Director of Public Prosecutions v Lau
[2022] VCC 1724
•5 October 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR 21-01088
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOY WENG LAU |
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JUDGE: | HIS HONOUR JUDGE MCINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2022 | |
DATE OF SENTENCE: | 5 October 2022 | |
CASE MAY BE CITED AS: | DPP v Lau | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1724 | |
REASONS FOR SENTENCE
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Catchwords: ATTEMPT TO POSSESS A MARKETABLE QUANTITY OF A BORDER CONTROLLED DRUG – METHAMPHETAMINE – PLEA OF GUILTY – IMPRISONMENT
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Simone Tatas | Ms Zoe Hough |
| For the Accused | Mr Mathew Senia Ms Rabea Khan | Gallant Law |
HIS HONOUR:
1In this matter of Hoy Weng Lau, he was arraigned on 28 September 2022 on a Commonwealth indictment. He is aged 61 and was 59 at the time of the offending, having been born in July 1961.
2He resided at Stanworth Court Preston at the time and was a plasterer.
3
The indictment that was pleaded to involves one charge under the
Commonwealth Criminal Codepursuant to s307.9(1) of attempt to possess a marketable quantity of a border controlled drug suspected of being imported.
4The quantity that Mr Lau has pleaded guilty to is 730.8 grams of methamphetamine. The threshold for a marketable quantity is two grams, and it is to be noted that the next level of commercial quantity is 750 grams.
5Pursuant to s11(1) of the Code, Mr Lau is charged with an attempt, and of course the penalty is exactly the same albeit, of course, he can only be sentenced for an attempt, the penalty being 25 years' imprisonment and/or 5000 penalty units.
6
Mr Lau has been in custody since 14 September 2020, which is approximately
two years and one month, and the PSD agreed, not including today, as 751 days.
7Exhibit A was tendered and demonstrated the circumstances involved. There were two co-accused, a Mr Ang and a Mr Lim, however, neither of those have been dealt with yet. One has been to trial, but the matter is to be re-tried apparently, and another is to be dealt with in due course.
8Both lived with Mr Lau at the home, equally they were Malaysian, and all were unlawful residents at the time. The drugs were ordered by way of use of phone and WeChat's conducted on Mr Lau's phone. Those interceptions began on 29 July 2020 and the details of both the calls and WeChat's are contained in the opening, Exhibit A.
9The interception of the drugs took place on 29 July 2020, and subsequently the items were substituted. The surveilled delivery took place on 14 September 2020 and concerned what is known as consignment No 2, and within a very short time of delivery to Lau's address, the police swooped by way of warrant and Mr Lau was arrested.
10The plea indication in this matter was given on 8 December 2021. Exhibit A, the prosecution opening, was agreed to by Ms Khan but for two matters. They were two factual issues dealt with in the plea. The first concerned the state of mind of the accused, albeit that all that was needed for the elements to be complete in regard to establishing this charge was the state of mind of recklessness. The prosecution were maintaining that Mr Lau had a state of knowledge, that is which was such that he knew the item was a border controlled drug and that his criminal actions, were in fact intentional.
11Having heard the submissions and the evidence relied upon by the prosecution, which was essentially the matters set out in Exhibit A, I determined on the day of the plea upon the totality of the evidence, beyond reasonable doubt, that Mr Lau did have knowledge that what was being delivered to him was indeed a border controlled drug.
12The second issue as to the accused's knowledge as to the person Mr Howard under whose name the items had been ordered, in fact did not exist. I did not have to decide that issue as that matter was not pursued by the prosecution.
13The offence of which Mr Lau comes before the Court by way of his plea is clearly of high objective seriousness given the penalty prescribed. The applicable sentencing principles are as follows:
(a) While a number of cases that I am about to quote relate to trafficking crimes, the principles expressed apply by analogy to this offence, albeit an attempt, and in this regard see the case quoted by the prosecution of Adegoke v R [2013] 234 ACR 280 [443].
(b)
As a general approach to sentencing in crimes of this type,
Nettle JA, as he then was, said in R v D'Aloia [2006] VSCA 237 [56]: "So far as the effects of … MDMA are concerned, the matter may still be approached on the basis that all of the drugs which are prescribed have deleterious consequences of anti-social proportions, and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence".
(c)
Sully J in R v Cheung Wai Man (unreported NSWSC
22 March 1991) relating to the trafficking of drugs stated: "Such a crime is in a very real sense a declaration of war on the community. It is a distinct challenge both to the concepts of human dignity and to moral values, otherwise which are fundamental to our way of life".
