Director of Public Prosecutions v Lee

[2015] VCC 1796

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-02209

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID CHOONG LEE

AP-15-2795

DAVID CHOONG LEE

v

DIRECTOR OF PUBLIC PROSECUTIONS

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JUDGE:	HIS HONOUR JUDGE HOWARD
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2015
DATE OF SENTENCE:	7 December 2015
CASE MAY BE CITED AS:	DPP v Lee
MEDIUM NEUTRAL CITATION:	[2015] VCC 1796

REASONS FOR SENTENCE AND APPEAL REASONS
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Catchwords: CRIMINAL LAW – pleas of guilty to trafficking MDMA and methylamphetamine, handling and possession of firearms – 15 months’ imprisonment then release on CCO – appeal sentence of additional 3 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Prosecutor	Mr J. B. Saunders	Office of Public Prosecutions
For the Offender	Mr A. Jackson	Michael Gleeson & Associates

1HIS HONOUR: David Choong Lee, you have pleaded guilty to trafficking simpliciter in MDMA (otherwise known as ecstasy) and methylamphetamine (otherwise known as ice) (charges 1 and 2). The maximum penalty is 15 years’ imprisonment for each of those offences. You have also pleaded guilty to handling stolen goods (charge 3), for which the maximum penalty is 15 years’ imprisonment; and to possession of two firearms whilst being a prohibited person (charges 4 and 5), for which the maximum penalty is 10 years’ on each charge. 

2I must now sentence you on behalf of the community.

3There is also an appeal from the Magistrates' Court against sentence concerning drug activity in 2015, which I will deal with separately. 

Circumstances of offending

4The circumstances of your offending are set out in an agreed prosecution opening which has been read out in court. A summary will suffice. On 26 June 2014, there was a burglary at premises in Collingwood where among other items, an Apple iMac computer was stolen.  It was traced electronically to your unit in Richmond where you were using it as your own computer.  Following up this lead on 2 July 2014, police executed a search warrant at your premises.  You were not home, but the only other occupant, Jasmine Hyde, was present. Police found the stolen iMac on the table in the dining room.  It was logged on in the username of “David Lee” (charge 3).  You later told police this item had been given to you by a male in a park and that you had been using it.

5Police found in your bedroom two broken down air rifles which were wrapped in cloth and stored in a wardrobe.  At this time, you were a prohibited person because on 28 May 2014, you had knowingly been made the subject of an intervention order (charges 4 and 5).

6A number of illicit drugs and drug paraphernalia, including a number of ice smoking pipes, electronic scales and plastic deal bags, were discovered in the premises. In Hyde's bedroom and your own bedroom were discovered various amounts of methylamphetamine and MDMA.

7Dealing first with the methylamphetamine - a total of 252 grams of methylamphetamine in various quantities and mixtures with purities ranging from 70 to 90 per cent were discovered.  Hence, there was approximately 198 grams of pure methylamphetamine, although, based on an expert opinion, it is agreed there is a 20 per cent margin in this pure figure.  A commercial quantity of pure methylamphetamine is 100 grams of the drug, but you are not to be treated as having committed an offence of trafficking in a commercial quantity of that drug. An undisputed expert valuation statement indicated that this amount of methylamphetamine could be sold retail on the street as follows, the highest price of between $99,000 and $198,000 if sold in 0.1 gram lots or “points,” as they are called, or at the lowest price of between $56,560 and $70,700 if sold in 28 gram or 1 ounce lots.

8Dealing next with the MDMA - police also found 44 tablets of MDMA which contained a total of 8.92 grams of MDMA at 20 to 30 per cent purity.  This was worth between $660 and $880 if sold retail on the street at a price of $15 to $20 per tab.

9Police also found a black notebook belonging to Hyde in which various notes were contained, detailing dollar amounts and street names of illicit drugs including methylamphetamine and MDMA. There was also a letter from Hyde to you which related to drug dealing between the two of you, and to money owed by her to you for drug trafficking.  Her phone contained photos and videos of you in possession of bags of white powder, believed to be drugs of dependence. 

