Director of Public Prosecutions v Lam

[2014] VCC 1450

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01337

DIRECTOR OF PUBLIC PROSECUTIONS

v

KONG LAM
NGHIA TRAN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 September 2014
CASE MAY BE CITED AS:	DPP v Lam
MEDIUM NEUTRAL CITATION:	[2014] VCC 1450

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Tang
For Accused Lam	Mr T Alexander
For Accused Tran	Mr R Backwell

HER HONOUR: 

1Kong Sham Samuel Lam, you have pleaded guilty to one charge of trafficking in a large commercial quantity of methylamphetamine. 

2Nghia Ho Duc Tran, a jury has found you guilty of one charge of trafficking in a drug of dependence, namely methylamphetamine.

3The facts underlying the offending are as follows.  On 12 December 2012, you Kong Lam arrived at Tullamarine Airport on a flight from Hong Kong at about 8am.  In your luggage was six water filtration canisters, each of which was wrapped in clear plastic and contained a quantity of methylamphetamine or ice mixed with a black powdered substance later found to be charcoal.

4At about 10.25am, you checked into a room at the Pensione Hotel, at 16 Spencer Street in Melbourne.  After checking in, you received several telephone calls from an unknown female who directed you that a fat man in a top with blue stripes and grey coloured pants would be waiting for you downstairs.

5During those phone calls, you asked the unknown female if the person had brought bags which you required the quite few "chi" which is a Cantonese word for a number of sender objects.  At about 1.20pm, you were seen by federal police exiting the Pensione Hotel and walking a short distance along Spencer Street where you met with Nghia Tran who was wearing the clothes described and who had driven from New South Wales to Melbourne the previous day.

6Tran handed you, Lam, a white plastic bag which you took back to the hotel, placing in it the six water filtration canisters.  You then left the hotel, carrying the bag, walking to where Tran was waiting and followed him as he turned right into Flinders Lane.

7The two of you were arrested by police as you both crossed the road to the entrance of a multi-level car park where your car near, Tran, was parked.  Spot testing of the canisters indicated the presence of amphetamine.  Police seized a notebook from you, Nghia Tran, which you were carrying, on which was written the address, 2-4 May Street, Eastwood.

8On 14 December, police executed a warrant at unit 1 of that address, which is a Sydney suburb, where they located on a table in bags, plastic strainers or colanders, metal bowls, a converted cooker, metal jug and spray bottle.  Expert evidence being given at trial that each of those items would have a use in separating the methylamphetamine from the charcoal.

9In an interview on 12 December 2012, you, Kong Lam, admitted arriving in Australia that day, booking into the hotel and bringing the canisters with you from Hong Kong.  You made no admissions as to knowing there were drugs in the canisters.  You entered a plea of guilty to the charge the day before the trial in this matter was to commence, that is on 14 July 2014.

10In the record of interview with you Nghia Tran and police, you admitted driving to Melbourne from New South Wales the previous day in your car, and parking in the car park.  You made no admissions as to meeting Lam in order to obtain the drugs from him and indeed went on to speak about having no association with this man at all.

11A trial was then conducted in relation to you Nghia Tran, where you pleaded not guilty to trafficking in a large commercial quantity of methylamphetamine.  Analysis of the drugs came to contain in the canisters revealed total quantity of a mixture of 2.86 kilograms.  With a purity of 80 to 90 per cent methylamphetamine.  The methylamphetamine itself was in a pure form.

12Ultimately, a jury returned a verdict in relation to you Nghia Tran, finding guilty only of the charge of trafficking simpliciter.  During the trial, you gave evidence that you had rented the apartment in Sydney following the separation from your wife but had never lived there, your wife urging you to take a holiday to Melbourne which was the purpose you said in your evidence for your visit here.  In evidence you said you were standing on Spencer Street looking at a tourist map, when you were approached by another man you did not know, who made indications while you were on the phone talking to your wife, that he wanted a plastic bag you had, which you had used in order to clear rubbish from your car.  You said you gave it to him and he disappeared.  You said you had no idea the man was following you at the time you were apprehended by police.

