Director of Public Prosecutions v Lam

[2015] VCC 512

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00313

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAI LAM

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 April 2015
CASE MAY BE CITED AS:	DPP v Lam
MEDIUM NEUTRAL CITATION:	[2015] VCC 512

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K Breckweg
For the Accused	Mr J McLoughlin

HIS HONOUR:

1Wai Min Lam, you can remain seated for the time being.  You pleaded guilty to an indictment charging with importing a commercial quantity of a border controlled drug, namely methamphetamine, between 29 October 2014 and 5 November 2014.  The maximum term of imprisonment for that offence is life imprisonment.  You have no prior convictions.

2The prosecution tendered and read to the court a plea summary which is Exhibit A.  That was read on the last occasion.  I am not going to read it again.  Suffice to say that it sets out the circumstances in which you came to Australia on 13 August 2014.  From the subsequent events set out in the evidence and in the summary, it is clear that you came for the purpose of facilitating the importation and distribution of a commercial quantity of methamphetamine.

3It is clear that the enterprise to which you attached yourself was a substantial criminal venture, committed for the purposes of substantial financial gain.  The quantity of pure methamphetamine imported was 4631.3 grams.  The minimum commercial quantity prescribed by law is 750 grams.

4It is estimated that the total street value of the methamphetamine imported was in the order of six million and fourty three thousand six hundred dollars.  I have no doubt that you committed this offence for your own financial gain.  There was a deal discussion during the course of the plea hearing about the precise level in the criminal venture at which you were engaged.  I think it was accepted by both sides that your role was in the nature of a courier albeit that you were also responsible for the first stage at least, of the distribution of the drug within Australia.

5I think it is fair to put you in the category of a courier in those circumstances, because clearly, you were the person recruited to this criminal venture, to take the substantial risks inherent in the collection of the drug after it had arrived in Australia.  You were therefore required to make yourself visible and others within the organisation could conceal their identities behind yours.

6I am not inclined to accept that you told the whole truth about your role in the answers you gave to police questioning after your arrest.  On the other hand, I do not see sufficient evidence to put you in a category higher than that which I have endeavoured to identify.

7Needless to say, that categorisation still constitutes very significant offending conduct.  Had you been identified as a person with an investment in and an expectation of a share in the profit of this, then the sentence that I intend to impose would be considerably higher.  However, I am inclined to accept that you were participating in this offence for a fee or fees which were perhaps primarily designed to get you out of debt which you had incurred in China and perhaps to reap some benefit over the top of that.

8Clearly offences of this kind must attract terms of imprisonment of a substantial length even for persons who act as the risk taker at coal face in the enterprise.  The sentence must be one that not only punishes you adequately but has a capacity to deter others from participating in crimes of this kind for whatever reason.

9Having said all that, your counsel provided me with an outline of submissions which is Exhibit 1 on the plea and a letter from your sister and some photographs which show you in happier times with members of your family at home in China.

10It seems clear and I accept that you have had a difficult life, in that you are a lesbian in a society which does not, it seems, readily accept that sexual orientation and perhaps more importantly, in a family which has not readily accepted that sexual orientation.  I have no doubt that you have found life difficult at home and in pursuing opportunities for work in life, difficult in society in China.

11I accept that this has led you into bad company, but certainly into bad habits, in terms of excessive drinking and excessive gambling.  That in turn, has led you into debt which placed you in a vulnerable position to be approached to fulfil your part in this criminal venture.  That does not excuse your conduct but it does provide some context to the choices that you made in joining this criminal enterprise.

12You were 26 at the time of the offending, 27 now and due to be 28 in June of this year.  You came here on a tourist visa and that of course will have expired.  You are likely to be deported at the end of your sentence.  It was made clear during the course of the plea hearing that that fact is not to be regarded as a factor to be taken into account in reduction of sentence in your case, because you will be pleased to be going back to China and no doubt to get a free flight home at the end of your sentence.

13It is not a case where the prospect of deportation at the end of your sentence is likely to weigh heavily and make your life in custody more difficult during the time you are serving sentence.  However, it I think is clear that you will find your time in custody difficult for other reasons.

14You are separated from your family and friends in China.  You will have cultural differences between you and your fellow inmates in prison.  You will have language difficulties although I understand that you have been using your time wisely and learning English and it seemed plain that you had acquired some English from some of the responses you made during the course of the plea hearing.

15It is to be taken into account in reduction of sentence, that you will find in time, harder for those reasons albeit that you came to Australia knowing that you were taking risks and knowing that if by chance you were caught, then you would be ultimately incarcerated.  So it is a moderation of sentence that is not as great as would be applied to somebody who had not come to Australia and for those reasons and in those circumstances.

16You have pleaded guilty and co-operated with authorities.  That is to be taken into account in your favour in reduction of sentence.  Not just because it saves the state, the cost of the trial and the witnesses the inconvenience of attending, but generally because it facilitates the administration of justice and it is consistent with remorse.  It is submitted on your behalf and there is some evidence to support the fact that you are now remorseful for your conduct.

17You will have to face the shame when you go back, of what you have done and the fact that you have been in prison in a foreign country.  That is something which is a natural consequence of your conduct.  Your plea of guilty was at the earliest reasonable opportunity.  You have no prior convictions.  I think that it is fair to say that your prospects of rehabilitation should be regarded as good.

18You have reached the age of 26 without having committed any criminal offences and although you will face difficulties when you return to China, I see no reason to treat you as a person other than one who will have learnt a significant lesson from this and will lead a productive and honest life in the future.

19You are still relatively young and you have a good deal of your life ahead of you and therefore I think it is fair to make the assumption in your favour that this will have been a stern lesson for you, having been caught and being imprisoned in a foreign country.

