Director of Public Prosecutions v Lee
[2015] VCC 32
•28 January 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-01354
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YUEN KWONG PETER LEE |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 September 2014, 14 November 2014, 21 November 214, 23 January 2015 |
| DATE OF SENTENCE: | 28 January 2015 |
| CASE MAY BE CITED AS: | DPP v Lee |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 32 |
REASONS FOR SENTENCE
---Subject: Sentencing; plea of guilty
Catchwords: Importing commercial quantity of methamphetamine; Chinese citizen aged 62; family hardship; role of courier
Legislation Cited: Crimes Act 1914 (Cth), s.16A(2)
Cases Cited:Markovic v R [2010] VSCA 105; DPP v Bui [2011] VSCA 61; R v Verdins [2007] 16 VR 269
Sentence:5 ½ years imprisonment; Recognizance release after 3 years; 285 PSD declared
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Dhillon | Office of Public Prosecutions |
| For the Offender | Ms C. Woodward | Victorian Legal Aid |
HER HONOUR:
1Yuen Kwong Peter Lee, you have pleaded guilty to a charge of importing a commercial quantity of a border-controlled drug, namely methylamphetamine.
2The maximum penalty for this offence is life imprisonment. That maximum is for the worst possible instances of this offence, but it reflects how seriously offences of this nature are regarded by the Commonwealth parliament on behalf of the Australian community, and I must and do take that into account.
3You are a Chinese citizen born in Hong Kong. On 18 April 2014, you arrived at Melbourne Airport on a flight from Hong Kong. On being selected for a search by Customs officers, and although your baggage contained no prohibited goods, you were questioned with the assistance of a Cantonese interpreter as to the purpose of your travel. As a result of what was said, a frisk search was conducted. An abnormal bulge was detected around your waist and when questioned about that you revealed that you were carrying “Ice”. “Ice” is, of course, a common name for methylamphetamine. Three packages were found under your clothing fixed with tape to your body, one to each thigh and one to your abdomen.
4I am just going to pause here and ask - am I speaking at a pace that allows full interpreting, or would you like me to slow down or speed up?
5INTERPRETER: It's okay, Your Honour, I'm doing simultaneous.
6HER HONOUR: Thank you.
7Australian Federal Police were called and took charge of you. With the assistance of a Cantonese interpreter, a recorded interview was commenced at about 2.30 am on 19 April and you were cautioned and told your rights. You requested a lawyer but then withdrew that request, as it would have further delayed removal of the packages from your body.
8The packages were removed from you. A presumptive test was conducted on the substance in a package and produced a positive result for methylamphetamine, and you admitted during the initial interview with the police that the contents were “Ice”. You felt sleepy and explained your medical conditions, and the interview was suspended and you were given the chance to sleep and eat.
9A further recorded interview was held that afternoon, again through a Cantonese interpreter. Again, cautions and rights were explained to you. In that interview you told police that the reason you became involved with bringing the packages to Australia was financial difficulty; that you were out of a job and had been unemployed for three months, and your wife was sick and you needed money. You said you had been offered HK$80,000 on successful completion of the importation, but no money in advance. At that time the estimated conversion of HK$80,000 was approximately A$11,700.
10
You said in this interview that you had become involved because a friend you did not know well, but who knew that you needed money, introduced you to a middle man called Hau Loong, whom you called "Chicken". He had offered you HK$80,000 to do this. You gave him your passport and he arranged the airline ticket and made other arrangements. He introduced you onceathe
K-100 Café to a person you call "The Dragon", who gave you a SIM card to put in your mobile phone. You did not know whether that man was the main organiser and did not know his name.
11You subsequently received a text or phone call to go to the airport, and in the early morning of the day you travelled you met a man - I am unsure if that was again Loong - in the toilets at the Hong Kong airport, and he strapped the packages to you. The number of meetings and timeframe for these arrangements is unclear to me from the questions and answers in the interview, although you only met the man you call "The Dragon" once. I infer that it was at least some days between your friend making the first introduction, and the day that you actually travelled to Australia carrying the drugs.
12You were also provided with a voucher for three nights' accommodation at a Melbourne hotel, but you did not know who was to meet you to claim the drugs. You travelled alone. You carried a small amount of Chinese cash and a total of A$1,620 in cash.
13After forensic examination, the packages you were carrying were found to contain crystalline powder with a total net weight of 972.2 grams, and when analysed for purity, which ranged between 78.6 and 79.7 per cent, the overall estimated net weight of pure methylamphetamine was 771.4 grams- that is a little over three quarters of a kilogram. The prescribed threshold for a commercial quantity of this drug is 750 grams, so the quantity here was over that threshold, but only by 2 per cent.
