New South Wales Court of Criminal Appeal CITATION: Regina v Lam [2006] NSWCCA 11 HEARING DATE(S): 2 February 2006 JUDGMENT DATE: 2 February 2006 JUDGMENT OF: Grove J at 1; Rothman J at 28 EX TEMPORE JUDGMENT DATE: 02/02/2006 DECISION: APPEAL ALLOWED; APPELLANT RESENTENCED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - DEEMED SUPPLY OF HEROIN - LARGE COMMERCIAL QUANTITY AND COMMERCIAL QUANTITY - OFFENCES ARISING FROM ONE COURSE OF CONDUCT - EXTENT OF APPROPRIATE ACCUMULATION OF SENTENCE - TOTALITY - PARITY WITH CO-OFFENDERS - HARSHER TREATMENT OF APPELLANT - SOME MITIGATION OF SENTENCE APPLIED CASES CITED: Olbrich v The Queen 1999 199 CLR 270 PARTIES: Regina v Kwai Chen Lam FILE NUMBER(S): CCA 2005/2029 COUNSEL: C. Nash with D. Kang (Appellant) J. Girdham (Respondent/Crown) SOLICITORS: Greenfield Lawyers (Appellant) S. Kavanagh (DPP) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0975 LOWER COURT JUDICIAL OFFICER: Nield DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2029 GROVE J ROTHMAN J Thursday 2 February 2006 REGINA v KWAI CHEN LAM Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Nield DCJ at Sydney District Court. 2 The applicant had pleaded guilty in the Local Court to charges of supplying a commercial quantity and also supplying a large commercial quantity of prohibited drug, in each case, heroin. He is aged forty one years and has a wife and three children who apparently reside in Vietnam. 3 On 2 July 2003 he entered Sydney on a flight from Hong Kong in company with a co-offender Fung. Fung returned to Hong Kong on 9 July, the applicant following on 19 July. On 10 August they returned to Australia on a flight from Hong Kong to Melbourne. 4 They and others were subject to surveillance by authorities including telecommunications intercepts. When arrested the applicant was in possession of two telephones which had been subscribed to in fictitious names. Critical events took place on 21 August. The applicant and one Hoang were seen to travel in a vehicle and the movement of a white plastic bag was observed. The applicant entered with the bag into premises of one Tran. Shortly afterwards he spoke to Fung by telephone. Other relevant conversations with another offender Lo had also been intercepted. 5 In due course Hoang and Lo were stopped by police riding in a vehicle at Ashfield at about 8.45 pm. A plastic bag containing 1.4067 kgs of heroin (the large commercial quantity) of 65.6 to 71.1 percent purity was seized. 6 Earlier in the night at 6.50 pm Tran had been arrested and at 9.04 pm he was taken to his residence where a search warrant was executed and 834.7 grams of heroin of 71.5 percent purity as well as $359,000 in cash was seized. 7 The appellant and Fung were arrested at about 9.10 pm in the foyer of the Star City Casino. 8 For the first count of supplying a commercial quantity of drugs (that found in Tran's residence) the applicant was sentenced to imprisonment commencing on 21 August 2003 for nine years four months two weeks with a non parole period of six years eight months two weeks expiring on 4 May 2010. On the second count of supplying a large commercial quantity (that seized from the vehicle occupied by Hoang and Lo) he was sentenced to imprisonment commencing on 7 January 2008 for thirteen years one month two weeks with non parole period of eight years one month two weeks expiring on 20 February 2016. The lastmentioned is the first parole eligibility date. 9 The effective overall sentence amounted to seventeen years six months with a non parole period of twelve years six months. As an issue of parity has been raised, it is convenient to note the situations of co-offenders. 10 We have been informed that Fung pleaded not guilty and any sentence received by her would lack the important element of discount for a plea of guilty. Tran, we are told, pleaded guilty to a lesser amount of drug, presumably that which was seized at his home, being a commercial, but not a large commercial, quantity. 11 Both Hoang and Lo had been dealt with by O'Reilly DCJ and McLoughlin DCJ respectively, prior to the applicant appearing for sentence and Nield DCJ was aware of the circumstances and outcomes of those proceedings. The relevant remarks on sentence are also before this Court. 12 O'Reilly DCJ noted that the Crown accepted that Hoang was an assistant to Fung, Lo and the applicant. He found that he was "well removed from the centre of operation" and subject to the direction of the applicant. As well as discount for the plea of guilty he was given material consideration for assistance to authority. He was charged with one count of being knowingly concerned in the supply of a commercial quantity of drug and received a sentence ultimately reduced to imprisonment for four years with a non parole period of two years. 13 Lo was charged and pleaded guilty to identical counts as those preferred against the applicant. McLoughlin DCJ found that his role was at the lower end of the scale and "could not be considered pivotal". On the charge of supplying the large commercial quantity of heroin Lo was sentenced to imprisonment for ten years six months with a non parole period of seven years, to commence on 21 August 2003, the non parole period expiring on 20 August 2010. On the charge of supplying a commercial quantity of drug, to imprisonment commencing on 21 August 2008 consisting of a total term of six years with a non parole period of four years. This represented an effective sentence of eleven years imprisonment with a non parole period of nine years. 14 However, this Court, differently constituted, varied the orders of McLoughlin DCJ so as to create an effective sentence for Lo of eleven years with a non parole period of seven years. 