CDirector of Public Prosecutions v Lam

[2018] VCC 1655

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00202

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

WAN FAI LAM

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 October 2018
CASE MAY BE CITED AS:	CDPP v Lam
MEDIUM NEUTRAL CITATION:	[2018] VCC 1655

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director	Ms N. Kohn
For the Accused	Ms A. Hancock

HIS HONOUR:

1Wan Fai Lam, you have pleaded guilty to 2 charges of importing a commercial quantity of a border controlled drug.  Each charge carries a maximum of life imprisonment.  You have also pleaded guilty to providing a false foreign travel document.  This offence carries a maximum penalty of 10 years imprisonment.

2You have no prior convictions and no subsequent matters or matters outstanding.

3The Commonwealth Director of Public Prosecutions tendered a summary prosecution opening on plea as exhibit A.  A summary of your offending is as follows.

4The first charge concerned the importation of two consignments of methylamphetamine.  The first consignment was imported into Australia on 7 October 2016 via DHL Freight Forwarders from Los Angeles in the United States.  The consignment contained two quilt covers.  Inside the quilt covers was a white powder weighing 2016.9 grams.  It was analysed to be methylamphetamine with a pure weight of 1619.5 grams - that is, 80.3% pure.  On that same day, $13,137.95 was deposited into your bank account.

5In a series of intercepted telephone calls, you told an associated person ‘Ip’ that you still had ‘two coming next week’ and you would give some to that person Ip first.  You said that there ‘are three coming they should have arrived yesterday (that is 7 October) but two stuffed up’.  You referred to the boss being worried that they may get into trouble and that you had paid “a young boy” to make the enquiry of DHL on your behalf.

6On 9 October 2016 the person whom the Commonwealth alleged to be “the young boy”, Liu, made a phone call to DHL but was told that the package had not cleared customs.

7Over the next days there were a further series of conversations between you and Liu when you spoke about the boss, the number of packages to arrive and their expected arrival date, the payment due to Liu for his service and making further enquiries of DHL.

8The second consignment within charge one was imported into Australia on
6 November 2016 by DHL Freight Forwarders from the United States. In that package were two bedsheets sets. It further contained 2012 grams of powder with a purity of 80.3%. The weight of pure methyl amphetamine contained within the consignment was 1615.6 grams. The address on the consignment was the address registered on a co-offender’s driver's licence.

9In the lead up to the arrival of this consignment, telephone intercepts recorded you and the co-offender Lau discussing the payment to be made to Lau, the number of packages expected, the details of collecting the packages, payment from the boss and the rental of storage facilities.

10In a conversation with Lau on 19 October 2016, you described “the usual practice” for payment after stock had been collected; that is usually the money arrives in about one week but in your experience there can be a delay in payment of three weeks.

11The second charge of importation concerns another two consignments of methylamphetamine.  The two consignments were imported into Australia on 18 May 2017 by DHL freight forwarders. These consignments arrived from Malaysia.

12The consignments contained 6961.5 g of powder with a purity of 80.3%. The pure weight of the two consignments was 5590 g.

13In the lead up to the importation, you participated in a “dry run” of importation of sex toys. Again, there were a large number of intercepted telephone calls which demonstrated your knowledge of and participation in the importation of these drugs. On 19 December 2016, $8000 was deposited into your bank account. The following day, you rented an office, told your co-offender that you were getting a company stamp, and gave the false name to a customs clearance officer named Marco Lam.

14The third charge arises as you used a false passport as identification in respect to the rental of the office to which I have just referred.

15On 4 May 2017, in a conversation with your co-offender you referred to wanting to have the consignment over and done with so that you could buy a Rolex. You said that you wanted to earn a few tens of thousands of dollars to show off and that you want to earn $80 – 100,000 to start-up a business.

16In further calls on 18 May 2017, your co-offender Ip told you that “your stuff” had not arrived yet and that you thought the boss has lost $400 - 500,000 Australian currency this time. You identified the drug ice and discussed relative Australian and Hong Kong prices per kilogram. You discussed the add-on transaction costs and the ongoing nature of the operation, noting that even with this failure, “they” will try again in six months' time. You said of your own involvement “soon it will be a few years, earn a few tens of thousands from them, then I will be able to open a shop”.

17On 19 May 2017 you contacted DHL. You were advised that the package was with customs at Tullamarine. You asked if that was Australian customs. The DHL representative confirmed that it was.

18On 25 May 2017, you were arrested by AFP members. You told AFP officers that you had a limited knowledge of what was contained in the last parcel.

19You were remanded in custody on that day, and have now spent 503 days in presentence detention.