14An estimation of the potential value of those drugs is between approximately A$400,000-450,000 if sold wholesale, and approximately A$972,000 if sold at street level in 0.1 gram deals at $100 per point. Both estimates are based on the imported purity.
15I must impose a sentence on you of a severity appropriate in all the circumstances of the offence, and in reaching that decision there are matters which I must take into account as set out in s.16A(2) of the Crimes Act 1914 (Cth).
16The first matter I must take into account is the nature and circumstances of the offence, which includes your role in it. As is reflected in the maximum penalty I have already mentioned, importation of a commercial quantity of drugs into Australia is a very serious offence. The impact of drugs of the nature of methylamphetamine on our community is of major and growing concern.
17While the amount carried was over the threshold for a commercial quantity, it was only a little over, about 2 per cent, which puts the quantity at the low end of importations of a commercial quantity. Clearly you did not plan or arrange this importation. The prosecution accepts that your role was as a courier. While that description recognises that there would be other people taking a more significant role and bearing greater responsibility for the offence, the role of courier is an integral and necessary one for the offence to be committed.
18Unfortunately, it is not unusual to find that people such as you are chosen as couriers because you are regarded as unlikely to be suspected or searched, having no criminal history and appearing by your background, presentation and age, to be an unlikely carrier of prohibited drugs.
19Your decision to participate formed a necessary part of the overall importation, which could not have succeeded without your role in it. As courts have recognised repeatedly, the role of courier is not to be underestimated in its importance, although in many cases such as yours it is clear that there would be others who have made and planned the overall arrangements, and also who stood to benefit to a much greater degree than you, had the plan succeeded.
20You told police at one stage of your interview, and more recently you told the neuropsychologist who assessed you, that you did not actually know that it was an illegal drug that you were carrying, thinking it was a herbal or flu remedy. However, you do admit that you knew that what you were carrying was illegal to import. To take into account as mitigatory, that is, lessening the sentence you should receive, that you did not know the drug you were carrying, I would need to accept that as a fact on the balance of probabilities. I do not accept that, because you told Customs officers who found the packages under your clothes, and before they carried out any testing, and also you told the police at the start of the interview with them that the packages contained “Ice”, the commonly used name for methylamphetamine.
21As the legislation sets out a weight-based regime for whether the amount constitutes a commercial quantity, I take that as the primary consideration and how close the total you brought was to that threshold amount. I also take into account the potential value of the importation, but as I have said, I accept that you were not to share in the profits. Rather, you were to receive an amount which, on an estimate of about A$11,700, was a very small proportion of the potential value of the importation, and only if the delivery were successful. However, as the prosecution submits, it would not have been an insignificant amount of money to you given the particular pressing need you say you had for the cost of medical treatment for your wife.
22In summary, therefore, I regard this offence as at the low end by quantity of importations of a commercial quantity, and your role as a courier as relatively low in the organisation of the importation and not giving you a share in the substantial profits if it were successful, but as an essential role for the importation to occur.
23I next take into account under s.16A(2)(f) and (g), that you were cooperative with authorities from the start, made admissions at the time the concealed packages were discovered on you, and that you have been cooperative and indicated your contrition ever since. You entered a plea of guilty at the first available opportunity, and I accept that that has not only utilitarian value, but assists the course of justice even though being found at the airport with the drugs strapped to you was always likely to be strong evidence if a trial had been required. I take into account that your early plea of guilty is consistent with your expressed contrition. I give you full credit for your admissions and plea of guilty.
24I turn now to your personal circumstances, which are relevant under s.16A(2)(m) and also (n) and (p).
25You are now aged 62. I am told that you were born in Hong Kong an only child to parents who were factory workers. You had limited schooling and apparently entered some training in mechanical servicing, then worked in process work. Subsequently you trained, by a type of apprenticeship, as a chef, and you worked more than 30 years as a chef, although I am told at relatively low-level establishments.
26You lived with your parents well into adulthood, and after your father's death you continued to live with your mother. For more than 25 years she has been confined to a wheelchair, and for many years you have had sole responsibility for her. You married in 2011 to a woman considerably younger than you and the two of you have since had a child, born in April 2013, so now aged about 21 months.
27You are said to have travelled in Asia on occasions for work and to have worked for about a year in Indonesia, although assuming that was before your marriage, I am unsure who was looking after your mother for that period.
28You have said that about three months before coming to Australia you lost your job and were unable to find another job due to your age. This resulted in your using your savings for your family's living expenses, and you were in increasing financial difficulty.
