Director of Public Prosecutions (Cth) v Lau
[2019] VCC 1091
•19 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00203
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HON WING LAU |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 9 May 2019 | |
DATE OF SENTENCE: | 19 July 2019 | |
CASE MAY BE CITED AS: | DPP (Cth) v Lau | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1091 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported – plea of guilty – role of the offender
Legislation Cited: Criminal Code Act 1995 (Cth), s11.2A(1), s11.1(1) and s307.8(1)
Cases Cited:DPP (Cth) v Lam [2018] VCC 1655; Phuong Bich Nguyen v R; Phommalysack v R (2011) 31 VR 673; Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR; Zhao v R [2018] VSCA 267; Wan v R [2019] VSCA 81; Director of Public Prosecutions (DPP) v Za Lian [2019] VSCA 75; Guden v R (2010) 28 VR 288; Konamala v R [2016] VSCA 48; Maybus v R [2017] VSCA 125; Cameron v R (2002) 209 CLR 339; Atholwood v R (1999) 109 A Crim R 465; Phillips v R [2012] VSCA 140
Sentence: Convicted and sentenced to 8 years imprisonment commencing this day; non-parole period of 5 years 6 months; 784 days of pre-sentence detention declared as time already served.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr T Lynch | Commonwealth Office of Public Prosecutions |
| For the Offender | Mr A Jackson | Valos Black & Associates |
HIS HONOUR:
1 Hong Lin Wau, on 9 May 2019 you pleaded guilty to the charge that between 15 October 2016 and 18 May 2017 at Melbourne in Victoria, you attempted to commit an offence with Wan Fai Lam (“Lam”), and unknown others, namely you attempted to possess a substance, being a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity being a commercial quantity.
2 Such offence is contrary to s11.2A(1), s11.1(1) and s307.8(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of life imprisonment.
3 This charge arises out of your involvement in the importation of two consignments of methamphetamine:
(a)the first consignment was from the United States, intercepted on 7 November 2016 (“the first consignment”); and
(b)the second consignment was from Malaysia, intercepted on 16 May 2017 (“the second consignment”)
when acting in a joint criminal enterprise with Lam, who was previously sentenced on 10 October 2018.[1]
[1]DPP (Cth) v Lam [2018] VCC 1655
4 Counsel for the Prosecution tendered a document headed ‘Summary of Prosecution Opening pursuant to s182 of the Criminal Procedure Act 2009’ (exhibit “1”). I was informed by your counsel that you agree with the contents of such document. In particular, I note the following:
· You are forty-two years old, having been born on 30 May 1977. At the time of the subject offending you were thirty-nine years of age.
· The first consignment was intercepted by the Australian Border Force (“ABF”) at Melbourne Airport on 7 November 2016 and was found to contain 1,615.6 grams pure methamphetamine.
The second consignment was intercepted by the ABF at Melbourne Airport on 18 May 2017 and was found to contain 2,793.9 grams of pure methamphetamine.
· The total amount of pure methamphetamine relating to the two consignments is 4,409.5 grams. A commercial quantity of methamphetamine is 750 grams pure.
· The Australian Criminal Intelligence Commission (“ACIC”) lawfully intercepted the mobile telephone services being operated by you and your co-offender Lam.
· Co-offender Lam was arraigned on 8 August 2018 and pleaded guilty to three charges.[2] He was sentenced on 10 October 2018 by his Honour Judge Lyon.
[2]Two charges under s307.1(1) of the Criminal Code Act 1995 (Cth) of importing a commercial quantity of border controlled drugs; one charge under s22(2) Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) for providing a false foreign travel document.
Consignment one
· In relation to the first consignment, ABF officers examined a package at Air Cargo Operations in Melbourne on 7 November 2016. The consignment named the consignor to be Andrew Long, 1307 Palm CA, Garden Grove, and the consignee was recorded as Marcus Lee, 20 Warrs Road, Maribyrnong, Victoria.
· The consignment contents was described as ‘satin bed sheets’ and, upon examination, the consignment was found to contain two plastic-wrapped bedsheet sets, one loose blanket and a curtain pole top. A vacuum-sealed bag was located between each of the plastic-wrapped bedsheet sets and each bag contained crystalline substances which, upon examination, was found to contain a crystalline substance weighing 2,012 grams. Upon analysis it was found to be methamphetamine with a purity value of 80.3 per cent, weighing as I have said 1,615.6 grams.
Consignment two
·In relation to the second consignment, ABF officers examined a package at Air Cargo Operations, Melbourne Airport, on 18 May 2017. The consignment named the consignor to be Mr Jet Li – Green Storage 22-1, JLN Temenggung, 13-19 Seksyen 9 Bandar Mahkota Chrs Selangor 43200 Cheras MALAYSIA, and the consignee was recorded as Michael Jck, 77 Riversdale Road, Camberwell, Vic 3124.
·The consignment contents was described as ‘shopping bags handicraft bags’, and upon examination the consignment was found to contain twenty handbags comprising of five large handbags and fifteen small bags. Concealed within the bags, in the base of the bags within the lining, were vacuum-sealed clear plastic bags containing a white crystalline substance. The white crystalline substance within the consignment was found to weigh 3,497.3 grams. Upon analysis, it was found to be methamphetamine with a purity of 80.3 per cent. The weight of pure methamphetamine in a package was found to be as I have stated 2,793.9 grams.