(d)
Usually in such sentences, I also quote Wells J in
R v McLeish[1982] 30 SASR 487 where he bemoans the fact that courts rarely have the opportunity to pass sentences on principles in regard to crimes of this dimension, however, he made this general comment at page 492: "It seems to me to follow that after making all due allowances for personal circumstances and antecedents of the prisoner, the facts of a particular case and the need to show such mercy as is compatible with the safety of the public, the Court should impose such a sentence, as will spell out clearly to those minded to establish or continue an unlawful organisation for providing drugs, as well as to potential recruits, the simple truth that a man who participates in such an organisation, at any level - and I repeat at any level - must expect, and will receive, a heavy penalty".
(e)
Again, as to a trafficking crime, with the same qualification, I refer to the
High Court decision of DPP v Dalgliesh (a pseudonym) [2017] 91 ALJR 1063, which does not dissolve the need for an uplift in sentences as detailed by the Court of Appeal in Gregory (a pseudonym) v R [2017] 268 ACR 1 and Fernando v R [2017] VSCA 208. Albeit that such uplifted sentencing practice is not a "controlling factor", it cannot be ignored (Condo [2019] VSCA 181 [20]).
(f) Trafficking methamphetamine is a prevalent offence, which means that the weight to be afforded to general deterrence should be increased, such offences harming the community for the criminal's own profit (Condo [22]).
(g) As was said by the Court of Appeal in Gregory and Fernando, any attention to individualised sentencing must necessarily have a sharp focus to the maximum penalty, the respondent's role in the drug enterprise, the quantity of the drug actually transacted, and the period over which the offending occurred (Condo [30]).
(h) As to quantity, I refer to R v Pidoto and O'Dea [2006] VSCA 185 [38-41]. The maximum penalty prescribed is always a yardstick, especially in a quantity based regime (Condo [28]). And further, in Nguyen v R [2010] VSCA 127 [19] where the Court of Appeal said this: "It is, of course, irrelevant which drug is being cultivated. So much was made clear by the decision of this Court in Pidoto. Since that 2006 decision, the sentencing regime has remained unchanged … as the Court said in Pidoto, this is a quantity based sentencing regime. Although quantity will not bear an arithmetic relationship to sentence, the quantity involved is a very significant matter in sentencing in these matters".
(i) I also refer to Paragraph 33.8.2.3 of the JOIN Victorian Sentencing Manual warning that, of course, quantity is not the sole determinate of gravity.
(j) Finally, given the profits contemplated with a crime such as this, and in so far as methamphetamine is concerned, the concept of the role played in this sentence being a "counterweight to reward" as detailed in Topal v R [2019] VSCA 289 [52] must be taken into account.
14As to sentencing, I was referred by the prosecutor to a number of cases (Exhibit B). While I have considered all those cases as illustrative yardsticks, I refer in this regard to the comments of the High Court in R v Pham [2015] 256 CLR 550 [29] where the High Court said this: "Where … decisions of other courts in sentencing appeals are referred to in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as "yardsticks" that may serve to illustrate … the possible range of sentences available. A court must have regard to such a decision in this way unless there is a compelling reason not to do so …"
15Coming then to Mr Lau's role in the offending. In Exhibit C, the prosecution submissions on sentence, the prosecution accept that Mr Lau is not a principal, but submitted he played an important role in providing an address for delivery, being present upon delivery, and leaving the drugs at the premises at precisely the place that he was instructed and unopened.
16Further, Ms Khan put, and it was accepted, that he was not an organiser, or on the evidence involved in the further distribution of the drugs. Ms Khan also put that the Court should take into account that the duration was short, that is Mr Lau's role would appear to have taken place over a period of two weeks. One must accept that because there is simply no other evidence. This submission is always somewhat limited, because whether the duration is short or not, the fact is Mr Lau's been involved in a very serious crime.
17I accept all of those propositions; however, I refer again to my reference to the situation and the danger of any role in such circumstances set out in the comments of Wells J in McLeish.
18As to motive, it was accepted by Ms Khan that the motive of Mr Lau being involved in such a serious crime was clearly financial. She submitted that he was vulnerable by his economic circumstances, and I do accept that. However, the fact is that for a profit, Mr Lau decided to partake in this very serious crime.
19The prosecutor submitted the appropriate sentence was jail with parole, and that that sentence would not allow a sentence to be given under s19A(c) of the Commonwealth Crimes Act.
20Ms Khan accepted that imprisonment was the only option in this situation.
21Coming then to the plea of Ms Khan on behalf of Mr Lau. Ms Khan submitted that the amount of time to date, which has now been agreed at 751 days, must be a matter of mitigation on the basis of the circumstances being that throughout that period Mr Lau has been subject on remand to the Covid restrictions being by way of general restrictions, lockdowns, risk of contracting Covid itself, and of course limitation of any visitors.
22Ms Khan further submitted that the Court must take into account as a substantial mitigating factor the fact that the plea was entered of guilty, that such is utilitarian, an indication of remorse, and of course it assists the attainment of justice. In this particular, she also relied on Worboyes v R [2021] VSCA 169 [39] and the enhanced discount that is appropriate where a plea is entered in circumstances where the justice system is strained, to say the least.