29
I am told that your wife was then diagnosed with breast cancer. The only evidence about this and her condition comes from a document written in Chinese and an English translation of it. Accepting that the document is likely to be genuine, it records that on
10 March 2014 your wife was seen at a hospital outpatient department complaining of symptoms that led to tests for suspected breast cancer. On
2 April last year that diagnosis was confirmed, with surgical removal recommended. I accept from the details in that document that her condition at that time, which was almost ten months ago, was serious. I am told that she has been unable to have the recommended surgery ever since. There is no evidence about her current medical condition, but I infer on the balance of probabilities that her condition is less likely to have improved than to have progressed, although she has apparently been able to work in the meantime.
30The cost of the surgery which you could not afford is said to have been the extra financial difficulty which motivated you to participate in the illegal importation into Australia.
31
I am told that the current situation with your family is that both your young son and your mother are living with and being cared for by your wife's parents, who live in a village in China. Your wife herself,
I was told on the first hearing in this matter, was having to work away from home to try to earn money to support the family. On the most recent hearing your counsel was under the impression that your wife was back - mainly, at least - living with her parents, your mother and son.
32While the probable effect of any sentence on your family or dependents must be taken into account under s.16A(a)(p), the common law position still applies, that only where there is exceptional hardship to family, such that to refuse to exercise mercy would be inhumane, may an otherwise warranted term of imprisonment be reduced for reasons of hardship to the offender's family. (Cases that support that are Markovic v The Queen and DPP v Bui.)
33The reason for this seemingly very unfeeling approach by courts, is that it is unfortunately common for there to be real and significant hardship caused to family members of an offender if that offender is sentenced to imprisonment. If courts failed to impose imprisonment in all such circumstances, then the other requirements of sentencing principles, including just punishment and general and specific deterrence, would be extensively undermined.
34When the hearing of this case started last September, your counsel conceded that there was no evidence to support a finding of exceptional hardship to your family. Since receipt of the document about your wife's diagnosis, your counsel argues that I could find exceptional hardship based on that material superimposed on the other circumstances of the family.
35As I have said, I accept that that document is likely to be genuine, and on the basis of its contents I am satisfied that your wife was suffering a serious medical condition which, over the intervening ten months, is more likely to have progressed than to have improved. It would be heartless not to sympathise with your wife for her condition and with the whole family for their predicament.
36Although there is no evidence about the circumstances of your child and your mother, I accept that having to live with and depend for their care on your wife's parents would be difficult, but it alone could not be said to be exceptional hardship. On the contrary, from that very description it appears that there are satisfactory alternative arrangements for their care in place, even if not ideal.
37I am satisfied that I can infer that your wife's condition, superimposed on what I am told is the situation with all the others living with her parents, is likely to have increased the stress of the situation for all of them. However, I have no evidence of the current position, including nothing about your wife's current condition and any treatment other than surgery which she may have been able to receive or could be able to receive soon. There is no evidence to indicate that your child or mother are not receiving adequate care, and no evidence that your wife's parents are not in a position to continue to provide that care.
38Given the rigorous requirements for finding exceptional hardship to other persons before taking such hardship into account in determining the length of a sentence, I am not satisfied that I have sufficient evidence of the current condition of your wife, its impact on her or your child, nor of whether circumstances are likely to significantly alter, to make a finding that to imprison you for longer would cause them or any of them exceptional hardship.
39I have, in reaching this conclusion, taken into account that the obtaining of evidence about those circumstances has been particularly difficult given language, cultural and geographical differences, but I am not able to find on the evidence available that the situation is one of such exceptional hardship to your wife or child or mother in China that I should significantly decrease the sentence I otherwise consider is required.
40It is unclear to me whether you lost your employment three months before the drug importation or three months before your first trip to Australia, which seems to have been in December 2013. That trip, to Sydney, which lasted about two weeks, you say was due to your being invited by a friend to come with him to Australia to advise him on establishing a Chinese restaurant in Sydney with the possibility that you would be employed there. If that explanation of the trip to Sydney is correct, and I have no information that it is not, you must have already been unemployed by then and also have been seeking employment out of China or Hong Kong.
41Apparently your mother has not been informed of your arrest in Australia, but only that you are still travelling. You have been in touch by telephone with your wife when that has been possible from the prison, and she is aware of your circumstances.
42I do take into account as warranting some mitigation in your sentence that your time in custody has so far, and is likely to continue to be, more burdensome for you due to your worry about your family and their circumstances, and due to your distress at realising that you might not see your mother again. You have not specifically mentioned, but I assume, that you are also concerned about a similar possibility in relation to your wife.