Opinion of value of methamphetamine seized
·According to the ACIC Illicit Data Report 2015-16, which contains drug pricing data from multiple law-enforcement sources:
(a) 1 kilogram of methamphetamine was selling for between:
(i) $80,000 – $120,000 wholesale value; and
(ii) $250,000 – $500,000 street value.
·Accordingly, the consignments, the subject of this charge, can be estimated to be of the following wholesale street values:
(a) The first consignment – 2,012 grams NET:
(i) potential wholesale value between $160,000 – $240,000
(ii) potential street value between $503,000 – $1,000,600;
(b) The second consignment – 3,479.3 grams NET:
(i) potential wholesale value between $272,000 – $408,000
(ii) potential street value between $869,825 – $1,739,650.
·You were arrested and remanded in custody on 25 May 2017. As at the plea date on 9 May 2019, you had spent 714 days in pre-sentence detention.
·After your arrest, you participated in an interview with police and made the following admissions and denials in relation to the first consignment:
– you stated previously lived at 12 Warrs Road, Maribyrnong (Question 147); and
– you were not aware of any parcel addressed to Marcus Lee at 12 Warrs Road, Maribyrnong (Question 159).
You made the following admissions and denials in relation to the second consignment and the imports generally:
– you attended an office that Lam had rented and you, together, looked at sex toys and then left. You do not know the address of the office (Question 175).
– Lam is also known by the name “Michael”, which Lam’s landlord uses to refer to him (Question 213-214)
– Lam asked you to provide two addresses. You provide your address and the address of a friend (Question 248)
– Lam told you that ‘his boss wanted to send him something.’ (Question 248)
– Lam told you he would pay $1,500 for providing each address (Question 260)
– you never received any payments (Question 260)
– you did not know what would be in the parcel, but Lam ‘said something about prohibited goods’ and that it was ‘just for fun’ (Question 266)
– you did not know what the prohibited imports were (Question 267).
·During the execution of a warrant on 25 May 2017 at 766 Riversdale Road, Camberwell (the residential home of you and Lam), a number of items were seized, including a handwritten note containing phone numbers for customers in the name ‘Michael Jack’.
·During the execution of the search warrant on 25 May 2017 at 8/756 Blackburn Road, Clayton, a number of items were seized, including boxes of sex toys and fabric decorative bags.
5 The Summary of Prosecution Opening (exhibit “A”) sets out various details of the lawful interceptions of a mobile phone service being operated by you and the co-offender, Lam. These interceptions commence on 15 May 2016 and various days thereafter, concluding on 8 May 2017. Some of the intercepted phone conversations relate to the first consignment, whereas other conversations between you and Lam relate to the second consignment. The intercepted phone calls also relate to, what has been referred to by the prosecution, as a “trial run” of importing sex toys.
6 In relation to the first consignment, I set out details of the various conversations as set out in the prosecution opening and of which no issue is taken by those acting on your behalf.
7 15 October 2016
(a) You tell Lam that if he gives this name to you, you are 100 per cent sure that you can receive the thing for Lam;
(b) Lam says at least $1,000 will be given for the address, though he really wants to give $1,500;
(c) Lam says once you know that it has arrived, Lam will get someone to pick it up straight away;
(d) You say that is risky and ask Lam whether payment will be more if you bring it to Lam;
(e) Lam discourages you to do this as Lam himself does not do so;
(f) You say you have to bring it to Lam anyway.
16 October 2016
8 At 9.11am on 16 October 2016, you call Lam. In that conversation:
(a) Lam asks you if you can ‘find another address, this one is simple, can be carded’;
(b) You say you have already sent two addresses to Lam via WeChat;
(c) You state ‘one for one thousand five hundred, two for three thousand’
(d) You tell Lam not to dare use the shop address as it is too risky, it does not matter when it is a home address as sometimes you cannot find that person, customs are very smart now;
(e) You say you do not know the people behind Lam, but there must be expectations of Lam and Lam should expect that he will be constantly asked for more;
(f) You advised Lam to drive around to see where there are houses which are not occupied;
(g) Lam asks if you mean he should then go there to wait;
(h) You state yes, that to wait and receive the card is common practice;
(i) Lam says his bosses do not want to receive the card and then go to pick it up afterwards;
(j) Lam says there are supposed to be two today and if they were able to receive at least one of them, they can tell the boss;
(k) You say that for the amount Lam is paying not even an insane person would do it.
18 October 2016
9 At 2.53pm on 18 October 2016, you call Lam. In that conversation:
(a) Lam says when he knows that the piece has entered Melbourne, he will notify you a day or two in advance;
(b) You query whether Lam can know the whereabouts of the piece;
(c) You ask whether his understanding is correct – if the parcel is sent to the destination, they can collect it, but if they are advised to liaise with DHL, then they should not collect it;
(d) Lam confirms this is correct. Lam adds that for the two pieces in progress, his boss has told him to leave them. Lam comments that they will make money for sure;
(e) You chase Lam to pay $3,000;
(f) Lam assures that he will give $3,000 as promised.
