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Lai v The Queen [2021] NSWCCA 217

The offender was sentenced following a plea of guilty to 1 count of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug contrary to ss 11.1(1) and 307.5(1) of the Commonwealth Criminal Code. Offending involved 160.7kg of pure methamphetamine. Original sentence imposed 12 years imprisonment with an 8 year non-parole period. Offender appealed on the basis that there was a lack of parity between the offender’s sentence and that imposed on two co-offenders.

Parity: An offender seeking leave to appeal asserting a parity error faces a considerable obstacle where, as here, all of the offenders were sentenced by same judge. This becomes all the more so when it is evident that the sentencing judge was specifically mindful of the need to apply the parity principle. Though the offending had been performed over a short period of time and was, in an overall sense, less than the co-offenders, the offender’s role in the offending was not less than significant. It was the offender’s role to apply their knowledge and expertise to the task of opening each lathe so that the packages could be removed. While the role did not involve any managerial responsibility or exercise of authority, its importance must not be understated. Offender’s role and expertise were essential to a well organised venture of international drug trafficking. Offender had no justifiable cause for complaint stemming from being isolated from their family as they had come to Australia specifically for the purposes of engaging in the offending. Sentencing judge had correctly taken into account the additional importation offence of co-offender Ngan. The only additional criminality in which Ngan engaged in respect of the importation was liaising with the freight forwarder after the consignment arrived. Any increment to be applied was to be assessed in that context.

Leave to appeal granted. Appeal dismissed.
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