Director of Public Prosecutions v Lam
[2012] VCC 2170
•21 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAI MAI LAM |
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JUDGE: | HER HONOUR JUDGE HARBISON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 May 2012 | |
CASE MAY BE CITED AS: | DPP v Lam | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2170 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.J.C. Silbert SC | Office of Public Prosecutions |
| For the Accused | Ms D. McCann | Victoria Legal Aid |
HER HONOUR:
1 Wai Mai Lam, you have pleaded guilty before me to two charges of attempting to possess a substance being a substance that is reasonably suspected of having been unlawfully imported. The substance in relation to the first charge is cocaine and the substance in relation to the second charge is methamphetamine.
2 In relation to both charges, the substance is alleged by the prosecution and agreed by you to be a marketable quantity. The quantity in relation to the cocaine is 354.64 grams and the quantity in relation to the methamphetamine is 454.5 grams and I note that a marketable quantity of cocaine and methamphetamine is specified in the Act as being a quantity in excess of 2 grams.
3 The prosecutor told me that Victoria Police has estimated that the cocaine had a street value at a low level of $200 per gram and at a higher level of $400 per gram. This translates into a value for the quantity of cocaine as being between $50,520 and $141,456. In relation to the methamphetamine, Victoria Police has estimated that this substance had a street value at a low level of $800 per gram and at a higher level of $1,000 per gram. This translates into a value for the quantity of methamphetamine at the low level of $363,600 and at the higher level of $454,500. Whether at the lower level or at the higher level, these are clearly very substantial sums of money. The maximum penalty for each of these offences is 25 years' imprisonment, or a fine of $550,000.
4 I turn now to the circumstances of the offences. You travelled to Australia on a tourist visa arriving on 19 September of last year. You are a Chinese resident of Hong Kong. Arrangements had already been made by someone other than you to import these drugs into Australia and for the drugs to be concealed in a music mixer and a DVD player. Each of those items containing the drugs was sent to another Chinese national residing in Australia on a student visa. This student had no knowledge of the presence of the drugs concealed in these items.
5 When you arrived in Australia, you telephoned the student on several occasions and arranged to collect the goods. You were not aware that the police had pre-knowledge of the delivery and had substituted an inert powder for the drugs. Together with a co-offender by the name of Wong, you collected the goods from the student and took them to another address where you deposited them in a house which had been rented on a short term rental. You opened the packages and retrieved each of the packages of drugs. You removed each package of powder and put it in a location within the house. You then disposed of the packaging. You also paid the unwitting student for her role in the delivery.
6 You and your co-offender were arrested on 30 September 2011, approximately a week and a half after you had first arrived in Australia. In your record of interview you confessed your involvement as I have just outlined it. You told the police that you expected to be paid just under $AU4,000 on your return to Hong Kong for your services. You said you'd not been explicitly told there were drugs inside the packages until you came to Melbourne. However, by the time you collected the packages from the student, you well knew that there were drugs inside them.
7 You also told police that you realised that you were doing the wrong thing. Your co-offender Wong has pleaded not guilty and the trial of the charges against her has not yet been listed.
8 I received into evidence a report of Dr Aaron Cunningham, a forensic psychologist. In his report he provided some detail as to your family background. You are presently aged 38 years. You have been born and lived in Hong Kong all of your life. Your mother died when you were six years of age and you have never had a close relationship with your father. You were raised by one of your grandmothers until you were aged about 10. You appear to have been neglected by your family after that time and you have lived independently since the very young age of 15 years.
9 You have had two romantic relationships in Hong Kong. Your first partner developed a heroin addiction and, as a result of that addiction, you became depressed and began what became a long history of self-harming. On that occasion you were placed into inpatient psychiatric care in Hong Kong. There is one child of that first relationship who is 18 years of age now and with whom you have not had contact for quite a long time.
10 You later began another relationship. There is one 10 year old son born of that relationship. As I understand it, this second relationship broke up when you were pregnant with your second child and that child has never had any contact with his father. You have been the primary carer for this son from the time of his birth until you came to Australia. When you left Hong Kong, you left him in the care of his godfather in Hong Kong.
11 You had experienced significant financial problems in Hong Kong in looking after yourself and your son without any family support. It was put to me that your offending, for which I am to sentence you today, was borne out of financial desperation, you being in a position of great financial and emotional vulnerability when you were approached to take part in this criminal operation.