43I turn next to your personal state of health. You have been diagnosed with diabetes, high blood pressure and hepatitis C. These conditions can be managed and treated while you are in prison, and you have been prescribed medication, at least for the hypertension.
44
There has now also been some evidence produced that you are suffering from symptoms of a psychological condition. I accept that this opinion was sought after you displayed considerable distress during conferences with your lawyers, and also in court on the first occasion that this matter was heard.
I have read a report obtained from Dr Aaron Cunningham, clinical psychologist, who conducted a psychological assessment of you at Metropolitan Remand Centre in November. An interpreter assisted throughout that assessment.
45Dr Cunningham took into account the symptoms described by you. His assessment was that you presented with symptoms of depressed mood, fatigue and suicidal thoughts, and he diagnosed that you were then presently suffering from an adjustment disorder with depressed mood. It was his opinion that this condition had been precipitated - meaning brought on or caused - by your arrest and imprisonment.
46Mr Martin Jackson, clinical neuropsychologist, assessed you earlier this month, primarily for cognitive assessment, but he also found you showing symptoms of depression, including crying sobbingly on several occasions when talking about your mother and your wife, and his clinical impression was that you are severely depressed.
47I accept from both of these assessments that you are suffering currently from significant symptoms of depression as a result of finding yourself in the situation that you do - that is, detained in prison for a serious offence, for which you know that you face considerable further time in prison, feeling isolated yourself by language and environment, and very worried thinking about your family's circumstances back in China and whether you might not see at least your mother again.
48I take into account that this has so far, and for the duration of your sentence is likely to continue, to make imprisonment harder for you to bear than for someone not suffering from that condition. You are entitled to some mitigation of your sentence to take this into account, and I have moderated it a little for this reason. I am unaware of you yet being prescribed any medication for your symptoms of depression, but it may well be that this should be drawn to the attention of medical authorities for some such medication to be prescribed for you.
49Dr Cunningham also carried out an assessment of your intellectual functioning. His conclusion was that the test results placed you in the intellectually impaired range of intelligence, in that your thinking and reasoning skills were assessed in the bottom five per cent of your age peers. He noted that this was consistent with the history you gave of living a circumscribed lifestyle, mainly living with your parents until your marriage, and given your limited educational background. He was not prepared to say that you meet the specific definition of intellectual disability.
50As a result of his report, a specialised neuropsychological assessment was obtained from Mr Martin Jackson. It details various aspects of your cognitive functioning, which I shall not repeat here, but I have read and taken them into account.
51Mr Jackson recognised that there were limitations on the tests he could administer due to language and cultural differences. He found some of your skills within borderline range, some low-average and some extremely low. He concluded that your overall intellectual abilities were in the borderline range, with better performances in perceptual intellectual abilities and planning, organisation, logical thinking and visual memory, and extremely low in other areas. Processing speed, and new learning and memory were particularly poor.
52Mr Jackson considered that although having several areas of extremely low abilities such as mental arithmetic, you would not qualify as having a mild intellectual disability, so he and Dr Cunningham agreed about that. He found the borderline range assessment consistent with your education, occupation and psychosocial background, and considered that it was likely that you have always been a borderline functioning person.
53In relation to his diagnosis of a current significant mood disorder of depression, he differed from Dr Cunningham's view about its likely cause. Rather than concluding that it resulted from your arrest and your remand in custody here, with the restraints and isolation of imprisonment and concern for your family back in China, Mr Jackson considered it likely that your mood has been becoming lower - that is, more depressed - over the years as your circumstances deteriorated.
54
He says he has no doubt that you were significantly depressed at the time of committing the offence, although he also is of the view that your depression has deteriorated since your arrest and whilst you have been in custody.
Mr Jackson was of the opinion that your cognitive - that is, thinking - difficulties are secondary to your depression, and therefore, that if your depression improved it is likely that your cognition would improve also.
55Mr Jackson gave the opinion that at the time of the offending your mood disorder and also your cognitive functioning would have affected your ability to fully understand and process the wrongfulness of your actions in participating in the drug importation. He says that your condition affects your ability to think clearly and make calm, reasoned decisions. He also considered that your borderline cognitive skills made you more inclined to follow instructions rather than exercise your own judgment as to whether those actions were appropriate.
56Therefore, even before your depression and cognitive functioning were exacerbated by the subsequent stress of your arrest, incarceration and concern for the future of your family, he is of the view that your conditions affected your behaviour in participating in the offending. If I accepted that opinion it would be a relevant mitigatory factor, as it would indicate that your moral blameworthiness should be regarded as lower, and it would also mean that general deterrence should be moderated in your case. That is in line with principles set out in Verdins' case.