10Hyde subsequently pleaded guilty to drug trafficking, but concerning much lower amounts of methylamphetamine and MDMA than those which concerned you.  She also pleaded guilty to trafficking in ketamine. She had no priors and pleaded guilty at the earliest possible time, well before committal.  She served about one month in custody.  She avoided a prison sentence and was released on a community correction order by Judge Wilmoth on 20 May 2015.  Her Honour's findings are not in dispute, that Hyde was a 21 year old homeless drug user with no money.  She was from the Northern Territory and you allowed her to stay at your place.  You were already involved in drug trafficking by that time and she began to help you in an effort to get money to support her drug habit. It does not appear that you were romantically involved with her. 

11You concede that you supplied Hyde with most, but not all of the drugs which she trafficked.  You do not dispute that, as between the two of you, you were the principal offender and you are to be treated as engaging at a higher level of trafficking compared with her. Understandably and sensibly, you have not mounted a parity argument concerning her sentence. 

12You were arrested the day after the police raid when you gave yourself up.  You admitted to using methylamphetamine, but made no comment regarding alleged drug trafficking.  Analysis of your phone revealed a large volume of texts between you and numerous parties, including Hyde, which made reference to illicit drugs and drug trafficking.

13This information established that you had been a frequent trafficker in small quantities of methylamphetamine (points or grams) and MDMA (tablets) from the period 7 January 2014 up to the date of your arrest, a period of almost six months.  Put another way, the prosecution concede, and you accept, you were involved in low level but prolific trafficking in those two drugs.

14Hence charges 1 and 2 are put as Giretti counts and you have pleaded guilty to them on the basis that you were engaged in the actual selling of the two drugs as I have outlined and that you were in possession of the amounts of methylamphetamine and MDMA found at your premises for the purposes of sale.  All this is to be coupled with the evidence of drug activity that I have described.

Police and court process

15You were charged on 3 July 2014, and held in custody for 16 days until you were bailed on 18 July 2014.  Hence, there is 16 days pre-sentence detention up to, but not including today.  You were originally charged with trafficking methylamphetamine in a commercial quantity, given that the amount of methylamphetamine found in your premises was about double the commercial threshold.  You fought this charge at committal. 

16The prosecution ultimately conceded there would be difficulty in proving your intent to traffick in a commercial quantity, particularly given the small amounts in which you were dealing.  The matter was settled last Monday when the trial was about to commence and the present plea indictment was filed over and you pleaded guilty to the charges I have outlined.

17On 2 August 2014, you were arrested and charged with trafficking methylamphetamine.  You were remanded into custody and, ultimately having spent 89 days on remand, you were given aggregate fines and released from custody.

18On 30 October 2014, you were dealt with by the Magistrates' Court for an assault charge arising from a dispute with your former wife that occurred on 25 May 2014. You apparently pushed her against a wall, and threw some chocolate and a small statue at her.  These matters (as well as some associated matters) were dealt with at the same time as the trafficking methylamphetamine charge.

19On 24 February 2015, you were arrested again and charged with possession of .09 grams of methylamphetamine. You were ultimately convicted on that matter and released on a bond to be of good behaviour. 

20On 29 September 2015, you were arrested again in relation to drug activity.  You were found in possession of a number of drugs of dependence, being prescription medication which you were not authorised to possess. Six plastic deal bags containing a total of 31 ecstasy tablets, a crack pipe (as it is referred to), money, scales and a water pipe were also located in your possession. You were remanded in custody again and that matter was dealt with on 23 October last, when the Magistrates' Court sentenced you to an aggregate term of five months’ imprisonment, with an associated community correction order for a period of 12 months with conditions that you be under supervision, engage in drug assessment and treatment and offender programs.  That order is the subject matter of the appeal which I will deal with shortly.  You have now spent 69 days in custody on the appeal matters.

21There are no pending matters. 

Background and personal circumstances

22I will turn now to your background and personal circumstances.  These have been set out in a psychological report provided by Mr Watson-Munro dated 3 December 2015 and adopted by your counsel, in what I consider to be a very well prepared and competent plea made on your behalf.