19 October 2016
10 At 2.42pm on 19 October 2016, Lam calls you. In that conversation:
(a) You ask when the piece is coming;
(b) Lam states it will be sent on Friday;
(c) You insist that Lam should tell the boss that payment should be made once the item has arrived, that is, when the kid comes to collect, payment should be made;
(d) Lam reiterates that he is not able to do that;
(e) You say in a joking tone that you will keep the stock until the money has arrived;
(f) Lam confirms that you will be paid one week after the kid has taken the stock to someone;
(g) Lam describes the usual practice - once the stock has been received it will be picked up the same night, someone will collect it the next day, and then the money will arrive in about one week, but the longest time that Lam had experienced is three weeks.
24 October 2016
11 At 10.59am on 24 October 2016, you call Lam. In that conversation:
(a) Lam confirms he owes you money but the boss is making excuses;
(b) Lam has asked the boss to transfer money or else he will not have money for petrol to drive around and check out storage places;
(c) Lam has also asked the boss to prepare rent;
(d) You advise Lam that you will need two months’ bond and one month’s rent in advance and to set up a card and deposit a few hundred to a thousand each week, proof that you have an income;
(e) You tell Lam to tell his boss to pay the rent for hiring the warehouse first; however, if Lam knows that the stuff will arrive next week, then it is fine to rent the warehouse at this time;
(f) You also tell Lam that if he hires a warehouse Lam should live upstairs to watch the storage and install cameras at the entrance.
28 October 2016
12 At 6.22pm on 28 October 2016, you call Lam. In that conversation:
(a) You suggest Lam ask his boss to open a shop here and a company in Hong Kong for the purpose of laundering money;
(b) You state it is better to do money laundering which is not a big offence and Lam can have 2 per cent to spend. For $1 billion Lam can have $20 million to spend;
(c) You say if someone who has $8 million to $1 million for laundering, you can organise it.
31 October 2016
13 At 8.30pm on 31 October 2016, Lam calls you. In that conversation:
(a) You ask Lam to bring $2,000 to you;
(b) Lam says no;
(c) You say Lam can pay wages to you in advance as you have already given the address to Lam and the piece has arrived.
13 November 2016
14 At 9.24pm on 13 November 2016, you call Lam. In that conversation:
(a) You ask Lam when the ‘Christmas gifts’ will arrive;
(b) Lam states that he does not know, but he needs one or two days’ notice;
(c) You want to know what the hurry was to supply an address when there is no confirmed date.
20 November 2016
15 At 12.26am on 20 November 2016, you call Lam. In that conversation:
(a) You ask Lam if he has contacted his boss to tell him he cannot survive any longer and to ask the boss to send him a thousand or two in the meantime and once the piece is sorted the amount can be deducted;
(b) Lam tells you that the boss will contact him when the boss gets back to Hong Kong;
(c) You say, ‘Does that mean no work? No work, no food, keep waiting every day?’
(d) You say, ‘You tell him, I too did not receive, even after I received, two pieces, I haven’t got them alright?’
(e) Lam asks you if you are moving house again;
(f) You say yes, and ask Lam if he is moving too;
(g) You suggest before Lam leaves he can arrange one or two more pieces to your place.
22 November 2016
16 At 4.08pm on 22 November 2016, Lam calls you. In that conversation:
(a) You encourage Lam to chase up his boss to deposit money;
(b) Lam says he has already talked to his boss who will give him rent;
(c) You suggest Lam’s boss give you $2,000 and after the piece has arrived, he can deduct it or else it is difficult for you to survive as nothing has been arriving.
24 November 2016
17 At 10.23pm on 24 November 2016, you call Lam. In that conversation:
(a) You ask Lam if he has talked to the boss;
(b) Lam says his boss will transfer $800 tomorrow;
(c) Lam’s boss says, ‘if these two pieces aren’t here, it means likely they have been locked’.
(d) You tell Lam to ask his boss to transfer $2,000 first for expenses, make up no sad stories, ‘tell him you have to survive too’.
18 The intercepted phone conversations – the so-called ‘trial run’ of importing sex toys:
6 December 2016
(a) Lam tells you that there will be a few boxes of sex toys coming;
(b) You say, “sex toys, who cares, I thought you were going to say a few boxes of ice”;
(c) Lam tells you his boss will send three boxes of sex toys in the coming months to test the process, like how long customs takes etc. Will have a trial run first, testing the customs process, how long it takes to arrive, how long it takes to clear customs, will try once or twice first;
(d) You state “Well what does that to do with, I see, if it’s ok, no problem, then continu”’;
(e) Lam states they will try a couple of times, but in the beginning, they do not need you to find addresses, they have someone here to open a company for them;
(f) You say, “so all the addresses are useless now, don’t need them anymore?”
(g) Lam states that this is what he heard, he did not ask details and that the person who opens the company will make a lot of money.
21 December 2016
19 On 21 December 2016, Lam attended and signed a lease for an office at Suite 8, 756 Blackburn Road, Clayton. The lease for the premises was for the period 21 December 2016 to 20 June 2017.
4 February 2017
20 At 8.36pm on 4 February 2017, Lam arrived at Suite 8, 756 Blackburn Road Clayton. He was present when a number of boxes were delivered to those premises by Max Move Removalists.