57Both Dr Cunningham and Mr Jackson noted that cultural and language differences meant that they could not use some of their usual tests or assessment tools. While I accept that both Dr Cunningham and Mr Jackson made their assessments and gave their opinions based on the tools they were able to use, and on the facts they knew, and that both assess you as showing impaired cognitive functioning, albeit short of intellectual disability, I regard their opinions as requiring some significant qualification on that topic.
58In particular, neither of them seems to have been informed either that you had previously worked away from home in other parts of Asia, nor of your travels in the months before your arrest. Therefore, they did not consider the impact of that information on their conclusions. I accept, as they did, that your background is of very limited education and relatively confined social environment living with your parents, then your mother and wife. Dr Cunningham and Mr Jackson understood your employment history to have been in relatively low-level establishments, and I accept that too, although if you worked in Cambodia or Indonesia it was not quite as limited as the other information might imply.
59More importantly, Dr Cunningham and Mr Jackson did not know that your passport shows that you travelled to Schiphol Airport, Amsterdam in September 2013, Sydney in December 2013, New Zealand in February 2014 and Melbourne twice, very briefly, in March 2014, preceding your arrival with the drugs on 18 April 2014. Therefore, they had no opportunity to consider whether the fact and frequency of that travel history would affect their impression of you having limited coping capacities for change, particularly concrete and inflexible thinking, needing a lot of explanation and prompting to learn even basic concepts, and being susceptible to following instructions rather than making your own decisions.
60The frequency of your travels in the preceding months may also have affected Mr Jackson's views about the development of your depression and the extent of your depressed mood influencing your actions. They also did not have opportunity to consider whether your cognitive functioning may not have been as limited as they found on testing, had they been told that one or more people who knew you enough to fly you from Hong Kong to Sydney, and possibly once or twice to Melbourne, did so for your advice on establishing a business where you would possibly be employed.
61The prosecution does not suggest that any of your previous travels involved illegal activity, and I do not draw any inference that there was anything untoward about any of those other trips. However, I find it difficult to accept that you would have been travelling as often as you did over that period if you were in the degree of financial hardship that you claim drove you to agree to carry the illegal importation on 18 April last year, or if your mood or cognitive functioning were as impaired as Mr Jackson concludes it was likely to have been over that period and leading up to your decision to commit this offence.
62I do accept that your primary motivation for becoming involved in this offence is likely to have been financial - including concern to support your family since you had become unemployed, and the immediacy of your wife requiring significant medical treatment. I accept that it is most unlikely that you organised this importation or took any greater role than carrying the drugs into Australia to deliver them to someone else shortly after arrival.
63However, I am not satisfied that your general cognitive limitations were such that your moral blameworthiness for your role was significantly lower than for someone else with greater than borderline intellectual capacities, but also in financial hardship. I am also not satisfied that any symptoms of depression that you were suffering significantly undermined your ability to make a decision whether or not to participate in what you knew was an illegal importation of drugs.
64Therefore, although I do not sentence you as an organiser or instigator of the importation, and I certainly do not sentence you as if you have committed that offence on any other occasion, I am not satisfied that your case calls for any significant moderation in the role of general deterrence as a very important sentencing factor. That is, I consider, and it was in effect conceded on your behalf by your counsel, that general deterrence is still very important here. That means that other people must be sent the message through the sternness of the sentence imposed, that if they are tempted to commit offences of this type, they can expect stern punishment.
65I have also taken into account part (j) under s.16A(2) as to the specific deterrence effect of the sentence, and under subparagraph (n), your prospects of rehabilitation. In my view, neither play a significant role in your sentence.
66I note that you have no prior criminal record in Australia, and although there is no actual evidence of your background in Hong Kong and China, I infer that you are unlikely to have any criminal record there or you would not have been chosen as a courier of drugs into Australia. After all, it is an unfortunate feature of these types of cases that a person chosen as a courier of drugs is usually someone without a criminal history in their own country, or indeed Australia, so that they are unlikely to come to the immediate attention of immigration or Customs authorities.
67I am satisfied that you have no drug addiction yourself that would lead you to become involved in offences of this nature ever again, and that there is no need for rehabilitative programs to assist you in refraining from drug abuse.
68I am satisfied that the effect of being held in custody since your arrival in Australia in April last year will have been a very salutary lesson to you, and salutary enough to make it most unlikely that you would ever be tempted to engage in offending of this nature again. Indeed, with a mother, wife and young child in China, I have little doubt that on your release from prison and eventual return to China you will return to live with your family, and it is highly unlikely that you will commit further offences.