Analysis of the gravity of your offending

1       It is possible to make a number of observations about your role in and the gravity of the offending from the intercepted conversations.

2       First, it is apparent that you spoke to co-offenders and interested persons about the boss from whom you took instructions. Then, it is apparent that you were directing your co-offenders, Liu and Lau, to do certain things in progressing the importation. Whilst Lau gave you some advice on renting a storage facility on the boss' instructions it is apparent from the whole of the conversations that you directed Lau as to the collection of one consignment and that you were the conduit for his payment. Indeed, you were the conduit from your boss for the payment of all of those others to whom you spoke.

3       In your conversations with the co-offenders, it is apparent that they were required to follow your instructions.

4       Further, in this respect, it appears you had some role in the distribution of the drug after its importation. In the conversation with Ip, you stated that he would be the first to receive some of the product after its importation.

5       You had a further role in renting a storage warehouse, renting an office and arranging a company stamp. You directed others to collect the importation and to make enquiries of the freight forwarders as to the status of each consignment. I note that on one occasion, you were intercepted making enquiries of DHL yourself, but otherwise you had little “front line” exposure to making the enquiries or to collection of the imported goods.

6       This was an international operation on a very large scale. You openly discussed your knowledge of the drug methylamphetamine, its price in Hong Kong and Australia per kilogram, the loss of the consignment and the cost of the loss to your boss; you spoke of your experience of delays in payments to participants, and of your expectation that this was an ongoing operation for years to come.

7       Although it appears that the operation was financed by others, it seems that you received and had an expectation of high reward. There is no evidence that you were otherwise working once you left your hairdressing position in Tasmania to move to Melbourne. You said that you wanted to buy a Rolex watch at the end of one consignment. You told the co-offender that you wanted to make 80 to $100,000 from the business. The rental of a storage warehouse and an office says something of the scale and long-term business plan of this operation.

8       Mr Lee, who appeared on behalf of the Commonwealth, submitted that you should be viewed as the Melbourne-based member of an international trafficking organisation and involved at the highest level in terms of the domestic operation. Ms Hancock, who appeared on your behalf, resisted such a classification.

9       Ultimately, there is no need for me to make the precise classification urged by the Crown. From the observations I have already made about your role, each of which has been drawn directly from your intercepted conversations, it is possible to simply say that you were managing/coordinating the importation of a large amount of drugs into Australia and that you were to be rewarded for it. It follows from that that your participation in this offending was at a very high level.

10      Neither of your co-offenders, Liu or Lau, have yet been dealt with and are both facing trial in the future.

11      I now turn to other aspects of the gravity of the offending. I note that overall, you managed the importation of over 8.8 kilograms of pure methylamphetamine. The overall purity of the drug to be imported was consistently at 80.3%. This represents 11.5 times the threshold commercial quantity. The estimated street value of the total imported drug ranges from just over $2.7 million to just under $5.5 million. It is apparent from your conversation in respect to Charge two that you were aware of the approximate cost of the drug to the syndicate; and that kilos of it were being imported.

12      This is drug importation on a significant scale by a sophisticated international operation. Your participation in the importations lasted over an approximate eight month period.

13      The law requires me to impose a sentence of a severity appropriate in all the circumstances to the offences that you have committed. In order to ensure that you are adequately punished for your offending, I must have regard to the sentencing practices in the courts throughout Australia for this type of offending. I was provided with a number of cases which set out the principles to which I must have regard in arriving at the sentence to impose upon you. I was also provided with tables of comparable cases.

14      The principles for sentencing in cases of importation essentially require that:

(a)      general deterrence is to be given chief weight on sentence and stern punishment will be warranted in almost every case;

(b)      involvement at any level must attract a significant sentence otherwise the interests of deterrence are not served; and

(c)       factors personal to the offender are therefore given less weight than might otherwise be given.

15      The nature and circumstances of your offending are very serious.

16      I can only conclude that you were motivated by profit – in a word, greed. There is no excuse that could ever be offered for acting as you did.

17      The sentence to be imposed for this type of offending must signal to would-be drug importers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment. Involvement at any level in this type of offending must necessarily attract a significant sentence. Your prior good character is of far less weight in your favour for these offences than in the normal course of criminal offending.

18      Principles of deterrence, just punishment, denunciation and protection of the community mean that only a sentence of imprisonment is appropriate on each of these matters. The offence of importing a commercial quantity of a border controlled drug carries the highest maximum penalty available in the laws of Australia – life imprisonment. These instances of importation and your role in them are very serious examples of criminal conduct. Your conduct must be met by stern punishment.

