Lam v R (Cth); Lay v R (Cth); To v R (Cth) [2021] NSWCCA 242

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lam v R (Cth); Lay v R (Cth); To v R (Cth) [2021] NSWCCA 242 Hearing dates: 13 August 2021 Date of orders: 8 October 2021 Decision date: 08 October 2021 Before: Payne JA at [1] Wilson J at [5] Fagan J at [181] Decision: 1 With respect to the applicant Lam: (1) Time in which to apply for leave to appeal is extended until 10 December 2020; (2) Leave to appeal is granted; (3) Appeal is dismissed. 2 With respect to the applicant Lay: (1) Time in which to apply for leave to appeal is extended until 4 May 2021; (2) Leave to appeal on ground 1 is granted; (3) Appeal is dismissed. 3 With respect to the applicant To: (1) Time in which to apply for leave to appeal is extended until 7 April 2020; (2) Leave to appeal is granted; (3) Appeal is dismissed. Catchwords: CRIME – appeal against sentence – Commonwealth offences – possess commercial quantity of a border controlled drug – attempt to possess a commercial quantity of a border controlled drug – aid and abet an attempt to traffic in a commercial quantity of a border controlled drug – sentences imposed in 2014 and 2016 – "Xiao" error – error conceded – requirement to re-exercise the sentencing discretion – application of the parity principle Legislation Cited: Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code Act 1995 (Cth) Cases Cited: Diaz v R [2019] NSWCCA 216 DL v The Queen (2018) 265 CLR 215 at p 224; [2018] HCA 32 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lee v R; Tang v R [2015] NSWCCA 157 TTP v R [2018] NSWCCA 225 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: Proceedings 2012/237226 Chi Man Lam (Applicant) Regina (Crown)