69As I have said, it was conceded by your lawyer, as well as submitted on behalf of the prosecution, that the primary sentencing factor in this case must be general deterrence. I must impose a sentence severe enough to send a message to others who might consider engaging in this offence that if caught they can expect very stern punishment. Those who organise importations of this type must also receive the message that sentences are not likely to be very significantly reduced because of hardship for the person or family of the person chosen as the courier.
70As was also conceded, in all of the circumstances no sentence other than immediate imprisonment would be appropriate to adequately meet sentencing requirements. I was referred to a chart showing sentences in some other cases of drug importations where the amount was in a low range of commercial quantity, and another chart of just below commercial quantities. In several cases on each chart there were also very difficult or sad consequences to family members of the offender, and there had been pleas of guilty. Those charts do appear to me to be an appropriate combination of ranges to consider as reflecting sentencing practice for offences similar to yours, but in the end every case must be considered on its particular circumstances as there are always circumstances which vary between individual cases, both personal and as to motivation and the seriousness of involvement in the particular importation.
71Taking all of the matters I have outlined into account, I am satisfied that the nature and seriousness of the circumstances of this offence mean that no sentence short of imprisonment which requires you to serve a further period in custody would be appropriate.
72As I am satisfied that a sentence of more than three years is required, I should impose either a non-parole period or a date for recognizance release. As you are a foreign national, it is my understanding that on your release in either of those manners you are likely to be deported back to your own county, China, however I cannot speculate about that or the timing or its details.
73Given the greater than usual burden on you having to serve your sentence, suffering symptoms of depression with concern about your family back in China and whether you will see your mother and wife again, and with cultural and language difficulties and no friends or family to visit you, I have moderated your sentence, particularly the minimum term. That means I have made it lower than what it might otherwise have been.
74Would you stand up now please, Mr Lee?
75Mr Lee, on the charge of importing a commercial quantity of a border-controlled drug you are sentenced to a term of five and a half years' imprisonment.
76I set a period of three years, being the total I expect you to serve before you can be released from custody. It is my intention that after serving three years in total, you be released on a recognizance release order.
77Your sentence commences today, but the time that you have been in custody will count towards it, so I declare 285 days of pre-sentence detention as reckoned served. I direct that that be recorded in court records. That means that it will be deducted from the full sentence, that is, the head sentence, and from the minimum period that you are to serve before you can be released. On my calculations it leaves a little over two years and three months still to be served before you can be released, but the actual release date will be calculated administratively.
78This was not raised specifically, but is it sought that I make a statement that under Victorian law would be under s.6AAA as to what the sentence would have been without the plea of guilty?
79MR DHILLON: Yes, Your Honour.
80HER HONOUR: All right. These statements are always artificial, but nevertheless I will state that if you had not pleaded guilty, but been found guilty of this charge by a jury, and if all the other circumstances had been the same - although of course you would not have been showing the same contrition - I would have imposed a sentence of seven years' imprisonment, with a non-parole period of five years.
81I also make the forfeiture order that was sought in respect of the total of A$1,620 cash that was in your possession at the time of arrest. That was not opposed through your counsel and I am satisfied based on the provisions of I think it is s.48 of the Proceeds of Crime Act that it is appropriate to make that order.
82You can take a seat, Mr Lee, while the formalities are gone through. Are there any matters I have failed to deal with?
83MS WOODWARD: No, not that I'm aware, Your Honour.
84MR DHILLON: No, Your Honour.
85HER HONOUR: All right. In terms of the recognizance release order, other than that because the head sentence is more than three years, either a non-parole period or a recognizance release order could be made.
86MR DHILLON: Yes.
87HER HONOUR: I didn't hear from either of you as to which was the most appropriate, and it seemed to me a recognizance release order was, because it's my understanding that that enables calculation of a fixed date for release rather than being subject to a decision having to be made by the Parole Board. But if I'm wrong about that ‑ ‑ ‑
88MR DHILLON: Your Honour, the situation - yes, Your Honour.
89HER HONOUR: I am wrong about that, am I?
90MR DHILLON: The situation is different under the federal scheme in that the - and where a non-parole period is set for a federal prisoner the person is released on the expiration of that period, such that there is no operation of a separate authority which (indistinct) for the release of a federal prisoner. So in effect, Your Honour ‑ ‑ ‑
91HER HONOUR: Thank you for clarifying that, but my understanding is that either way, Mr Lee -acknowledging that I'm not meant to speculate about it, but that on release from imprisonment on this sentence he is likely to be deported.