21 At 8.58pm on the same day, you call Lam. In that conversation:
(a) Lam says he can see your car;
(b) Lam tells you to go straight ahead and turn right, then park your car anywhere;
(c) Lam says he has received the goods and is unpacking them;
(d) Lam invites you upstairs to see as you call them interesting;
(e) At 8.59pm on the same day, you call Lam and tell him that you are opening the door for him right now.
Intercepted telephone conversations – Consignment two
22 The following conversations are lawfully intercepted telephone calls from the telephones of you and Lam, discussing details relating to the importation of the second consignment.
9 March 2017
At 11.40am on 9 March 2017, you call Lam. In that conversation:
(a) Lam asks you if you are scared;
(b) You say ‘I gave you two addresses, to receive, I was scared too, but I didn’t get paid;’
(c) Lam says he will make a complaint to his boss for you;
(d) Lam says the parcel is still with DHL. Lam was asked to contact DHL;
(e) you say to contact them then;
(f) Lam says he is too busy.
4 May 2017
23 At 2.08pm on 4 May 2017, Lam calls a third party referred to as ‘IP’. In that conversation:
(a) Lam says he has a parcel coming and Lam is thinking of borrowing your restaurant address to receive it;
(b) Lam will talk to you tonight as Lam has noticed you need money lately;
(c) Lam will pay you $1,500;
(d) Lam says as the shop is new and is not under your name, you may explain he is just receiving goods for the owner;
(e) Lam reiterates that it will be $1,500. He has paid you the same amount previously for one address;
(f) Originally Lam intended to pay $1,000 per address but as it is you, Lam is willing to pay $1,500 in respect to you;
(g) Lam says he would like to have it over and done with sooner and then he will buy a Rolex;
(h) IP states “well just need a few hundred kilos of…;”
(i) Lam states that he does not think he can take that much, he just wants to earn a few tens of thousands to show off, that’s all;
(j) Lam also states “I just want to earn eighty or a hundred thousand to start up something”.
8 May 2017
24 At 7.30pm on 8 May 2017, you call Lam. In that conversation:
(a) Lam says his boss has paid him some money via Western Union;
(b) Lam confirms the goods have not been sent out because Lam has not yet given the address to his boss;
(c) Lam intends to ask you via WeChat for a name and address;
(d) You say you will give them to Lam later;
25 At 7.34pm on the same date, Lam calls you. Lam asks you what your shop address is. You reply ‘770’.
26 Counsel for the prosecution also tendered a document headed ‘Chronology’, setting out various dates from 7 November 2016 to 9 May 2019 (exhibit 2).
27 Counsel for the prosecution notes there was not an early plea to the indictable charge but does note there were discussions between the parties to reduce the number of charges and then, ultimately, on 6 December 2018, you indicated your intention to plead guilty to the charge contained on the Indictment.
28 Counsel for the prosecution accepted that there were no prior convictions and, furthermore, there were no subsequent matters or, indeed, matters outstanding.
Your personal circumstances
29 Your counsel tendered the following documents:
(a) A document headed “Outline of Plea Submissions” (exhibit “A”);
(b) A bundle of character references from:
(i)Mr John Chow, dated 18 December 2018, where he describes having known you for four years when working as a chef at a local Chinese restaurant in Camberwell. At that time, you were renting a room in his house at the rear, and he describes you as “sincere, hardworking and generous, always willing to help others in need”;
(ii)Mr John Saunders dated 18 December 2018. Mr Saunders describes having met you approximately three years ago, when he was employed as a chef in Camberwell, and you did the catering for a birthday, at which you “excelled”. Mr Saunders met you on several other occasions in a social setting and found you to be a “most honourable and trustworthy Gentleman”. Mr Saunders also describes you as being “very remorseful for [your] actions” and has no doubt that you have learned the lesson and will prove to be a valuable member of the community in the future;
(iii)Mr Ka Wah Chan, dated 12 December 2018, who describes you as a “good friend of mine”, having first met you in Hong Kong, where you both worked as chefs for the same employer. He has also worked with you in Melbourne as a chef and notes that you have always “worked with care and compassion and empathy” and he has always thought you to be “reliable and a good citizen who tries his hardest”. Finally, Mr Chan notes that you had held a job in Australia for four years prior to that reference;
(iv)Lau Ka Wai and Lau Po Yee, which is undated. This reference is from your two sisters, who you lived with in Hong Kong before coming to Melbourne. They express their surprise that you entered into such a criminal activity, as they say they have never known you “to commit a dishonest act” and that you have always been “a responsible individual and always respects parents and all family members”. In particular, they also note that you have “suffered personally for your actions and fully accepts responsibility for your violations”.
Your sisters note that your parents are ageing and struggle with chronic disease and will suffer much emotionally when you are incarcerated. Your sisters also note that they believe you can “turn your life around if given a chance” and that you will be welcomed back in Hong Kong, and they also have knowledge that a job is waiting for you at a hotel because you are a talented chef.
30 Partly based on those documents and partly based on various submissions made by your counsel, I note the following:
·You were born in Hong Kong on 30 May 1977 and are now forty-two years of age.
·You are one of four siblings and you have three older sisters, all of whom live in Hong Kong. Your parents are still alive, your mother being sixty-four years of age and your father being approximately eighty-three years old, although he suffers from several age-related medical complaints.