23You are now aged 39.  You were born in Singapore in 1976.  You do not have any prior convictions.  You come from a highly successful and I infer, respected family background in Singapore and Malaysia.  You have an older half-brother who supported you in court today.  Your parents separated in 1981 when you were five.  You had not seen your father since that time and he is now deceased.

24You came to Australia with your mother and brother when you were five or six.  Your mother worked as a dentist and you had a very close relationship with her.  Tragically, she died from cancer in 1990 when you were 14. 

25You succumbed to early cannabis use in your late teens and this was followed by ecstasy use between 2000 and 2004. You commenced methylamphetamine use in 2012.  Apparently you saw a psychiatrist between 2005 and 2007 who raised the possibility of you suffering from a bipolar disorder and attention deficit hyperactivity disorder, but no medication was prescribed and I have not received any report concerning those matters.

26You had a significant relationship with a lady from 2001 and you were married in 2009.  I gather there are no children from that relationship.  You separated in 2013 due to her infidelity and this caused you much stress and you developed high levels of depression and anxiety. You commenced to use significant quantities of drugs as a means of self-medication and that was the context in which you offended on these charges. I have been told that at the time of offending, you were consuming the very high level of 1.75 grams of methylamphetamine daily. Mr Watson-Munro noted that this would have affected your judgment and I am not surprised to hear about that in the general sense. However no Verdins claim has been mounted specifically.

27Regrettably, you have engaged in significant drug offending subsequent to this offending, which has been outlined in a defence written submission.

28You are an intelligent person.  You completed Year 12 at a prestigious public school in Melbourne, although you probably underachieved due to a number of distractions, including cannabis. You excelled in your university studies, ultimately completing a degree with a double major in E Commerce and Information Management at Deakin University.  After graduating, you continued the employment you had already started whilst at university with an IT company and remained with that organisation for five and a half years. I accept you displayed at all times a very hard work ethic.  After that job, you moved to consulting and then to a Telco business for a short time. 

29By 2006, when you were aged 30, you had become a professional poker player and you continued in this pursuit for some seven years before unfortunately becoming addicted to gambling.  To your credit, you left this industry in 2012 as you realised and accepted this work was causing you significant interpersonal problems.  You have not worked since 2013. 

30On 17 April 2015, you entered into a drug rehabilitation centre called "DayHab" and I received a report in glowing terms concerning that work.  You remained at that clinic for some two weeks, undertaking an intensive program designed to deal with your drug addiction. A report written by your counsellor, Mr Sanderson, following that program indicated that you had engaged in the therapeutic process of addiction treatment and responded extremely well to the program.  You were said to have gained valuable insight into addiction and addictive behaviour and expressed genuine remorse for your offending. Mr Sanderson rather hopefully expressed the view that it was unlikely that you would reoffend or relapse again.  Unfortunately, the optimism of your treating counsellor was dashed when you were arrested on 29 September 2015.

31Since you have been in custody, you have demonstrated significant rehabilitative tendencies.  I have received a number of certificates concerning work activity, vocational preparation, community services work, cleaning operations, construction operations, information, digital media and technology, textiles clothing and footwear, kitchen operations and also a very recent report yesterday indicating that you have attended a presentation of Narcotics Anonymous at Port Phillip Prison where you have been held pending the resolution of this matter.

32Significantly, Mr Watson-Munro has noted that there has been a ‘dramatic improvement’ in you since you have been in custody.  Your judgment has been restored.  You have gained weight and developed insight into the dynamic surrounding your problems.  Attendant to this, he notes you have expressed a strong desire to undergo professional counselling and treatment.

33It is said that you have now detoxified and can be effectively treated using cognitive behaviour therapy techniques. You impress as an intelligent individual and the psychologist says “I believe that with appropriate treatment, further gains will be made in terms of his overall prognosis.”

Mitigating circumstances

34There are a number of mitigating circumstances which I accept stand in your favour and which are relied upon. 

