Director of Public Prosecutions v Lee
[2013] VCC 1123
•8 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01312
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIU LEE |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May – 28 May 2013 (Trial); 25 June 2013 (Plea) | |
DATE OF SENTENCE: | 8 July 2013 | |
CASE MAY BE CITED AS: | DPP v. Lee | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1123 | |
REASONS FOR SENTENCE
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Subject: Trafficking in a drug of dependence in a commercial quantity – Possession of a drug of dependence – Not guilty plea.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 3 years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Shaw | Office of Public Prosecutions |
| For the Accused | Mr M. Cahill (at trial and plea hearing) Mr C. Chiodo (at sentence) | Chiodo & Madafferi Solicitors |
HER HONOUR:
Charge
1 Siu Lee a jury has found you guilty of trafficking in a drug of dependence in a commercial quantity and possession of a drug of dependence. The maximum sentence for trafficking in a drug of dependence in a commercial quantity is 25 years' imprisonment, 3000 penalty points or both. The maximum sentence for possession of a drug of dependence is one year or 30 penalty units or both.
Circumstances of offending
2 The circumstances surrounding this offence are that in early 2012 the police were investigating Mr Yip and James Lay in relation to fraud and drug trafficking offences. The final phase of the investigation was the arrest phase. After conducting covert physical surveillance the police decided to arrest Mr Yip on 8 April 2012 in Raglan Street, South Melbourne. When they arrived to arrest him you were with him. Acting Detective Sergeant Stephen Russell approached you and asked you for identification. You produced your license and he asked you to remove all items from the pockets of your jeans.
3 The items you took out included $1,655 in $50 notes and a small tin of breath mints. When you opened the tin at Sergeant Russell's request he observed it to contain a plastic bag containing six tablets. Subsequently the tablets were analysed at the Victorian Police Forensic Science Centre and two of the tablets were found to be nitrobendiazepam, sleeping tablets, while the other four contained MDA. It is accepted that the sleeping tablets were for your own use and not for trafficking purposes.
4 Your Honda motor vehicle was parked nearby and Sergeant Russell then asked you if there was anything in the car that should not be there. You looked in the boot area and then went to the front passenger area and produced a Johnny Walker 750 millimetre black label tin. The Johnny Walker container was found to contain four zip top plastic bags with 2,055 pills containing 5 per cent purity of MDA, weighing 651.3 grams.
5 The prosecution evidence was that the 2055 pills if sold wholesale in one transaction would realise a price of 35,000 at $17 per pill.
6 In addition in the car were found two packets of Winfield Blue cigarettes, one containing two pills with MDA of 6 per cent purity and weighing 0.8 grams, the other containing a quantity of click seal plastic bags. Police also conducted a search of your house where they found $12,000 in cash made up of $50 and $100 notes. Your wife gave evidence at the trial that this was her money and that you had repaid her after spending a portion of your joint savings on expenses for the bar you part-owned.
7 I was informed by your counsel that on 25 May 2013 Mr Yip received a sentence of six months' imprisonment at Melbourne Magistrates Court for obtaining property by deception and financial deception and that there were also other charges outstanding. That Mr James Lay was convicted on 11 February 2013 for conspiracy to defraud. He received a sentence of four years with two years on parole.
Personal circumstances
8 Your counsel outlined your personal circumstances to the court. Further details were contained in a report from Jeffrey Cummins dated 24 June 2013.
9 You were born in Hong Kong on 5 August 1976. You are 36 years of age. You came to Perth from Hong Kong in 1997 on a student visa when you were aged 21. After undertaking an English course in Perth you moved to Melbourne.
10 You completed your secondary schooling in Hong Kong and after relocating to Melbourne you completed a two year IT diploma. You then did two years of an IT business degree at the University of Queensland at the Melbourne campus. You transferred that degree course to Ballarat University and in 2004 you obtained a Bachelor of Business majoring in accounting and computing.
11 In 2005-2006 you were involved in importing clothes and video controls from China. You were also involved in a business partnership importing marble sculptures from China. You operated a bar called Carpe Diem in Crosbie Lane, Melbourne in 2007. Subsequent to opening the bar you were in partnership with Robert McKay, exporting wine from Sydney and Melbourne to China. We also heard during the trial that you were involved in a land deal at Point Cook.
12 At the time of your offending you were spending at least five nights a week at your bar and it was there that you met with and entertained James Lay and Mr Yip.
13 With respect to your family circumstances, your father is deceased and your mother lives in Hong Kong. She is a retired administrative assistance and she has never been in trouble with the law. You have a 34 year old single sister who also has been in no trouble with the law. You have felt too embarrassed and ashamed to tell your mother or your extended family anything about your legal situation.