·Your father was a driver when he worked, and your mother engaged in home activities. They separated when you were about six years of age, causing you, thereafter, to live with your father.
·You were schooled in Hong Kong until the age of fifteen, after which you left school and commenced to work variously as a deliveryman, kitchenhand, driver and cook.
·In 2003, you opened your own restaurant and maintained this business until 2008. Following that, you contracted and consulted in relation to hospitality and, in particular, consulting in assisting in “starting up” restaurants.
·You were married and have subsequently divorced and have no children.
·You came to Australia in 2013 on a student visa and have lived in Melbourne since your arrival. You studied English at college and completed and obtained a certificate for such course.
·You worked in the restaurant industry as a chef and had been employed as a chef at a restaurant for some eighteen months prior to your arrest.
·Your counsel asserts that you have no issues with drugs, alcohol, gambling or mental health.
·Your counsel also notes renewal of your student visa has been rejected and that it would “appear that you will be deported at the end of [your] sentence”.
·You did not know Lam in Hong Kong. You met him approximately eight months prior to the subject offending through a friend.
Circumstances of the offending
31 Your counsel submits that your role in the subject offending was to provide addresses for where the consignments could be sent and you did provide such addresses. You were to receive $3,000 for the provision of such addresses but did not ultimately receive any money.
32 In particular, your counsel submits that you neither had the financial or any other type of capacity to arrange the importation of drugs and had no role whatsoever to play in the planned distribution of the drugs. You received no payments from overseas or anywhere in relation to the drugs.
Matters in mitigation
33 Your counsel submitted that the following matters are relevant in mitigation of your sentence:
(a)You have no prior convictions for any offending, let alone offending involving drugs. Furthermore, since the time of the offending there has been no further subsequent matters or indeed pending matters.
(b)That your plea of guilty should be given some weight. Your counsel notes that you were committed for trial on more charges than that alleged in the Indictment to which you have pleaded guilty.
While accepting that the plea was not at the very earliest stage, it was indicated on 6 December 2018 that you would plead guilty to the single charge contained on the indictment.
Your counsel submits that such a plea has significant utilitarian value in that the time and cost of a reasonably lengthy trial, given the telephone interceptions, has been avoided. Furthermore, such a plea, he submitted, facilitates the course of justice and is also evidence of remorse.
(c)You are presently located at Fulham Prison and have been there for the entire time of your incarceration, apart from a short stint at the Melbourne Remand Centre. According to your counsel, there are few Cantonese speakers at Fulham, and because of your very limited English language skills, you have been unable to participate in any courses. You have been working at cleaning and horticulture. Your period of imprisonment is also more onerous given the “probability of deportation”.
(d)That your prospects of rehabilitation can “be properly viewed as good” given your lack of prior convictions, the support of your family, and your ability to work as a chef;
(e)As has already been recorded, renewal of your student visa has been rejected and according to your counsel it would “appear that you will be deported at the end of [your] sentence”. Your counsel submitted what he referred to as the “probability of deportation”. It was not totally clear whether your counsel was submitting that account should be taken of you experiencing greater hardship than others when incarcerated, bearing in mind the issue of deportation hanging over your head, or the issue of deportation may impact on whether you be granted parole at any time during your sentence of imprisonment.
34 Your counsel submits, correctly in my view, that your offending is “serious” (both “objectively” and “subjectively”), and there can be no doubt that the only appropriate disposition in all the circumstances is the imposition of a term of imprisonment. Your counsel submits, again correctly in my view, that sentencing principles of general deterrence, denunciation and just punishment are important. Furthermore, specific deterrence and protection of the community are also relevant.
35 General deterrence means that the sentence must be one which generally deters other people from entering into such drug transactions. Specific deterrence means that you should be specifically deterred from ever entering into this, or indeed any other, criminal activity.
36 Your counsel also submitted that the principle of “parity” is relevant. By this he means that looking at the relationship between you and Lam, Lam “must be viewed as the principal” in relation to the offending and accordingly your sentence should be a “lesser sentence” because you were playing a lesser role.
The position of counsel for the Prosecution
37 Counsel for the prosecution submitted that clearly the subject offending necessitated an immediate period of imprisonment with a parole period. Initially, he referred to various decisions which are applicable to sentencing for drug-importation offences.
38 Counsel for the prosecution referred initially to the Court of Appeal decision of Phuong Bich Nguyen v R; Phommalysack v R (2011) 31 VR 673, wherein the Court of Appeal consisting of Maxwell P and Redlich JA, held that there must, so far as possible, be national consistency in sentencing for Federal offences (see paragraphs [30] and [104]) reference was made by the Court to the well-known decision of Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1.
39 In particular, counsel for the prosecution referred to the judgment of Maxwell P, where he set out a variety of propositions distilled from recent New South Wales decisions, as applicable to sentencing for drug importation offences. I refer to paragraph [34] of Nguyen (op cit), where Maxwell P states:
‘For the assistance of sentencing judges, the propositions set out in Nguyen and Pham [(2010 205 A Crim R 106)] … are as follows:
1. The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.
2. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court.
3.It is the criminality involved in the importation which must be identified. The fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
4.Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
5. Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
6. As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit. (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.)
7. The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
8.The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
9. Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
10. The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.
11.Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
12. Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.
13. Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.”
(Footnotes omitted.)
40 Maxwell P then went on and reviewed the decision of De La Rosa (op cit) at pages 64-66, whereat McClellan CJ identified key reference points for sentencing (and for comparing sentences), taking into account various matters involving quantity, role, reward, assistant to authorities, criminal history and prospects of rehabilitation.
41 Counsel for the prosecution also referred to a document headed “Comparative Sentencing Table”, which sets out details of various sentences, including the sentence of Judge Lyon on 10 October 2018 and various Court of Appeal decisions in relation to appeals from the County Court over the period from 2015 to 2016. Through oversight, that document was not tendered and I will have it marked as exhibit 3.
42 Counsel for the prosecution then referred to the following cases in relation to the prospect that you will be deported at the end of any prison sentence. In particular, he referred to whether further hardship is experienced by you if, indeed, that because of your likely deportation, you would not be considered for parole at the end of any non-parole period of your sentence. Counsel referred to two Court of Appeal decisions: Zhao v R [2018] VSCA 267 and Wan v R [2019] VSCA 81.
43 It is convenient to refer to the later case of Wan (op cit), which involved an appeal of a sentence for eleven years’ imprisonment, with a non-parole period of seven years and six months, which was said to be ‘manifestly excessive’.
44 On appeal, counsel for the appellant submitted that the uncertainty as to whether or not the applicant would be eligible for parole as a result of his expected deportation upon release, putting him in a special position of “uncertain suspense” or anxiety as to his anticipated date of release, which would make his imprisonment more burdensome.
45 The court noted that a similar argument had been advanced, without being ruled upon, in Zhao (op cit). It was acknowledged that the provisions of s5(2AA)(a) of the Sentencing Act 1991, and the absence of evidence before the court as to the likely position regarding parole, posed a vexed question for the court.
46 The Court of Appeal, in Wan (op cit), (consisting of McLeish and T Forrest JJA), stated:
‘It is convenient to refer firstly to the question of parole. The Court is constrained in the manner in which it may treat the likely impact of immigration law and policy on the applicant’s prospects of parole. Section 5(2AA)(a) of the Sentencing Act 1991 requires the Court not to have regard to ‘any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind’. The argument was put on behalf of the applicant that the Court could, however, take account of the anxiety likely to be suffered by the offender by virtue of the uncertainty as to whether or not he would be refused parole because of his ultimate liability to deportation upon release. We are prepared to assume, without deciding, that taking account of such anxiety, and the fact that it may make prison more burdensome for the applicant than for another prisoner not similarly subject to deportation, would not infringe s 5(2AA)(a).
Even on that assumption, the evidentiary basis for the submission is lacking. The submission contends that the prospect of deportation places a prisoner in a position of anxiety more burdensome than other prisoners, because it makes release on parole highly unlikely. There is no evidence before the Court to show that this is the current attitude of the Parole Board, or that it is likely to be by the time that the applicant is eligible for parole. That is not a criticism of the applicant’s argument. Rather, it points to its underlying difficulty. Predictions of this kind inevitably invite a significant degree of speculation, as s 5(2AA)(a) appears to recognise. It is simply not possible to say what the applicant’s position regarding release on parole might turn out to be.’ (See paragraphs [32]-[33]).
47 I also refer to the Court of Appeal decision of Director of Public Prosecutions (DPP) v Za Lian [2019] VSCA 75, which was handed down on 8 April 2019, some three days prior to the judgment of Wan (op cit) being handed down. In that appeal, the sole issue raised by the Director of Public Prosecutions was that the sentence imposed, at first instance, was ‘manifestly inadequate’.
48 Issues arose as to the uncertainty as to what would happen to the offenders at the end of their sentences. It was submitted that they may be taken into immigration detention and might spend many years there if they did not voluntarily return to their country of birth. At paragraph 108, the Court of Appeal (consisting of Ferguson CJ, Kaye and Weinberg JJA) stated:
‘In addition, the uncertainty concerning the immigration status of the respondents, and the fact that they were likely to be detained in immigration detention for an indefinite period, was an important and significant mitigating factor in determining the sentence to be imposed on each of them. During their young lives, they had both already departed from their homeland as refugees from it. As a consequence of their offending in this case, they each faced the very real prospect of being deported from the country in which they have found refuge and in which they had been accepted. In addition, they each faced the real possibility, if not probability, of spending some indefinite further time (after the completion of their prison sentences) in immigration detention, following which they may well be required to leave Australia for some other unknown destination. The uncertainty which would hang over each of the two respondents while they serve their prison terms would, realistically, add significantly to the burden of the term of imprisonment to be served by each of them. Moreover, the prospect — the likelihood of which cannot, at this time, be determined — that they will ultimately be deported from this country could well constitute a further punishing circumstance arising from the offences to which they each pleaded guilty. In that way, and for those reasons, the issues relating to the immigration status of each of the two respondents was, as already stated, a significant mitigating factor in their favour.’
(Footnote omitted.)
49 The court referred to the well-known cases of Guden v R (2010) 28 VR 288 and Konamala v R [2016] VSCA 48.
Conclusion
50 The offence of attempting to possess a commercial quantity of a border-controlled drug – in this case methamphetamine – reasonably suspected of having been unlawfully imported, to which you have pleaded guilty, is a very serious offence, as is made clear by the maximum penalty being life imprisonment.