35The first is that you are the product of a destabilised family background.  You did not have a father figure in your life and you lost your mother at a tender age.  In spite of all this, you achieved academically very highly and ultimately, obtained significant university qualifications.  You have had a long and productive work history.  I accept your counsel's summation, as he put it, that you are an educated man, who for many years led a productive life.  But in 2013 and 2014, your life went ‘pear-shaped,’ as he said, and the criminal events of 2014 and 2015 are a real departure from your previous law abiding life. The marriage breakdown that you experienced led to depression and significant drug use for which I think, it is fair to say, you have had no effective treatment up to the present.  It is sorely needed. 

36You have pleaded guilty to these charges, thus saving time, cost and inconvenience to the community.  Although the plea was made at a very late stage, at the point the trial was about to commence, the pleas are of utilitarian benefit.  You have served the ends of justice thereby and there should be a significant discount for that reason alone.

37I accept that your pleas are also associated with remorse, regret and insight for your offending, and that you have started on a commendable path of rehabilitation in prison which includes insight and the expression of true willingness to beat the scourge of drug addiction.  But you suffer from a deeply entrenched and continuing problem of drug addiction and that is demonstrated by a number of things, but particularly, your willingness to commit further offences, subsequent offences to these matters, which I have outlined. They demonstrate just how difficult a problem you are facing.  The true test will be how you cope with this problem upon your release from prison.  If you do not grapple with it in a meaningful way and get on top of it, then you can expect that you will continue to offend in one way or another as a result of the continuing addiction.  You face a very bleak future.  You will either kill yourself by an overdose of drugs, or you will end up going back to prison forever longer and longer periods. 

38I must remain guarded as to your prospects of rehabilitation, consistent with your own counsel's submissions and I note that a community correction order report that I have just received this afternoon, makes clear that you are assessed as a medium risk of reoffending.

Other sentencing considerations

39There are, of course, other important sentencing considerations. The maximum sentences must be considered, although they stand of course as a yardstick for the worst type of offending.  I must also consider current sentencing practice, which I have done. 

40Drug trafficking is a very serious offence. Charges 1 and 2 are the principal offences to be dealt with. It is significant that you have trafficked over a period of six months. Although your trafficking involved relatively small amounts of each drug, you held a significant quantity of methylamphetamine with a very substantial amount of money.

41Drugs are an insidious, harmful substance and drug trafficking attacks the very foundation of our society. It brings much hardship and sadness to the individuals involved and those around them.  I do accept that you understand that, and you have expressed words to that effect to Mr Watson-Munro.

42As to the two weapons charges (charges 4 and 5), I accept that the two weapons which you possessed were not used to breach the intervention order nor were they possessed in the course of your drug business. But you were a prohibited person because you were the subject of an intervention order against you and therefore your possession of any weapons constituted a risk to the protected person under the intervention order. This is especially so if you were, for example, to become angry and act out towards that person.  You did not do that in the end result.

43As to the charge of handling stolen goods (charge 3), it is hard to avoid the conclusion that it was connected with your drug business.  People do not usually go around handing out computers in public parks for people to have for their own use. 

44The principles of protection of community, just punishment and general and specific deterrence, especially given your subsequent offending, are all important sentencing considerations.

45On behalf of the community, I denounce your serious offending. 

46Your rehabilitation however is of importance, particularly as you come to the court as a mature offender with no prior convictions.  It is in your interest, and that of the community, that your complete rehabilitation be achieved.

Explanation of Community Correction Order

47Your counsel has submitted that having regard to all of the circumstances, it is appropriate to impose an immediate gaol penalty of less than two years in combination with your release upon a Community Correction Order. It was submitted that such an order would deal with the treatment aspects required to overcome your drug addiction as well as your mental health issues.  The prosecution did not argue against that approach, and I agree with it. I am satisfied that it is appropriate that you be sentenced to a term of immediate imprisonment due to the seriousness of your offending in relation to charges 1 and 2, conscious that such a disposition alone should be treated as a last resort by a court, particularly for a person with no prior convictions such as yourself. In reaching that conclusion, I have had regard to the general principles enunciated in the recent guideline decision of the R v Boulton.[1]

[1][2014] VSCA 342.