23I have also taken into account that at the end of the plea, Mr Lau voluntarily proffered to the Court a verbal apology where he said that he recognised the seriousness of his criminality and that his role was serious in the sense of creating a risk to the community from the drugs that were brought into the country through the crime that he was involved.
24I accept that his age and health, his post-arrest mental health, the adjustment order suffered while in jail and the isolation while in jail, due to his language, are all factors of mitigation which need to be taken into account.
25I reject Ms Khan's submission based on Bugmy v R [2013] HCA 37. While I accept life in Malaysia where he was brought up was such that he was a member of a very poor society with limited employment skills, I find there was indeed presented to the Court no evidence as required as to profound childhood deprivation such as may explain this criminality. As the prosecution submitted in their submission, the facts here are in no way reminiscent of a Bugmy situation (Exhibit C, in particular note 24).
26I should also add that working strongly against such submission by Ms Khan as to Bugmy is the fact that Mr Lau has lived his whole life, at least to the knowledge of the Court, up to the age of 61 without any criminality, that is without any criminal convictions or criminal involvement that we are aware of, and as I understand it, no prior anti-social behaviour.
27I come then to Mr Lau's mental condition. The matters described in the report of Dr Harridge psychologist (Exhibit 3) are such that I accept that Mr Lau faced particular difficulties when his father succumbed to a fatal illness and decided, in order to ensure that he did not suffer untold pain, to suicide. Unfortunately, that suicide was observed by Mr Lau, and he felt some guilt apparently from the comments of his mother being made whereby he could not stop his father. He suffered issues in regard to that observation thereafter, in particular with his sleep. However, as stated by Dr Harridge (Exhibit 3 [76]) such occurred in his early 20s, no doubt the adjustment disorder that he is currently suffering, and the prospects of jail and the isolation have led to a reoccurrence of such issues with his sleep when first imprisoned (Dr Harridge's report [79]).
28
Verdin's principles were not put as a reduction of culpability, and I do not accept the "factors of likely contribution" to such behaviour which was postulated by
Dr Harridge in his report at [81].
29However, I do accept that Verdin's principle 5 is applicable owing to the language problem that Mr Lau would have in jail, the isolation caused by that, and the current restrictions of the adjustment order of which he has suffered, and that the fact is, given his circumstances, he has no support. I find that the combination of those factors are such that the service of a jail term will weigh more heavily on Mr Lau than a person in normal health (Verdins [32]).
30I accept Mr Lau's likely rehabilitation, given his history, and that he wishes to return to Malaysia to live out the rest of his life as soon as he can (Exhibit 3 [87]).
31I accept his apology made to this Court that I have referred to as being genuine.
32May I finally say that in accordance with the pronouncements of the High Court in Dalgliesh, the prisoner is entitled to individualised justice and a just sentence based upon the facts relevant to his case.
33Taking all those factors into account, and in particular the factors set out in s16A of the Crimes Act 1914 (Cth), put to me by both counsel, I intend to sentence as follows: Mr Lau, you may remain seated:
(i)
Mr Lau, you will be convicted of the breach of s307.9(1) of the
Criminal Code Commonwealth.
(ii)You will be sentenced to a term of imprisonment of six years.
(iii)
In so far as that sentence is concerned, the period imposed that you must serve prior to being eligible for parole is
four and a half years.
(iv)I declare pursuant to s18 that the 751 days that you have served to date, not including today, be deemed to be service of this sentence, and the declaration to that effect be recorded in this Court.
(v)While there is some conjecture as to whether a declaration under s6AAA of the Victorian Sentencing Act is required in Commonwealth matters, I will make such a declaration, and the benefit of such declaration, Mr Lau, is to demonstrate to you the importance of your plea of guilty. Can I indicate to you that had you not pleaded guilty, the sentence that I would have given you would not be the six years with a minimum of four and a half which I have given you today, but a sentence of eight years with a minimum of six years.
34Do either counsel have any questions in regard to any of those matters?
35MS TATAS: No, Your Honour.
36MR SENIA: No, Your Honour.
37HIS HONOUR: Yes. Mr Senia, do you want some time over the Webex to talk to your client?
38MR SENIA: Your Honour, I would be grateful for that opportunity.
39HIS HONOUR: Is that all right, Mr Tipstaff, can we do that?
40TIPSTAFF: Yes, Your Honour.
41HIS HONOUR: We've got plenty of time left. Yes, all right. Well, I'll allow that. Good luck, Mr Lau, I hope you serve your sentence well and get yourself back to Malaysia as soon as you can as you want. And thank you again for your apology. Thank you, Madam Interpreter.
42INTERPRETER: My pleasure, Your Honour. And Mr Lau is deeply grateful for your sentence. Thank you very much.
43HIS HONOUR: Thank you.
44MS TATAS: As the Court pleases.
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