51 Over the period of your offending from 15 October 2016 and 18 May 2017, you had a variety of telephone conversations with Lam, relating to your involvement in the importation of two the consignments of methamphetamine:
(a)The first consignment was from the United States, intercepted on 7 November 2016, when Australian border force officers examined a package at the Air Cargo Operations Melbourne; and
(b)The second consignment was from Malaysia, intercepted on 18 May 2017 by Australian border force officers at Air Cargo Operations, Melbourne Airport.
52 The first consignment contained 1,615.6 grams of pure methamphetamine and the second consignment contained 2,793.9 grams of pure methamphetamine. The total amount of pure methamphetamine relating to the two consignments is 4,409.5 grams.
53 A commercial quantity of methamphetamine is 750 grams pure and, accordingly, the total amount of methamphetamine involved in the two consignments was nearly six times the commercial quantity.
54 Furthermore, the potential wholesale value of Consignment 1 – that is 2,012 grams net – has been estimated to be between $160,000 to $240,000, and the potential street value $503,000 to $1,600,000. The potential wholesale value of Consignment 2 – that is 3,479.3 grams net – has been estimated to be between $272,000 to $408,000, and the potential street value between $869,829 to $1,739,650.
55 I do note that the nature of your offence involves an “attempted” possession, rather than the actual possession of the unlawfully imported drug. However, as pointed out in Nguyen (op cit) at paragraph [34], offences of attempting to possess imported drugs are not any less serious than those involving drugs.
56 The various telephone interceptions are clearly of assistance in determining your roles and activities in the subject offending. I do accept that:
(a)Lam was the person who gave you instructions and was more involved in the attempt to import the methamphetamine into Australia;
(b)Your role was to search out and provide addresses to which the consignments could be sent and you performed this task;
(c)That you were to receive $3,000 for the provision of these addresses - $1,500 per address – but, notwithstanding continuous complaints to Lam about the lack of payment, you seemingly did not receive any moneys for the provision of the addresses.
57 However, the telephone intercepts also record you and Lam not only discussing the payment to be made to you, but also the number of packages expected, the details of collecting the packages, payment from the boss and the rental storage facilities.
58 I also accept, consistent with the submissions of your counsel, that there is no suggestion that you have the capacity of the financial or otherwise to arrange the importation of the methamphetamine. Furthermore, there is no suggestion that you would have any role to play in the planned distribution of the drugs.
59 However, it is also clear that your motivation was purely a financial one. In particular, your counsel disclaimed that you had any issues with drugs, alcohol, gambling or mental health.
60 In your Record of Interview with authorities on 25 May 2017, you stated that although you were requested by Lam to provide two addresses because “his [that is Lam’s boss] wanted to send him something”, you did not know what would be in the parcel. You did go on to say that Lam “said something about prohibited goods” and that it was “just for fun”.
61 In all the circumstances, I do not accept that you had no knowledge of the contents of the attempted imports. I also note that on 6 December 2016, when Lam tells you that there were a few boxes of sex toys coming a trial run, you said ‘sex toys who cares, I thought you were going to say a few boxes of ice’, I do find beyond reasonable doubt that you were aware of the contents of the imports. There is no evidence that you either knew the weight of the methamphetamine, or the corresponding wholesale or street value of the methamphetamine involved in both consignments.
62 I consider that the gravity of your offending is high, in circumstances where, over a period of approximately seven months, you played an active role in the sourcing of property in circumstances where you had an appreciation that methamphetamine was to be smuggled into Australia and ultimately distributed by others for profit. Clearly enough, although you clearly did not devise the importation scheme, nor had any contact other than with Lam, your role was important, as it permitted the consignments to be potentially sent to premises in the normal way that any package from overseas would be dealt with.
63 In mitigation, I do accept that prior to this offending you had no prior convictions involving drugs in any way or, indeed, any type of prior conviction. Although I accept that such situation is relevant to mitigation and will be taken into account, I also note the dicta of Maxwell P in Nguyen (op cit) at paragraph [34], wherein he says that the prior good character of a person involved in drug importation is generally to be given less weight as a mitigating factor than it otherwise might be given.
64 Furthermore, I do accept that your plea of guilty, although late, is relevant to mitigation of sentence. I note that your counsel submitted that you were committed for trial on more charges than that alleged on the Indictment to which you have pleaded guilty. In this respect, I refer to the Court of Appeal decision of Maybus v R [2017] VSCA 125, wherein the Court of Appeal consisting of Osborn, Kaye JJA and Croucher AJA considered, in part, whether the circumstances of the case gave rise to a plea being entered at the ‘first reasonable opportunity’. In particular, reference was made to the High Court Decision of Cameron v R (2002) 209 CLR 339, where in a joint judgment of Gaudron, Gummow and Callinan JJ, stated the relevant principles by adopting the following paragraph from the judgment of Ipp J in Atholwood v R (1999) 109 A Crim R 465, wherein he stated:
‘It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic procedure that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts … to persist in a not guilty plea on all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity.”
(Footnote omitted.)