92MR DHILLON: Yes.
93HER HONOUR: Promptly.
94MR DHILLON: Yes.
95HER HONOUR: And that he won't be required to stay in Australia for any type of supervision or to fulfil the recognizance release.
96MR DHILLON: That's correct, Your Honour.
97
HER HONOUR: So is there any particular - as I say, I didn't hear from you - only from you, Mr Dhillon, that either one or the other should be imposed.
Ms Woodward, is there any disadvantage compared with a non-parole period to your client of the recognizance release?
98MS WOODWARD: Your Honour, it's my understanding that there is no disadvantage between either of those two dispositions.
99HER HONOUR: All right. In that case, if you have a form of recognizance release order ‑ ‑ ‑
100MR DHILLON: Yes, I do.
101HER HONOUR: ‑ ‑ ‑ for me I will do it that way. It seemed to me that was the most straightforward way ‑ ‑ ‑
102MR DHILLON: Yes.
103HER HONOUR: ‑ ‑ ‑ to do it, but I am not - I don't see sufficient Commonwealth cases frequently enough to hold all of that information in my memory banks.
104MR DHILLON: Yes, that's understandable.
105HER HONOUR: All right.
106MR DHILLON: Your Honour needs to stipulate a sum of the recognizance, a monetary sum for the purposes of the order.
107HER HONOUR: That's not actually deposited, is it?
108MR DHILLON: It's not, Your Honour.
109HER HONOUR: No. I'll specify a sum of $200. The punishment in this case is the term of imprisonment and I'm not trying to do more than facilitate the release after serving three years. I'm just changing the date on the forfeiture order of - I've now changed 28 November, it should have been January.
110Do we need only two or three copies of that forfeiture order?
111MR DHILLON: Only two, I understand, Your Honour. One for the court and one for the prosecution to hold, and a copy will be provided to my friend.
112HER HONOUR: All right.
113MR DHILLON: Unless I'm wrong, but that's my understanding.
114
HER HONOUR: We can have a photocopy made now, that's just so that
Ms Woodward can have it at this point.
115MR DHILLON: Your Honour, may I infer that the operational period, Your Honour is required to also state the period for which Mr Lee is to be of good behaviour. That can be five and a half years or ‑ ‑ ‑
116HER HONOUR: It's two and a half years.
117MR DHILLON: Yes. From the expiration - from the date of release.
118HER HONOUR: From the date of release.
119MR DHILLON: Yes. Your Honour, I've completed the order.
120HER HONOUR: Ms Woodward, have you checked it, that it seems to comply with what I've expressed as my intention.
121MS WOODWARD: Yes, it does, Your Honour.
122HER HONOUR: All right, thank you. Could I have that please? There's a word missing, it doesn't - "The court orders the release of the defendant" - is it paragraph 20(1)(b)?
123MR DHILLON: 20(1)(b).
124HER HONOUR: Yes, is it the release of the defendant under or pursuant to or - you've just got "The court orders the release of the defendant paragraph 20(1)(b).
125MR DHILLON: It should be "pursuant to", yes. Or "under".
126HER HONOUR: I'll just put "under", it's shorter.
127MR DHILLON: Yes, thank you, Your Honour.
128HER HONOUR: To write "under paragraph 20(1)(b) of the Crimes Act after serving three years of the term of imprisonment by recognizance of $200 to comply with the following conditions: that the defendant be of good behaviour for two years and six months."
129MR DHILLON: Yes.
130HER HONOUR: Yes, I'll explain that to Mr Lee and have it interpreted to him.
131Mr Lee, the order I've made, as you've heard, is that you have to serve a total of three years' imprisonment. After you've served that three years you will be released on you agreeing to be of good behaviour for the rest of the sentence; that is, for the next two and a half years. In reality, when you are released from prison you will probably be sent back to China. But you are asked to agree to be of good behaviour - that means not to commit any other offences - for the balance of the sentence that I have imposed.
132Do you understand that and do you agree to give that undertaking?
133OFFENDER: Yes.
134HER HONOUR: All right. You are required to sign that recognizance. I'll have Ms Woodward bring it to you to sign. Before I do, when I say you are to serve three years in prison, the nearly nine months you have already served - it's over nine months.
135MS WOODWARD: It's just over nine months, Your Honour, it's nearly ten.
136HER HONOUR: Yes. The time that you have already served will count, so I'm really - the practical thing is that you've got about a bit over two years and three months - sorry, you've got a bit under two years and three months from now to still serve before you'll be released from prison.