12 As I have said, you expected to receive the Australian equivalent of $4,000 for your role in this offending. That sum would have been sufficient to set you up in Hong Kong in rental accommodation with yourself and your son. That was the purpose behind your offending.
13 I accept that, as so often happens, a callous recruiter inveigled you into becoming a relatively small player in this large criminal operation preying upon your financial and emotional vulnerability as I have outlined it.
14 Dr Cunningham also records your physical and psychological conditions. You suffer from gall bladder problems and Hepatitis C. Your counsel told me that you are extremely apprehensive about your capacity to cope with these conditions in prison. As I understand it, there is no suggestion that they could not properly be treated in prison. However, as Cunningham points out, you are prone to anxiety and irrational thoughts and these matters have weighed very heavily on your mind.
15 Dr Cunningham also noted your past history of heroin abuse and your history of psychiatric admissions which appear to have been precipitated in the past by your use of heroin. However, I am told by your counsel that heroin addiction is now not an urgent matter. It is only a background issue in your presentation.
16 Of more concern, is your history of suicidal and paranoid ideation, as well as self-harm. Dr Cunningham administered some tests. As a result of those tests, he assesses you as being in the average range of intelligence but possessing a borderline personality disorder. In his view, this disorder has been precipitated by your childhood instability and the perception of abandonment of you by your caregivers.
17 He asked me in his report to consider a disposition in which this condition is taken into account. His opinion is that, if left untreated, a term of imprisonment would weigh more heavily on you compared to an individual without this condition. He also expresses the view that there is a serious risk that imprisonment would have a significant adverse effect on your mental health.
18 This assessment is of course relevant to your history of prior psychiatric admissions to which I earlier referred. You have been admitted following incidents of suicide attempts and self-harm from the time you were in your early 20's up until the last admission, which I was told was approximately five years ago, when you were aged 33. During those admissions, you told your counsel that you had been treated in Hong Kong for what you described as a condition of depression.
19 Dr Cunningham describes your present condition as being a severe condition that will require psychological and psychiatric intervention over a number of years.
20 You come before me as a person without prior convictions. You entered a plea of guilty to both charges at the first available opportunity. You have remained in custody since your arrest on 30 September 2011 and, as at today, I understand that you have spent a total of 235 days in custody.
21 The only other persons in the Dame Phyllis Frost Centre in which you have been detailed for all that time who speak Cantonese is your co-offender. Thus you have been effectively isolated from other prisoners and from the programs available within the prison for the past 235 days.
22 Further, upon your arrest in Australia, your son was taken into care by the relevant authorities in Hong Kong. He has now been placed with a foster family somewhere in Hong Kong. You do not know his whereabouts. You have had no contact with him and you do not wish him to know of your imprisonment. It is clear from the plea that you are desperately anxious about him and this is particularly so given your own history of abandonment as a young child.
23 Your counsel submitted to me that the evidence disclosed that there would be significant hardship on your son by reason of your imprisonment and that I should take that hardship into account in sentencing you today. Under s.16 of the Crimes Act, I am permitted to do so only if I find that this hardship constitutes exceptional circumstances. Your counsel submitted that I should so find, bearing in mind the fact that your son has no family in Hong Kong, that he does not know of your circumstances, and that there is significant physical difference between you.
24 However, although I acknowledge the tragedy of your circumstances, I do not find those circumstances constitute exceptional circumstances. Mothers and their children are frequently separated by imprisonment. Your separation from your child is a direct consequence of your decision to come to Melbourne without him and to engage in significant criminal conduct here.
25 Having said that, and although I accept that there is no evidence to suggest that he is being mistreated in Hong Kong, I accept that the separation between yourself and your son is of great significance to you and by reason of the matters that I have outlined, it renders your imprisonment particularly onerous.
26 Your imprisonment is also significant and more onerous, I accept, than would otherwise have been the case given that you have no family either here or in Hong Kong and no friends in Australia and you have no one except your co-offender with whom you can converse whilst in prison. You do not have the advantage of any visitors whilst you are in prison.
