-offender, Wei Pan, who pleaded guilty to four counts including ongoing supply, receiving a total effective non-parole period of 15 months (with a 25 per cent discount for an early plea).

The applicant sought leave to appeal on three grounds: that the sentencing judge wrongly reduced the weight given to her good character because the offences involved drug trafficking, that the sentences were manifestly excessive, and that she had a justifiable sense of grievance based on the disparity with the co-offender's sentences.

  • Whether good character should be accorded reduced weight when the offences involve drug supply or trafficking
  • Whether the individual sentences and the total sentence were manifestly excessive
  • Whether a parity argument could be raised on appeal when counsel had conceded at the sentencing hearing that the parity principle was not engaged

Decision

On the good character ground, the Court of Criminal Appeal accepted that the sentencing judge had erred in principle by treating drug trafficking as a category of offence warranting reduced weight for good character. Davies J confirmed that good character is a relevant mitigating factor in all cases, including drug supply offences, and does not carry diminished weight merely because of the nature of the offence. However, the Court found that this error did not produce a sentence that was manifestly excessive, so it did not warrant intervention.

On manifest excess, the Court was not persuaded that the sentences, viewed individually or as a whole, were outside the range appropriate for the objective seriousness of the offending. The ground was dismissed.

On parity, the Court noted a significant procedural obstacle. At the sentencing hearing, the applicant's own counsel had expressly submitted that the parity principle was not engaged and that the co-offender's case should be treated entirely differently. Relying on the principle in Zreika v R [2012] NSWCCA 44, the Court held that a party seeking to resile from a concession made below must demonstrate exceptional circumstances, and no such circumstances were shown here. In any event, Davies J reviewed the sentences on their merits and was not persuaded that any justifiable sense of grievance arose given the meaningful differences between the two cases, including the co-offender's guilty plea and the more extensive charges he faced.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that good character is a relevant mitigating factor in drug supply cases and that a sentencing judge errs in principle by according it reduced weight solely because the offence involves trafficking.
  • An error of principle in the treatment of good character does not automatically warrant intervention; the Court must also be satisfied that the error produced a sentence that was manifestly excessive.
  • Where counsel has expressly conceded at the sentencing hearing that the parity principle is not engaged, exceptional circumstances must be demonstrated before an appellate court will entertain a parity argument on appeal.
  • Meaningful differences between co-offenders, including a guilty plea and a greater number of charges, are relevant to whether a disparity in sentences gives rise to a justifiable sense of grievance.
  • In dismissing the appeal, the Court reinforced that appellate courts are reviewing a discretionary sentencing judgment, not conducting a fresh plea in mitigation, and will not readily entertain arguments that contradict positions previously taken at first instance.

Legislation and Cases Referenced

Cases:
- Athos v R [2013] NSWCCA 205
- Brent Redfern v R [2012] NSWCCA 178
- Loader v R; Dunn v R [2013] NSWCCA 215
- R v Baker [2000] NSWCCA 85
- R v Leroy (1984) 13 A Crim R 469
- R v Swan [2006] NSWCCA 47
- Restuccia v R [2012] NSWCCA 15
- Sinkovich v R [2011] NSWCCA 90
- Van Can Ha [2008] NSWCCA 141
- Zreika v R [2012] NSWCCA 44

Legislation: No specific legislation was cited in the available text.