20I have to take into account the terms of s.16A(1) of the Commonwealth Crimes Act and impose sentence which is appropriate for the conduct in which you engaged and I have to take into account the number of the sub-sections in s.16A(2).  I think I have covered those which were said to be relevant during the course of the plea hearing and I, of course, am required to give proper value to the sentencing principle of general deterrence which is of particular importance in cases such as this.

21I am required to impose a sentence that deters you from committing further offences of this kind and also to take into account the need to facilitate your rehabilitation as much as I reasonably can in all the circumstances.  That is not always an easy balancing exercise.

22At the end of the day, it seems to me that the sentence that would otherwise be required for your role can be moderated to some degree by the factors personal to you and the difficult background that you have had and the factors which led you to getting into bad company in China and made you vulnerable to being the risk taker in a venture such as this.  Otherwise a sentence would be significantly higher than that which I intend to impose.

23On the plea, your counsel submitted that I should impose a sentence of imprisonment with a recognisance release order which would give you a date certain, essentially for your release which would of course, be expected to be into immigration detention and then to deportation shortly afterwards.

24Ordinarily for the kind of sentence that I would have in mind, the sentence would involve the setting of a non-parole period.  In times past and up until quite recently, where a non-parole period was set for a commonwealth offence, it would result in immediate release at the end of that non-parole period.

25That I am told, is no longer the case and I think therefore, that there is some value in acceding to your counsel's submission and imposing a sentence with a recognisance release order at a time that will enable your release approximate to where I would set a non-parole period.

26In doing my best to balance all of those factors and noting that it is common ground that there is no other punishment appropriate than an immediate custodial sentence, I am ready to impose sentence upon you.  So would you please stand?

27For the offence of importing a commercial quantity of a border controlled drug, namely methamphetamine, I convict you and sentence you to a term imprisonment of six years and set a recognisance release order which will permit your release on your own recognisance of $1000 after you have served a period of three years and nine months.

28What is the pre-sentence detention?

29MS BRECKWEG:  Sorry, Your Honour, it is 143 days effective including today.  So if we excluded today ‑ ‑ ‑

30HIS HONOUR:  One hundred and fourty two days.  All right, do you agree with that ‑ ‑ ‑

31MR McLOUGHLIN:  I did a quick calculation sitting at the Bar table and I made it more than that, Your Honour.  So it may ‑ ‑ ‑

32HIS HONOUR:  Well look, I would rather you agreed on it if you can, because I do not really want to make an order that I have to amend.

33MR McLOUGHLIN:  Correct, yes.

34HIS HONOUR:  So will I give you a few minutes just to sort that out?

35MR McLOUGHLIN:  Just to check, yes.

36HIS HONOUR:  All right, well I will the Bench whilst you do that.

37MR McLOUGHLIN:  The other thing is, Your Honour, I think the prisoner was 27 by my calculations.

38HIS HONOUR:  Twenty seven at the time of the offence?

39MR McLOUGHLIN:  Offence, yes because ‑ ‑ ‑

40HIS HONOUR:  Is that right?  Yes, all right.

41MR McLOUGHLIN:  We have to get used to it all happening a lot quicker than it used to because it was only August last year.

42HIS HONOUR:  That's right.

43MR McLOUGHLIN:  Yes, so she turned 27 in June.

44HIS HONOUR:  In June and she came to Australia when she was 26, but ‑ ‑ ‑

45MR McLOUGHLIN:  No, August I think she arrived.

46HIS HONOUR:  Did she?  I thought it was earlier than that.  I thought it was ‑ ‑ ‑

47MR McLOUGHLIN:  Unless I got the year wrong?

48HIS HONOUR:  No, you are right.  Yes, thank you.

49MR McLOUGHLIN:  As Your Honour pleases.

50HIS HONOUR:  We will all agree to ‑ ‑ ‑

51MS BRECKWEG:  Your Honour, may I ask before you leave the Bench, what a period of good behaviour was?

52HIS HONOUR:  It will be for a period of two years.  I did not say it but I should have.  Yes.  You will draft the order, will you not?

53MS BRECKWEG:  Yes, just doing that now, Your Honour.

54HIS HONOUR:  Look, I will leave the bench while you do that and while you work out the - you can take a seat for the moment, Ms Lam.

55(Short adjournment.)

56MS BRECKWEG:  Your Honour, we have done that calculation thanks to time and date dot com.

57HIS HONOUR:  Yes.

58MS BRECKWEG:  And it is 174 days not including today.

59HIS HONOUR:  All right.

60MS BRECKWEG:  Your Honour, the recognisance has been prepared for Your Honour's checking and signature.

61MR McLOUGHLIN:  I had the opportunity to explain the signature process to Ms Lam.

62HIS HONOUR:  Thanks.  Well look, I will declare 174 days as time served on the sentence that I have imposed.

63MS BRECKWEG:  Thank you, Your Honour.

64HIS HONOUR:  That will be deducted administratively from the sentence that you will actually have to serve, Ms Lam.  I declare that but for your plea of guilty, I would have sentenced you to eight years imprisonment with a non-parole period of six years.  You will now be asked to sign the recognisance release order and Mr McLoughlin, will you accompany my associate to ensure that your client understands exactly what she is signing.

65MR McLOUGHLIN:  As I said, I did explain that to her ‑ ‑ ‑

66HIS HONOUR:  I know, but nevertheless, if you would just point out exactly what she needs to know about.  Yes, all right, I have signed the order.  So the order is now in place.  Thank you.  I will just adjourn for a few minutes.  Thank you, Madame Interpreter.

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