15 This is to be contrasted with the effective sentence assessed by his Honour for the applicant of a total of seventeen years six months with, after finding special circumstances, a non parole period of twelve years six months. 16 The applicant argues a series of grounds, in short, complaining of the regard paid by his Honour to the principle of totality, parity with the sentences received by Lo both at first instance and later on at appeal, the imposition of sentences by his Honour first for the large commercial quantity followed by the commercial quantity rather than in the other order, the absence of finding that the applicant had good prospects of rehabilitation and was unlikely to re-offend and that the sentences were manifestly excessive. 17 There was no obligation upon his Honour to impose sentences in any particular order and that contention can be rejected without elaboration. Nor was his Honour obliged to make subjective findings favourable to the applicant as suggested. 18 As he observed, he knew little about the applicant. It is true that there is arguable contradiction in his mention of a wife and family in Vietnam and his later statement that he was unable to say whether the applicant had family support there or in Hong Kong or Australia. However, the mere existence of a family is not evidence that that family is supportive and I see no prompt for intervention arising from his Honour's remarks in these regards. That McLoughlin DCJ made favourable findings for Lo based upon broadly similar material is irrelevant. 19 It is convenient to deal with the contentions of the applicant concerning totality and parity together. I find this observation by his Honour somewhat cryptic when he said: "As to totality, I recognize that the offender committed two distinct and different offences, both involving significant quantities of heroin, but I accept that the offences related to one very significant quantity of heroin." 20 He had earlier noted the express submission of counsel that "there was in reality one continuing transaction, that being to supply the total quantity of the heroin" and the passage quoted would seem to represent his Honour's finding in relation to that submission. 21 The effect of his orders for accumulation however, when analysed, would seem to reflect two very separate offences, the second term not commencing until approximately five years of a total non parole period of six years eight months two weeks applicable to the first count had been served. The consequential orders do not appear to take into account the element of unity which the submission of counsel and his Honour's observations suggest had been, at least to an extent, accepted. 22 There can be no argument that it was open to his Honour to determine that the applicant's position in the hierarchy of the criminal enterprise was higher than that of Lo. It was, I would respectfully comment, obviously correct to reject counsel's submission that he should be treated more leniently than Lo, nevertheless the applicant should be sentenced for what he has done, not his position in the hierarchy simpliciter: Olbrich v The Queen 1999 199 CLR 270. 23 Clearly he came to Australia to engage in crime. He made two journeys and although of course he is not charged with importation it is legitimate to consider his intent in entering this country. He was personally involved in the delivery to Tran of the commercial quantity. He was active in the coded telephone communications about the whole of the heroin. He was manifestly an organizer and a person to whom others turned for instructions. 24 However, whilst he cannot claim parity with Lo, he is, in my view, entitled to be aggrieved by the extent of the difference between the heavy effective sentence received by him and that received by Lo for the identical offences, even allowing that their respective conduct may have been at different levels of seriousness. 25 I am also conscious that, although his Honour made a finding of special circumstances, the ultimate overall effect was to depart from the statutory proportion in favour of the applicant by only a little over 3 percent. I would also make a finding of special circumstances for the reasons given by his Honour and continue to apply discount for the plea of guilty. 26 I would substitute an overall effective term consisting of a non parole period of ten years and a total term of fourteen years for the existing specifications of twelve and a half years non parole period and total term of seventeen and a half years. 27 To give effect to those findings I propose the following orders: 1. Application for leave to appeal is granted. 2. Appeal allowed. 3. Sentences imposed in the District Court quashed. 4. In lieu thereof the applicant is sentenced as follows: (a) On count one, for supplying a commercial quantity of prohibited drug to imprisonment consisting of a non parole period of five years commencing on 21 August 2003 and expiring on 20 August 2008, and a total term of eight years commencing on 21 August 2003; (b) On count two, for supplying a large commercial quantity of prohibited drug to imprisonment consisting of a non parole period of seven years commencing on 21 August 2006 and expiring on 20 August 2013, with a total term of eleven years commencing on 21 August 2006. 5. The first date of eligibility for parole is specified as 20 August 2013. 28 ROTHMAN J: I agree with the orders proposed by his Honour and for the reasons expressed. 29 GROVE J: The orders of the Court therefore will be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.