27 Your counsel submitted to me that in accordance with the well known principles in the case of Verdun, the sentence which I should otherwise impose should be significantly ameliorated by reason of all the matters to which I have just referred. That is, your mental condition in combination with your cultural, linguistic, physical and social isolation in prison as I have earlier described.
28 I accept that those are significant matters to be taken into account in sentencing you today and that those matters make your imprisonment additionally burdensome.
29 In sentencing you, I need to consider and apply the matters set out in s.16A of the Commonwealth Crimes Act. Although it is not set out in that act, it is also clear law that I must take into account general deterrence. Clearly, general deterrence is of critical importance in sentencing you today.
30 The offences such as you have committed are very difficult to detect. In committing the offences, you assisted in deceiving an innocent international student who did not know of your criminal activity or her unwitting role in that criminal activity.
31 I do not think I need to amplify the dangers to the community of the drugs which you attempted to import. The illegal drug trade is responsible for enormous harm in our community. It ruins young lives. It causes death. Persons who attempt to facilitate that trade in the way that you did deserve a very severe punishment. That punishment must reflect the community's denunciation of this activity and deter others who may be tempted to engage in what seems like a very easy offence to commit and a very difficult offence for the authorities to detect.
32 It is particularly important in this respect to note the apparent ease in which the importation of drugs of such a very large value was able to be achieved with minimal risk of apprehension, using the strategy I have outlined and a strategy of which you were an integral part.
33 In sentencing you, I note that the offence is an offence of attempting to import rather than of actually importing the drugs concerned. In your case, the fact that the attempt was foiled by the police makes little difference to your culpability. You believed that the drugs which you collected were genuine.
34 In sentencing you, I must make an analysis of your role in the criminal offending before me. Your counsel submitted that I should see you in the position of being merely a courier. She submitted that the evidence showed that all you did was collect the packages. All the directions were provided by the man who you had met in Hong Kong. She asked me to see you as acting at his direction and at a significantly lower level in the hierarchy. She submitted that the evidence was that you did nothing at all without his direction.
35 The prosecutor submitted, on the other hand, that your role was significantly greater than that of a courier. He described you instead as an intermediary, higher up the chain. He pointed out that you came specifically for the purpose of collecting the packages. He pointed out that you were at all times one step removed from the risk in that your entry into Australia was not associated with the package. You brought no drugs into this country with you. You did not run the risk of being searched and found out. You were in direct contact with the importer and contacted the student frequently. You also paid the student for her delivery.
36 The prosecutor asked me to take the payment into account as an indication that you were trusted by the hierarchy of drug importers. Further, you took the drugs to a pre-arranged address and unpacked them. The prosecutor submitted to me that all these matters put you at a much higher level of involvement than that of a mere courier and that your role was a significant one in the criminal operation that I have described.
37 I accept that there is no evidence that you had any idea as to the value of the drugs that were being imported. I also accept that you were not involved in converting the drugs into a saleable product or in any part of the operation apart from the collection of drugs. However, I do not accept that you were merely a courier. I take the view that you should be sentenced as a person with significant involvement in the process of collection.
38 I accept that otherwise for these offences you are of good character and that you are a mature woman with family responsibilities. I understand that you will be deported as a result of this conviction upon the completion of your sentence. Your aim is to return to Hong Kong as soon as possible and to set into train the necessary arrangements to have your child living with you again. Your counsel submitted to me that you are his whole world. Clearly, that aim will be made difficult as a result of the sentence which I will impose on you today as he will be an adolescent by the time you are able to return to Hong Kong.
39 The prosecutor submitted that an appropriate sentencing range, having regard to all these matters, was a period of four years six months with three to four years to serve. The prosecutor submitted that that estimate took into account a sentence of three and a half years on each count with some accumulation to reflect the fact that there are two separate charges against you.
40 Your own counsel made no specific submission as to sentence, except to say that the prosecution range was too severe once the mitigatory factors I have outlined are taken into account.
41 Ms Lam, having taken into account all the matters which I have outlined in these sentencing remarks these are the sentences which I will impose. On Charge 1, being the charge of attempting to possess a substance being a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely cocaine, and the quantity being a marketable quantity, you are convicted and sentenced to be imprisoned for three years. That sentence commences today, that is the 21 May 2012.
42 On Charge 2, being the charge of attempting 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 marketable quantity, you are convicted and sentenced to be imprisoned for three years.