65 Bearing in mind that case, I do put some weight on the plea of guilty by you, given the circumstances leading up to that plea. In any event, I do accept that such a plea of guilty has utilitarian value in that it saved the time and cost of a reasonably lengthy trial, given the telephone interceptions, has been avoided.
66 It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (see Phillips v R [2012] VSCA 140 at paragraph [86]). In my view, there is little evidence as to any remorse, although I do accept that you have shown some acceptance of responsibility for your offending, as demonstrated by what is said in the reference from your two sisters. They state that you have “suffered personally for [your] actions and fully accepts responsibility for… [your] violations”.
67 I accept, and take account of that consistent with the principles enunciated in Guden (op cit) and Konamala (op cit), your period of imprisonment may well be more difficult than for others, bearing in mind the uncertainty as to whether or not you will be deported, or have your visa re-instated at the end of your period of imprisonment. I also accept that you experience a degree of greater hardship in Fulham Prison than other prisons given that there is only a few other prisoners who speak your language and you only speak limited English.
68 However, again, consistent with the decision of Wan (op cit), I do not consider that there is a proper basis for finding that the prospect of deportation places you in a position of anxiety more burdensome than other prisoners because it may make release on parole unlikely. As in Wan (op cit), there is really no evidentiary basis for such a submission and it is simply not possible to say what your position regarding release on parole might turn out to be.
69 Your counsel also relies on the principle of parity and in this respect he relies on the sentence handed down by Judge Lyon on 10 October 2018 in relation to your co-offender, Lam. Lam pleaded guilty to two charges of importing a commercial quantity of border-controlled drug, with each charge carrying a maximum of life imprisonment. Lam also pleaded guilty to a further charge of providing a false foreign travel document. That offence carries a maximum penalty of ten years’ imprisonment.
70 Ultimately, Judge Lyon, on Charge 1, that is, the charge of importing a commercial quantity of a border-controlled drug, convicted Lam and sentenced him to seven years’ imprisonment, commencing on 10 October 2018. On Charge 2, the further charge of importing a commercial quantity of a border-controlled drug, Judge Lyon convicted Lam and sentenced him to ten years’ imprisonment, with that sentence to commence on 10 July 2001. On Charge 3, a charge of providing a false travel document, Lam was convicted and sentenced to twelve months’ imprisonment and that sentence was to commence from 10 October 2018.
71 Judge Lyon noted that the overall sentence was twelve years’ and nine months’ imprisonment, and he further ordered that Lam serve a minimum period of eight years and four months before being eligible for parole. Judge Lyon declared a pre-sentence detention of 503 days, excluding the day of sentence, all of which was reckoned as time already served.
72 The first charge on the Indictment in relation to Lam involved two consignments of methamphetamine, one on 7 October 2016 and one on 6 November 2016. Indeed, the consignment on 6 November 2016, was the first consignment, the subject of the charge confronted by you. The total weight in relation to the two consignments in relation to Charge 1 was 3,235.1 grams.
73 It should be noted that in relation to the charge on your Indictment, the total weight of the two consignments forming the basis of that charge was 4,409.5 grams.
74 The second charge of importation involving Lam concerned another two consignments of methamphetamine. The consignments contained a total of pure amphetamine, weighing 5,590 grams, substantially more than in relation to Charge 1.
75 I clearly accept that the gravity of Lam’s offending was more severe than the gravity of your offending. Lam was involved in four importations and played a guiding role in relation to those importations. In particular, the second charge involving 5,590 grams, was a significant amount of methamphetamine.
76 However, in relation to the first charge of importation, although Lam was, more involved than you, the weight of the drug involved with your two importations is a third greater than the weight pertaining to the first charge faced by Lam.
77 Of course, his Honour Judge Lyon made clear that he was cognizant of the principles of totality in arriving at an appropriate sentence. He ultimately accepted, as demonstrated by the sentence, that there must be a measure of cumulation to mark the overall criminal conduct of Lam.
78 As I have already indicated, I intend to sentence you to a period of imprisonment with a non-parole period. As I have already recorded, I consider that general deterrence, denunciation and just punishment are all important considerations, together with the protection of the community. I also take into account the various mitigating factors to which I have referred and borne in mind the general principle of parity. Please be upstanding:
(a)In relation to the charge on the Indictment, you are convicted and sentenced to eight years’ imprisonment, commencing on this date, 19 July 2019;
(b)I order that you serve a minimum of five years and six months before being eligible for parole;
(c)I declare that the pre-sentence detention of 784 days, including today, be reckoned as time already served and administratively deducted from the sentence.
Mr Lynch is that satisfies the requirements of the Commonwealth Legislation?
MR LYNCH;I believe so Your Honour
HIS HONOUR: Yes I think it is important I sent these, it commences from today.
MR LYNCH:Thank you Your Honour
HIS HONOUR: Anything you wish to add.
MR JACKSON: No Your Honour,
HIS HONOUR: Thank you for your time gentleman.
MR LYNCH:I am just asking Your Honour, there is that order for the confiscation of the items which I just handed up.
HIS HONOUR: We will contact your instructors and I will certainly sign that order.
MR LYNCH:Thank you.
HIS HONOUR: Perhaps I will just add for the record I will make the confiscation orders sort by the prosecution.
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