13Film footage of the unit in Sydney, when it was searched by police revealed that the only personal items in that serviced apartment were those on the dining room table, which a police expert had it tested were all items that could be used in separating the methylamphetamine from the charcoal.  They comprised four plastic colanders, an electric heating place, a jug, a spray bottle, a bucket with a lid with a circle cut out of it and other minor items.  You said they were items your wife had given you to use in the apartments once you had separated.

14I now turn to the personal circumstances of each, beginning with you Kong Lam.

15You are 52 years old and came from an impoverished background in Hong Kong where you left school at age 10 to work and assist in providing an income to your family.  You are the second of three children born to your parents.  From the age of 10, for two years you worked delivering take away food, then for the next four year, worked as a kitchen hand.  Ultimately, you qualified as a chef and worked in that capacity for 30 years.

16In 1992, you moved into the construction and renovation business, first as an employee then as a partner in that business.  In 2000, the business was declared bankrupt and you lost an amount of money and the salary which you had earned which was much superior to that you received as a chef.  You then returned working as a cook, an occupation you held to the time you got on the plane from Hong Kong to Australia in 2012.  In Hong Kong, as a chef, you earned about HKD$20,000 a month, which equates to about A$2700 a month.  This is apparently a mid to low level wage there.

17You have two children, a daughter age 31 and a son aged 2.  You daughter was born in 1983, of a relationship which ended in 1986, at which time you and your daughter continued on living with your parents and you raised her, educating her to Year 11.  Your parents are now deceased and your daughter is married, has no children and works as a security guard at a hotel in Hong Kong and also undertakes part-time sales work.

18I received a reference from your daughter attesting to your very good qualities as a father and provider.  You met your wife in 2009 and married her in 2011 and you have a son born in 2012.  Your wife is many years younger than you, being aged only 27.  You are the bread winner for your family and your wife also wrote a reference, tendered on the plea, where she too wrote in positive terms about your qualities as a father and provider.  She and your son have no had to move to cheaper rental premises and she is dependent on welfare.

19Whilst in gaol, you have led a lonely existence, you have very limited English, have no visitors and keep in contact with your family in Hong Kong, mainly through letters.  You have applied yourself in custody, undertaking a number of courses, mainly revolving around learning English.  Your teacher, Karen McMillan, who works with Kangan Corrections as a English as Second Language teacher, wrote a letter to this court stating that she had taught you for about nine months at Port Phillip, where you have been held, stating you had attended every class and were always punctual and consistent.

20She said you completed your work to a high degree and had completed five modules in the General Certificate of Education for Adults.  She stated:

"Kong has proved to be a reliable, punctual, engaged learner who has shown a great deal of improvement in his spoken and written English."

21I also received a reference from your former employer, a restaurant owner, who said you had worked for him for many years and who described you as an excellent employee.  Whilst clearly aware of the offending, which he said was very much out of character, he also said he would be ready to employ you on your release.

22I now turn to you Tran.  You are 34 and were born in Vietnam and were brought to Australia by your father, who arrived here as a refugee in 1990.  Your father worked as a driver in Vietnam but it appears did not work once he came to Australia.  You have an older brother, now aged 37, with whom you have little contact, and a younger sister aged 19 who works in child care and lives with your parents.

23You left school at age 16 and worked for two years at Hungry Jacks and then for four years a brick layer.  For the next two years, you worked in a tobacco shop and for a year after that, in take away shops.  Between the ages of 25 and 30, you completed a butchering apprenticeship and worked as a butcher.

24At age 30, you opened a bakery with your wife, which business you were operating at the time of your arrest.  You have lived in New South Wales for 22 years.  For the past 11 years, you have been in a de facto relationship with your partner Ruby Nguyen.  You have three children aged three, 14 months and three months.

