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7
Court of Criminal Appeal 6 May 2015

Lam v R; Lam v R

[2015] NSWCCA 87

Drugs
CRIMINAL LAW OFFENDER LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Lam v R; Lam v R [2015] NSWCCA 87
Court: NSW Court of Criminal Appeal
Date: 6 May 2015
Judges: Meagher JA, Schmidt J, Bellew J

Background

Two brothers, referred to here as the elder applicant and the younger applicant, sought leave to appeal sentences imposed in April 2014 by a District Court judge following their guilty pleas to supplying a large commercial quantity of methylamphetamine (over 2,200 grams) under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). That offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years for a mid-range offence.

The methylamphetamine was found in May 2012 at the apartment of a co-offender, where a bedroom had been set up as a drug supply operation. The elder applicant was the older of the two brothers and had a higher role in the drug supply operation. The younger applicant had leased the premises used for supply, took direction from others, and was aged 19 at the time of the offence.

The co-offender, who pleaded guilty separately in April 2013 to the same methylamphetamine supply charge plus an additional possession of heroin offence, received a total sentence of 5 years with a non-parole period of 2 years and 6 months. The elder applicant received 6 years and 9 months (non-parole period of 4 years and 6 months) and the younger applicant received 5 years (non-parole period of 3 years). Both brothers argued their sentences were unjustifiably disparate compared to the co-offender's.

  • Whether each applicant had a justifiable sense of grievance arising from the disparity between his sentence and that imposed on the co-offender.
  • Whether the sentencing judge's findings as to differences in offending, moral culpability, and subjective circumstances were sufficient to justify the apparent gap in sentences.
  • Whether the co-offender's sentence was inadequate, and if so, whether that inadequacy could ground a disparity appeal by the applicants.

Decision

Schmidt J (with whom Meagher JA and Bellew J agreed) framed the central question by reference to Green v The Queen; Quinn v The Queen (2011) 244 CLR 462. That High Court decision confirmed that unjustifiable disparity constitutes an infringement of equal justice and can amount to appealable error, even where the sentence under appeal is not otherwise excessive. However, a court of criminal appeal must have regard to the qualitative and discretionary judgments of the primary judge in distinguishing between co-offenders.

The Court noted that where a sentencing judge is fully aware of the sentences imposed on co-offenders, explains the reasons for departing from them, and reaches those conclusions through legitimate fact-finding, an appellant faces considerable obstacles in establishing disparity. Here, the same judge had sentenced all three offenders and made express findings about the differences between them.

The differences identified included the elder applicant's greater role in the operation and higher moral culpability, alongside his subjective circumstances including drug addiction, depression, and threats he claimed to have faced. The younger applicant's lower culpability and age were reflected in his shorter sentence. The co-offender, by contrast, had received a discount for special circumstances and a different utilitarian discount. Importantly, even if the co-offender's sentence was regarded as inadequate, the Court held that would not, of itself, establish that the applicants had a justifiable sense of grievance. Reducing their sentences further would produce terms disproportionate to the objective and subjective criminality involved.

Orders Made

  • In each case: leave to appeal granted, but the appeal dismissed.

Key Takeaways

  • A finding of unjustifiable disparity requires more than a numerical gap between sentences; the court must assess whether the differences in offending, role, and subjective circumstances sufficiently explain the disparity.
  • Where the same sentencing judge sentences all co-offenders and expressly addresses differences between them, an appellant faces a high threshold in establishing a justifiable sense of grievance.
  • Under Green v The Queen, unjustifiable disparity can constitute appealable error in its own right, but the Court of Criminal Appeal retains a discretion as to whether intervention is warranted.
  • Even if a co-offender's sentence is arguably inadequate, that inadequacy does not automatically entitle other co-offenders to a reduction; further reducing their sentences must not produce a result disproportionate to the criminality involved.
  • Different sentencing outcomes arising from legitimate differences in utilitarian discounts and special circumstances findings do not readily establish that disparity has occurred.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 93TA
- Crimes Act 1914 (Cth), s 16BA
- Criminal Code 1995 (Cth), ss 307.9, 400.6(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- R v Do [2005] NSWCCA 209
- R v Grube [2005] NSWCCA 140
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520