43 As I have said, the prosecutor urged me to consider some cumulation of the sentences. However, although it is clear that each of the offences you have committed is a discrete offence, there was only one common set of actions which you undertook in relation to both. There was only one delivery. I take the view that I am sentencing you to one course of criminal conduct. In those circumstances, it is my view that each of those sentences should be served concurrently. This means that the second sentence also commences today, that is 21 May 2012. The effective sentence will be a sentence of 3 years' imprisonment.
44 In relation to each of these sentences I order that after serving 24 months of the sentence, you be released on a recognisance release order in the sum of $500. I note however, as I have previously indicated, that I understand that on your release on parole it is anticipated that you will be detained in an immigration detention centre and thereafter be deported back to Hong Kong.
45 I declare that the period of 235 days spent by you in custody as at today be reckoned as time already served under the sentences that I impose today. Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these offences then the effective sentence which I would have imposed would have been a sentence of imprisonment for 4 1/2 years.
46 I will reserve leave to the Crown to make an application for forfeiture should it later be required.
HER HONOUR: Are there any other matters?
MR SILBERT: Your Honour, there are some matters that I might raise in relation to the sentence. I note that Your Honour - - -
HER HONOUR: I'll just - Ms Lam, you can sit down. Yes?
MR SILBERT: Your Honour, I note that you expressed that the sentence was commence today. You did say 9 May. Today is the 21st. I just wanted for you to clarify that the sentence is to commence from 21 May.
HER HONOUR: I'm sorry, from 21 May.
MR SILBERT: The order that Your Honour wants to take effect after 24 months is the recognisance release order.
HER HONOUR: I was really just going to make a parole order. Do I have to make a recognisance release order?
MR SILBERT: If the period is three years or less, it has to be recognisance release order, yes.
HER HONOUR: I see. All right. Rather than being "released on parole", "released on a recognisance release order in the sum of $500."
MR SILBERT: Yes, thank you, Your Honour.
HER HONOUR: Your instructor will prepare the recognisance release order?
MR SILBERT: Yes, Your Honour. We have one.
HER HONOUR: Are there any other matters?
MR SILBERT: Not from the prosecution, Your Honour.
MS McCANN: Not from my point of view, Your Honour.
HER HONOUR: Thank you. The order will have to be entered into the system so what I'll do is I'll leave the Bench and then I'll have to sign the order. I won't ask that the prisoner be removed at this stage. I'll simply leave the Bench and my Associate, in conjunction with you, will prepare the order.
(Short adjournment.)
HER HONOUR: I understand the order has been amended to reflect the fact that it will be a recognisance release order after two years rather than a non-parole period. Yes, Ms Lam, if you could stand up.
Ms Lam, I have sentenced you to three years' imprisonment. I will order that after you have served 24 months, that is two years of the imprisonment, that you be released on a recognisance release order. I need to explain that to you and the I will have my Associate bring a document which the interpreter will need to explain and your counsel will be able to explain to you and what I need to say to you about that is this.
What the recognisance release order means is that you will be permitted to serve the term imposed on you in the community. That will of course be subject to you being in custody in relation to the circumstances of your potential deportation but you will be subject to a condition that you be of good behaviour during the operational period of the order and that is for two years from today. I must inform you that if you fail without reasonable excuse during that two years to fulfil or comply with a condition, you may be brought back before me and the order will be revoked and cancelled., the sum of $500 will be forfeited and you will be dealt with for the offences in respect of which these orders have been made.
I am also required to inform you that the Crimes Act enables you in certain circumstances to apply to the court for a discharge or variation of the recognisance release order.
What I need to know from you, Ms Lam, is whether you are prepared to sign the recognisance release order and I will now have my Associate bring it to you. I will myself sign it and I will have my Associate bring it to you and, Ms McCann, I will give you permission to approach the dock so that you can explain this as well.
MS McCANN: I have asked my instructor to approach her for that purpose, if that's suitable.
HER HONOUR: I see. Yes, I'm happy for that to happen. Yes, thank you. Now, Ms Lam, I have sentenced you to three years' imprisonment. I have ordered that the time you have already spent in prison should be taken into account in that sentence. I have ordered that after serving 24 months in prison, you will be released on a recognisance release order which you have signed. Thank you.
PRISONER REMOVED
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