19      I turn now to your personal circumstances.

20      You are 26 years of age and were born in April 1992. You were born and raised in Hong Kong to hard-working parents who did not have much money. You have one older brother who now works as an engineer in Tasmania.

21      Your older brother moved to Australia for his secondary schooling, and you were essentially raised as an only child under the age of seven. You struggled at school and were the subject of bullying. You felt that you let your parents down when compared to your more successful older brother.

22      You commenced using ketamine at aged 14. Notwithstanding your drug use, you managed to complete Year 11 at school and you then completed a hairdressing apprenticeship.

23      You worked as a hairdresser from age 17 to 22 years. After that, you were unable to find further employment.

24      In September 2015 you came to Australia and were sponsored on a skilled migrant visa. Although you worked as a hairdresser and enjoyed your time in Tasmania, you repeatedly failed the English language component and therefore could not meet the requirements of the visa. You started gambling at the casino to escape your feelings of stress, disappointment and loneliness. You also started using cocaine. You concealed both your gambling and drug use from your brother.

25      I was told that you met the connection which led to your offending whilst at that casino. You were left with a debt of $10,000 which you were unable to pay. You told the psychologist Dr Aaron Cunningham that you were also using cocaine at this time and could not pay your living expenses

26      In October 2016 you moved to Melbourne where you hoped to find more opportunities to learn English and to meet the visa requirement.

27      I note that your move to Melbourne coincides with the commencement of offending. It seems implicit from all of the material that your move to Melbourne was at least in part to facilitate these drug importations.

28      I was told that your initial recruitment was motivated by the desire to pay your gambling debts. After that, it was conceded that you were motivated by the money you could make.

29      You were arrested on 25 May 2017. When you were interviewed, you made limited admissions. You have admitted to the use of the false name and the false travel document. Whilst you made some admissions to participation in the importation, you stated that you had only limited knowledge of what was contained in the last consignment.

30      You have used your time on remand as well as you can. You have completed a number of courses with the help of another Cantonese speaking prisoner. You work as a billet in your unit. You are extremely isolated in the prison environment as only one other prisoner speaks Cantonese, and your English skills remain extremely limited. Your brother has visited you twice whilst you have been on remand, and you have regular telephone contact with him, but I accept that you otherwise have little support whilst in custody.

31      Your visa expired in September 2017. You have not made any application to remain in Australia and you are resigned to the fact that you will be deported back to Hong Kong upon the expiration of your sentence. You regret the wasted opportunity of your time in Australia.

32      You were assessed by psychologist Dr Aaron Cunningham in late September 2018. He noted that you told him you are no longer abusing drugs, and although you have found gaol difficult because of the language and cultural isolation, you have adjusted to your surroundings. Dr Cunningham noted that you are anxious to return to the support and structure of your family in Hong Kong and to be in a position to support your parents as they grow older.

33      I was also provided with a letter of remorse from you and with a character reference signed by your brother and parents. I accept that you are genuinely remorseful for your offending. Your plea of guilty was not made at the earliest time. There was a limited committal. Nevertheless, I accept that the plea of guilty in this case has a utilitarian benefit and overall facilitates the course of justice. As such, it must be used to mitigate your sentence.

34      I further accept that you are still relatively young and that overall you have  good prospects for your rehabilitation. Further, as I have already indicated, I accept that your time in prison is more burdensome because of your language and cultural isolation, lack of family support and because of the guilt you feel at not being able to support your parents. I also accept that you regret the wasted opportunity of no longer being able to settle in Australia.

35      It was submitted by your counsel that I should have regard to the principle of totality in arriving at an appropriate sentence in this case. Whilst I must have regard to totality, I must also look at the period of time for which you were involved in the offending and the fact that you were willing to continue and/or repeat your role as an essential manager and coordinator after the first two consignments (Charge 1) and with the third and fourth consignments (Charge 2). I have concluded that there must be a measure of cumulation to mark the overall criminal conduct.

36      On Charge 1, the charge of importing a commercial quantity of a border controlled drug, you are convicted and sentenced to seven years' imprisonment.  That sentence commences today.

37      On Charge 2, the charge of importing a commercial quantity of a border controlled drug, you are convicted and sentenced to ten years' imprisonment.  I order that that sentence commences on 10 July 2021.

38      On Charge 3, a charge of providing false travel document you are convicted and sentenced to 12 months' imprisonment.  That sentence commences today.

39      The overall sentence is therefore a sentence of 12 years and nine months' imprisonment.  I order that you serve a minimum period of eight years and four months before you are eligible for parole.

40      I declare the pre-sentence detention of 503 days excluding today reckoned as already served.

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