48I requested Community Corrections to prepare a report as to your suitability to be placed on a Community Correction Order, with an indication that I was considering the imposition of a term of imprisonment in combination with the order. I have now received that assessment report and you have been assessed as suitable for release upon a Community Correction Order. Before I can release you on such an order, I must have your informed consent.  If you do not give me your consent, then I cannot allow you to be released on that order. 

49The Community Correction Order will last for a period of two years and commence following your release from custody.  The mandatory terms, that is, the compulsory ones, that apply to all Community Correction Orders are as follows –

50Firstly, during the period of the order you must not commit, whether in or outside Victoria, an offence punishable by imprisonment, including driving offences.

51Secondly, you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011.

52Thirdly, you must report to and receive visits from the Secretary, which means the Secretary of the Department of Justice or his or her delegate.  This usually means, in practical terms, the community corrections office or officer that you are dealing with.

53Fourthly, you must report to the Community Corrections Centre specified in the order within two clear working days of the order starting, which will be upon your release from custody. The office to which you must report will be the Ringwood Community Corrections Service.

54Fifthly, you must let the community corrections office or officer know within two clear working days if you change your address, or of any change in employment that you may have, even if such change is only temporary. 

55Sixthly, you must not leave Victoria without first getting permission to do so from the Secretary or delegate, that is, the community corrections office or officer.

56Finally, you must obey all lawful instructions and directions of the Secretary or delegate, that is, the Community Corrections Office or officer.

57HIS HONOUR: Do you understand all of those mandatory terms that apply to the proposed order?

58OFFENDER:  Yes, your Honour.

59HIS HONOUR:  Thank you.  There will also be certain conditions as follows –

60Firstly, you must be under the supervision of a community corrections officer for the period of the order, being two years. 

61Secondly, you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.

62Thirdly, you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.

63Finally, you must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager.

64HIS HONOUR: Do you understand each of those special conditions?

65OFFENDER:  Yes, your Honour.

66I am not imposing any community work condition for two reasons – namely, that you are being punished by going to gaol and because I do not want you to be in a situation where you are having contact with other offenders, particularly people who may be involved with drug offending.  They are the worst people that you want to be associating with once you are released from prison.

67I must now tell you about the consequences of contravening the Community Correction Order. If you commit any offence punishable by imprisonment during the time that the order is in force, then that is a contravention of the order by further offending. You can also be found to be in contravention of the order by failing to comply with the mandatory terms or special conditions of the order which I have explained, for example, failing to attend supervision meetings.

68In circumstances where you are alleged to have contravened the order, you should expect to be brought back to this court. In the absence of any reasonable excuse, you would be found to have contravened the order and would face a punishment of three months’ imprisonment for the contravention of the order itself. Furthermore, the court may vary, confirm or cancel the order and deal with you for the original offending for which the order was made. This may involve sentences of imprisonment or the court could take no further action. 

69HIS HONOUR: Do you understand the serious consequences if you are to contravene the Community Correction Order?

70OFFENDER:  Yes, your Honour.

71HIS HONOUR:  Do you understand that you could be sent to gaol if you were to contravene that order?

72OFFENDER:  Yes, your Honour.

73HIS HONOUR:  Do you consent to the proposed order as I have explained it to you?

74OFFENDER:  Yes, your Honour.

[Discussion with counsel and CCO order signed by offender]

75HIS HONOUR:  All right, thank you. Thank you, I’ve signed that order and copies may be made for the parties. Mr Lee, please stand up if you would?

Sentence

76On all of the charges on the Indictment, charges 1 to 5 inclusive, you are convicted and sentenced to an aggregate sentence of 15 months’ imprisonment. Following your release from prison, you are to be released on a Community Correction Order for a period of two years in the terms and conditions I have outlined and which you have consented.