25You and your family live in a home owned by your partner's mother and you own an investment property in Punchbowl.  Both you and your partner are very involved in the care of both sets of parents.  Your partner's mother who lives with you, suffers depression, she having separated from her husband ten years ago, and having no contact with him since.  She also suffers from carpal tunnel syndrome, is apparently unable to lie independently and you and your partner have lived with and cared for her in the past ten years.

26Your father has ischaemic heart disease and your mother suffers from diabetes and osteoporosis.  Your counsel told me you see your own parents daily and they rely on you for support.

27Different issues arise in relation to the sentencing of each of you.  You, Lam, have pleaded guilty.  I am satisfied that you have been a productive and industrious worker and a good father.  It would seem you had concerns about your capacity to care for your young wife and son in the future and this led you for the first time in your life to undertake any sort of criminal activity.  In particular, to undertake the dangerous role of courier of a large amount of drugs.

28The prosecution submitted that the purity of the drugs you brought into Australia should lead me to conclude you were therefore close to the source.  I do not necessarily accept that is a view I should take.  There is nothing before the court that would lead me to conclude that your role was any greater than that of a courier.  There is no indication you have been involved in any superior sense in a drug smuggling ring.

29You have no prior convictions and the only material before me as to your background is as I have outlined.  I accept, as I have said, that you have led a hard-working, productive life and been a responsible father and provider.  I accept that your behaviour in prison is consistent with this behaviour.

30You have, however, been responsible for bring a very large amount of illicit drugs to Australia.  Methylamphetamine or ice is a highly addictive, destructive drug which is rampant in our community.  It ruins lives and often leads its users to criminal activity, often violent activity.

31The street value of the drugs was assessed as being worth between $1.6 and $2.8 million, depending on the basis upon which is was sold.  This seriousness of this offending means that a previous good history has far less weight in such cases so that principles of general deterrence, that is a sentence which sends a message that such offending will be treated most seriously and protection of the community are the dominant sentencing principles to be observed by this court.

32It was not submitted that I should deal with you in any way other than via a sentence of imprisonment.  In sentencing you, I take into account your plea of guilty notwithstanding that it was made at a late stage and you will receive a discount in that respect.  I accept that you are a person of good prior history who was most likely in this activity in order to obtain money for your family.  I accept that your role was that of a courier, I accept that you have good prospects of rehabilitation.

33I also accept that you will find services of sentence of imprisonment harder than the normal prisoner given your limited English, your isolation and your concern at the plight of your young wife and son.  I therefore sentence you as follows, could you stand up please?

34On the charge of trafficking in a large commercial quantity of methylamphetamine, you are sentenced to seven years' imprisonment and I order that you serve a minimum term of five years.  What is pre-sentence detention Madam Prosecutor?

35MS TANG:  Your Honour, it is 628 days.

36HER HONOUR:  I declare that 628 days of this sentence have already been served by way of pre-sentence detention.  Have a seat.  Thank you Mr Lam.  Pursuant to 6AAA, I declare that had you not pleaded guilty, I would have sentenced you to nine years' imprisonment and order you serve a minimum term of seven years'.

37I now turn to you Nghia Tran.  It was urged upon me by your counsel that I should not regard your role as being any greater than that also of a courier.  IT was submitted that the evidence relating to the apartment in Sydney was not necessary for proof of the charge you faced and the charge of which you were convicted.

38Your counsel submitted that you had given an explanation for the presence of the items seized by police from that apartment and that each of those items had a domestic use, quite apart from that alleged by the prosecution.

39I do not accept that submission.  A judge is, of course, obliged to interpret a jury's verdict in terms most favourable to an accused person.  In this case, however, you gave evidence on the trial which was clearly rejected by the jury.  That evidence related not only to contact with Lam in Melbourne on 12 December 2012, but as to the reason you came to Melbourne and the reason that you rented the unit in Sydney.