137I will have that handed to Ms Woodward and a pen and she can, with the assistance of the interpreter, for Mr Lee to read that recognizance and sign it. It's the recognizance on the second page that he has to sign, nothing to do with the surety at the bottom.
138MS WOODWARD: Thank you, Your Honour.
139(Recognizance release order signed and acknowledged.)
140HER HONOUR: I'll just add, it's as if the three years started on 18 April last year.
141MS WOODWARD: Your Honour, thank you for that opportunity. Mr Lee has signed the document and confirms that's his usual signature.
142
HER HONOUR: Thank you, my acting associate will also apparently sign it and then we'll have copies made so everybody has - you keep the original,
Mr Dhillon?
143MR DHILLON: Yes, Your Honour.
144
HER HONOUR: Yes. the last thing I just want to raise is - it's really to
Ms Woodward - do you want any custody note about - concerning your client's depression added?
145MS WOODWARD: If Your Honour wouldn’t mind considering making a note that Mr Lee appears to suffer from depression. With respect to the relevant reports, I would seek an opportunity to speak to Mr Lee further about the contents of those reports.
146HER HONOUR: Yes.
147MS WOODWARD: As to whether they should be provided. Personally, I think it would benefit - be of great benefit to Mr Lee if the authorities were aware, but I would need to I think in a different environment obtain his instructions.
148HER HONOUR: That's fine, I won't provide the reports unless it is with informed consent.
149MS WOODWARD: I'm grateful, Your Honour.
150
HER HONOUR: So I'm really unclear - both Dr Cunningham and
Mr Jackson note - or Mr Jackson concludes it is severe symptoms of depression that he saw on a clinical basis. As I - and I think he said that there's been medication for the high blood pressure ‑ ‑ ‑
151MS WOODWARD: Yes.
152HER HONOUR: ‑ ‑ ‑ but not for depression.
153MS WOODWARD: Yes.
154HER HONOUR: Your client has been coping, although I'm sure with some distress at the thoughts of what's happening and suffering these symptoms. I am prepared to put a custody note that assessment for symptoms of depression is recommended.
155MS WOODWARD: I'd be grateful.
156HER HONOUR: Assessment and possible treatment for symptoms of depression ‑ ‑ ‑
157MS WOODWARD: Thank you, Your Honour, I'd be very grateful.
158HER HONOUR: ‑ ‑ ‑ should be noted. I won't provide the reports as such, but it at least alerts the custodial authorities to the type of assessments they might need - matters they should consider. And particularly when it's obvious that an interpreter will be needed.
159MS WOODWARD: Yes.
160HER HONOUR: That can be drawn to their attention in advance.
161MS WOODWARD: He certainly - it is clear that he does attend for physical medical ailments, he seeks out assistance, but it's not clear that he's ever mentioned the other issues. Thank you, Your Honour.
162HER HONOUR: All right. I'm about to adjourn, I'll stay nearby to sign the order to facilitate Mr Lee's handling, but do you want access to talk to Mr Lee before he leaves the courtroom, or will you see him downstairs?
163MS WOODWARD: If I might be permitted to speak with Mr Lee in court, Your Honour. I'm not sure about this interpreter, I haven't spoken to her, but some interpreters, there's a practice that they're not willing to attend down in the cells.
164HER HONOUR: Downstairs.
165MS WOODWARD: So if I might be permitted to speak to him?
166HER HONOUR: All right. I think in the circumstances, as it's necessary that there be an interpreter to assist Ms Woodward to discuss the result with her client, I will ask that he be allowed to remain for a reasonable time in the courtroom.
167SECURITY OFFICER: Yes, Your Honour.
168HER HONOUR: I will leave without seeing him taken out of the courtroom. So that the interpreter and counsel can confer with him here.
169SECURITY OFFICER: Yes, Your Honour.
170HER HONOUR: Thank you.
171MR DHILLON: Thank you. And I again apologise for what transpired this morning to the court and to my learned friend.
172HER HONOUR: Thank you. It's also to Ms Woodward.
173MR DHILLON: Yes.
174HER HONOUR: And it's unfortunate that the whole system has to reboot. It was fortunate that I wasn't listed to hear anything else today.
175MR DHILLON: It was, Your Honour.
176HER HONOUR: Or I couldn't have been as flexible as I have been, because we've taken what would have been half of the afternoon session had I been sitting in another case as I had expected to be, but it's a bit fortunate that for some reason there are fewer civil cases to be heard this week. All right, I will adjourn the court till 10.30 tomorrow, leave the Bench, but I won't go far because I will sign this order as soon as I can.
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