77[Following further discussion with counsel], the 16 days pre-sentence detention is to be treated as having already been served on that sentence and I direct that that declaration be entered in the records of the court.

78But for your pleas of guilty, I would have imposed a sentence of three years’ imprisonment, with a minimum sentence of two years’ imprisonment.

79I do propose to sign the forfeiture and disposal orders which are not objected to by you.

80HIS HONOUR: Mr Saunders, I have signed the three copies of each of those orders and I hand them to you.

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Appeal No. AP-15-2795

Circumstances of offending

81HIS HONOUR: The next matter I need to deal with is the appeal matter.  The reasons for sentence I have already given go briefly to the circumstances of the appeal offending. You were found in a motor vehicle on 29 September 2015, and were in possession of a large number, nine drugs of dependence, which were prescription drugs that you were not authorised to possess (charges 4 to 12, inclusive). You pleaded guilty to those matters and also to trafficking 31 tablets of MDMA (charge 1).

82You were also in possession of $2,000 cash (charge 3). Finally, committing an indictable offence whilst on bail (charge 13). The bail that you were on was in relation to the plea matters that I have just dealt with you upon.

83This was serious offending because it was yet again another circumstance where you had committed the offence of trafficking in a drug of dependence, in this case MDMA.  It was clear that in spite of the involvement that you had had on a number of occasions with drug dealing, drug possession and the police, you were undeterred by those experiences. And, it would seem, the treatment program you underwent at DayHab did not, in any way, meet the expectations of your counsellor or turn you against drug trafficking.

84The sentence of the court that you have appealed against is an aggregate sentence of five months’ imprisonment, with convictions on each of those charges.  You have now served 69 days in pre-sentence detention on these matters.  I agree with your counsel that these matters should be looked at in light of the principle of totality, that is, that all of your offending over a period of time should be considered, although I must have regard to the fact that your original offending took place from July 2014 and your appeal offending was more than 12 months later in September 2015. Nevertheless, it is appropriate that there be, if you like, an holistic approach to your situation, having regard to what has gone on for you in 2014 and 2015.

85An aggravating feature of your offending is that you were on bail for the plea matters at the time you committed these other (appeal) offences, although it is to be dealt with as a separate conviction for committing an indictable offence whilst on bail.  The law compels the court to make any sentence on that charge cumulative upon any other sentences imposed by the court. Given the circumstances of your repeated offending, I cannot see any reasons at all why the sentence I impose [on that charge] should not be a cumulative sentence.

86Having said that however, and having regard to the issues of totality, I do propose to reduce the sentence that was imposed by the Magistrates’ Court from five months to three months imprisonment. I will declare the period of time you have spent in custody and I think as I work it out, you have probably got about three weeks to serve on top of this and you will serve if first on top of the other sentence that I have imposed.

87I should tell you, I have had regard to all of the mitigating circumstances in your favour which I have just articulated on the plea matters. I am not going to go through all that again obviously, but my remarks on this appeal should be read in light of what I have just said in relation to the plea matter.

Sentence

88Accordingly, the formal orders of the court are that the sentence of the Magistrates' Court of 23 October 2015 is set aside and in its stead, you are convicted and sentenced to an aggregate sentence of three months' imprisonment on all charges (1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13).  Charge 2 will be marked as struck out and withdrawn. I declare that 69 days pre-sentence detention be treated as having already been served on this sentence and that such declaration be entered in the records of the Court. 

89I do not propose to given an indication under s.6AAA.

90MR JACKSON: No.

91MR SAUNDERS: No, your Honour.

92HIS HONOUR: In those circumstances, it is quite an unrealistic exercise frankly.

93MR SAUNDERS: Forfeiture and disposal orders as well, your Honour.

94HIS HONOUR: Yes, I make the forfeiture and disposal orders which are agreed to by you. Again, Mr Saunders I’ll hand down those orders.

95MR SAUNDERS: Thank you, your Honour.

96HIS HONOUR:  I ask counsel is there anything else gentlemen?

97[Discussion with counsel as to need to declare 16 days PSD]

98[Offender removed]

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