40It was, in my view, a highly unlikely explanation that you gave, that is, that you rented the apartment because you had separated from your wife, but did not live in it for more than a night or two because your partner then urged you to take a holiday to Melbourne.  I do not accept that the items discovered at the apartment, which is otherwise bare of any of your personal property, each of which could coincidentally be used in the process of extracting drugs from charcoal, with the sort of items that a man in your position might have expected to take with him, or have delivered to him by his wife, to help him live there.

41It was a serviced apartment with crockery, cutlery, linen and so forth.  I do not understand that a newly separated a man would require for example, four colanders or an electric hearing plate, given the apartment already had a stove and an oven.  I do not accept that it would be a rational exercise to infer that the jury had rejected that part of your evidence relating to your explanation for your presence in Melbourne and your meeting with Lam but accepted what, in my view, was a most unlikely explanation for either your renting of the apartment of the items found there.

42In my view, the only rational interpretation of the jury's verdict was that it accepted the Crown case, a circumstantial case, which included the renting by you of the apartment and the items found there, together, with the reasons submitted to them by the Crown, of the relevance of that evidence to your commission of the offence.

43Whilst you were acquitted of trafficking in a large commercial quantity, or a commercial quantity of the drug, this related to the jury's inability, in my view, to be satisfied beyond reasonable doubt that you knew or were aware of the particular amount of the drug.  It is my view, therefore, that you had the role in this enterprise of meeting with Lam of then transporting the drugs from Melbourne to Sydney where you were then to extract them from the charcoal mixture.

44The fact that you were convicted of trafficking simpliciter means you must receive a sentence which is less than that which would be otherwise imposed had you been convicted of the more serious charges of trafficking in a commercial or a large commercial quantity of methylamphetamine.  Nevertheless, again in your case, it was not submitted that I should deal with you in any way other than by a sentence of imprisonment.

45You pleaded not guilty, gave evidence at trial which has been clearly rejected and shown no remorse for your offending.  You have no prior convictions, a matter which is to your credit but which again, given the seriousness of the charge of which you have been convicted, is of lesser weight. 

46You were part of an organised and well planned operation which had as its ultimate goal the dissemination of methylamphetamine into the community.  As I have said, methylamphetamine is rampant in the community.  Whole communities are devastated by it, it is a highly addictive drug, generally used by young people resulting often in their committing violent crimes.

47Your role I am satisfied extended beyond that of a mere courier.  Again, principles of general deterrence and protection of the community dominate the sentencing exercise before me in relation to your case.  In sentencing you, I take into account that service of your sentence will be rendered more difficult by the fact that you will serve it in a Victorian prison while your family is in New South Wales.  And that you will have a wife and three very young children who will therefore be bereft of your presence and support.

48My assessment of the prospects of your rehabilitation are somewhat guarded, despite your otherwise productive and crime free past.  Given the way in which you conducted your trial, given the fact it seems to me you had a business and investment property so that your financial position was never presented to me as parlous and given that you were not a user of this drug therefore I can be satisfied your participation in this criminal enterprise was done for financial profit only.

49I note that neither you Lam, nor you Tran, have provided any further information to the authorities insofar as revealing the activities of other, possibly more highly placed members of the organisation, whose criminal activity you became involved in.  This is not a matter which aggravates your situation, it is common in such cases that fear of reprisal will make that a difficult step.  I sentence you as follows, Mr Tran.  Stand up please?

50On the charge of trafficking in a drug of dependence, namely methylamphetamine, you are sentenced to five years' imprisonment.  And I order that you serve a minimum term of three years before becoming eligible for parole.  Have a seat please.  Pre-sentence detention?

51MS TANG:  One hundred and forty days Your Honour.

52HER HONOUR:  I declare that 140 days of the sentence have already been served by way of pre-sentence detention.  Anything else that I need to attend to?

53MS TANG:   No Your Honour.

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