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Court of Criminal Appeal 7 July 2021

Lim v R

[2021] NSWCCA 141

DrugsFraud & dishonestyFirearms & weapons
C RIMINAL LAW OFFENCES SENTENCE OFFENDERS WHETHER SENTENCE MANIFESTLY EXCESSIVE OFFENDERS

Citation: Lim v R [2021] NSWCCA 141
Court: NSW Court of Criminal Appeal
Date: 7 July 2021
Judges: Harrison J, Adamson J, Bellew J

Background

The applicant pleaded guilty in the Local Court to a series of drug supply offences, weapons offences, and dealing with the proceeds of crime. The offending included supplying large quantities of methylamphetamine and heroin on multiple occasions in July and August 2018, and was uncovered in part through an undercover police operation. Police also found a taser, an imitation pistol, and approximately $27,685 in cash at the applicant's premises, along with 18 mobile phones.

The applicant was sentenced alongside co-offenders, with the sentencing judge imposing an aggregate sentence of 7 years and 6 months imprisonment with a non-parole period of 4 years and 11 months. The sentence incorporated a 40% discount, reflecting a 25% reduction for early guilty pleas and a further 15% for assistance to authorities.

The applicant sought leave to appeal against the sentence on the grounds that the sentencing judge wrongly assessed his role in the offending, that he suffered a justifiable sense of grievance compared to the sentences imposed on his co-offenders, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the applicant's role in the drug supply offending
  • Whether the disparity between the applicant's sentence and those of his co-offenders gave rise to a justifiable sense of grievance
  • Whether the aggregate sentence was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge was entitled to reject the applicant's characterisation of himself as a mere "housekeeper" in the drug operation. The applicant gave evidence at the sentencing hearing that he simply stored drugs and passed them along when called upon. The sentencing judge found this account to be an understatement of his actual role, and the Court of Criminal Appeal held that finding was open on the evidence. The applicant's premises contained large quantities of drugs, substantial cash, a taser, and an imitation firearm, and he had been directly observed participating in drug transactions.

On the co-offender disparity ground, the Court confirmed the applicable principle: a co-offender's sentence may give rise to a justifiable sense of grievance only where the sentences are disproportionate and not explicable by reference to different degrees of criminality or subjective circumstances. The Court found that the applicant's criminality extended well beyond that of his co-offenders. The scale of the offending at his premises, including the variety and volume of drugs, the cash, and the weapons, distinguished his position markedly from theirs, and the disparity in sentences was therefore justified.

On manifest excess, the Court found nothing to support the contention. The offending was serious, the applicant's subjective case was described as unremarkable, and the sentencing judge had correctly identified the need for both general and personal deterrence. The aggregate sentence, after the 40% discount, was held to be within the proper range.

Orders Made

  • The time to file the notice of application for leave to appeal against sentence was extended to 8 December 2020.
  • Leave to appeal against sentence was granted.
  • The appeal was dismissed.

Key Takeaways

  • A sentencing judge is entitled to reject an offender's own characterisation of their role where the objective facts, including the quantity of drugs, cash, and weapons found at their premises, tell a different story.
  • The Court of Criminal Appeal confirmed that co-offender disparity will not establish a justifiable sense of grievance where the difference in sentences is explicable by a genuine difference in the degree of criminality involved.
  • Under the principle drawn from Postiglione v The Queen and Lowe v The Queen, equal justice requires like cases to be treated alike, but the comparison must be made between offenders whose criminality is truly comparable.
  • In dismissing the appeal, the Court found that an unremarkable subjective case, combined with serious offending and the requirements of general and personal deterrence, supported the aggregate sentence imposed.
  • A 40% sentencing discount, comprising 25% for early guilty pleas and 15% for assistance to authorities, did not make the resulting sentence manifestly excessive on the facts of this case.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 193C(2)

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Goodbun v R [2020] NSWCCA 77
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Li v R [2021] NSWCCA 75
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26