14 At the time of your offending you were married to Megan Kwan. You married her in 2006 but you have recently separated. Ms Kwan works as an accountant with Oriental Merchants and has never been in trouble with the law. Your wife gave evidence at the trial about you taking the money out of the joint account to support your bar which was going backwards financially. She described you as being a very poor money manager. While she is supportive of you there is apparently no prospect of a reconciliation.
15 While you have no prior convictions there are two subsequent court appearances. In August 2012 at Melbourne Magistrates Court you pleaded guilty to one charge of obtaining property by deception. This related to a situation where you had purchased some goods for Mr Yip and Mr Lay at a discounted rate and it was subsequently determined that the items had been obtained with the use of a fraudulent credit card. You were fined $3000 without conviction.
16 More recently, in April 2013, you appeared at the Melbourne Magistrates Court where you pleaded guilty of failing to furnish personal taxation results. You were convicted and fined an aggregate of $4000 plus $136.80 costs.
17 You are presently in Melbourne Assessment Prison and you are working in the kitchen. You are visited weekly on remand by Ms Kwan and Mr Lay, no relation to James Lay, who is your business partner in a Japanese restaurant in Russell Street, Melbourne and also in the bar.
Report by Mr Jeffrey Cummins
18 Mr Cummins reported that at your interview on the 13 June 2013 you maintained your innocence and told him that you were shocked with the jury verdict. You claimed that you were set up and you were angry and frustrated with yourself for associating with Alex Yip and James Lay. You stated that you regarded yourself as an ambitious business person and that your enthusiasm for business success might have blinded you to the point where you did not make adequate or proper character assessments of friends and business associates.
19 Based upon the history you gave him Mr Cummins was of the opinion that at the time of your arrest in 2012 you were suffering from symptoms of an adjustment disorder with mixed disturbance of emotions and conduct.
20 When he saw you on the 13th of the 6th 2013 you reported some symptoms of depression. In Mr Cummins' opinion these symptoms were reactive to your legal situation, including the jury verdict and the knowledge that you would receive a gaol sentence. Due to your concerns you were at risk of developing a reactive adjustment disorder.
Sentencing submissions
21 With respect to your sentence the prosecutor submitted that you should receive an immediate custodial sentence due to both general and specific deterrence and the need to protect the community from illegal drugs. The sentencing range given was four to five and a half years with a non-parole period of two and a half to four years.
22 While your counsel did not suggest that a custodial sentence was inappropriate he submitted that your sentence should be less than the range provided by the prosecution and that you should receive a moderate term of imprisonment with a longer than normal parole period.
23 In making this submission your counsel relied in particular on your previous good character, including your good family background, education, work and business history. In addition, on your lack of priors and lack of subsequent offending involving drugs. For these reasons, it was submitted that specific deterrence was of less weight than it would usually be and that you had good prospects of rehabilitation.
24 Prior to going into custody you had been involved with the designing and planning of a Japanese restaurant for Mr Lay. He runs the restaurant and was called to give character evidence. He said he had known you for 12 years and confirmed that he had retained you to help with the restaurant and that he would employ you upon your release.
Sentence
25 In sentencing you I have taken into account all the matters put by your counsel in mitigation of your offending. I accept that your offending was out of character and that your chances of rehabilitation are good. I also accept, in relation to the sleeping pills, that they were for your own use.
26 The portrait painted of you by your counsel was that of an ambitious young businessman who had been lead astray by dubious choices of business partners and friends. As a consequence you had lost your liberty, your marriage and your family home. I accept that this portrait is an accurate one and that the financial issues with your bar most probably played a role in your offending. This would also explain, at least to some extent, your subsequent offending.
27 However, while I have taken all these matters into account in determining your sentence I must also take into account the importance of general deterrence. In a number of cases the Court of Appeal has stated that in offences involving the trafficking of drugs, previous good character should be given less weight. The courts have recognised that illegal drugs cause great harm to the community and that those who are tempted to profit from them must be deterred.
28 Could you please stand up?
29 On the charge of trafficking in a drug of dependence in a commercial quantity you are sentenced to a term of imprisonment of three years and six months. I fix a non-parole period of two years.
30 On the charge of possession of a drug of dependence you are fined $400.
31 It is marked on the record that you have served – is it 54 days pre-sentence?
32 MR SHAW: Fifty-three days, not including today.
33 HER HONOUR: Fifty-three days pre-sentence detention. I make a disposal order fro the drugs and due to the seriousness of your offending and the fact that it is by consent I make an order for retention of your forensic sample.
34 Yes. Is there anything arising from the sentence?
35 MR CHIODO: No Your Honour.
36 MR SHAW: No Your Honour.
37 HER HONOUR: Yes, you can take the prisoner down.
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