Director of Public Prosecutions v Lee
[2012] VCC 2081
•12 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01762
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND LEE |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 December 2012 | |
CASE MAY BE CITED AS: | DPP v Lee | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2081 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Doyle | |
| For the Accused | Mr S. Lindner |
HER HONOUR:
1 Raymond Lee you have pleaded guilty to one charge of trafficking in a drug of dependence, Charge 1, and one charge of knowingly dealing in the proceeds of crime, Charge 2. The maximum penalty for each of those charges is 15 years imprisonment.
2 The prosecution sought a number of ancillary orders. The prosecution sought an order for the taking of a forensic sample from you and for the forfeiture of a certain amount of money. The making of those orders was consented to.
3 The prosecution also sought an order for the disposal of certain items being mobile phones. No objection was made to the making of that order but that application has been adjourned to a date to be fixed as the phones may be required as evidence in proceedings against your co-accused.
4
The circumstances of your offending were set out in the prosecution opening for plea, which is Exhibit A. In brief, in early 2011 Victoria Police conducted an investigation into heroin trafficking by a female and her partner. According to police the couple used and sold heroin which they obtained from at least two suppliers called Mr Lu and Mr Zhou. The investigation and surveillance revealed your role which was to deliver heroin sold by Mr Lu and
Mr Zhou to various customers of Mr Lu.
5 You became involved because you knew Mr Zhou. In about May 2011 he offered you a job as a driver to deliver heroin for cash payment. You thought about this for about a month then contacted Mr Zhou and agreed. He told you that you would be payed a thousand dollars per week and arranged for you to meet Mr Lu. You met Mr Lu who explained that he would take calls from customers, ring you and tell you where to go and whom to meet. He would give you a deal bag which should last at least a week but you could collect more if required. You would hold the money until you next saw Mr Lu. Further arrangements were made and you then began delivering heroin to people including the couple to whom I referred earlier.
6 Charge 1 relates to the deliveries you did in the four months prior to your arrest. It is estimated that you delivered about 20 grams per week of a substance containing heroin. It is estimated that you delivered about 320 grams of a substance containing heroin with a purity of between 12 and 16 per cent.
7 Charge 2 relates to $5655 found in cash when police searched your room on 24 October 2011. You were arrested and interviewed on 24 October 2011. You denied offending.
8 Prior to the committal hearing on 24 September 2012 your solicitors contacted authorities on your behalf offering your plea of guilty and cooperation. Your committal proceeded by way of a hand up brief and you entered pleas of guilty. The committals of your four co-accused were adjourned to 11 February 2013. It is anticipated you will be called and cross-examined at the committal. At the plea hearing you gave an undertaking to give evidence at any committal proceeding, trial or other hearing of your co-accused and to cooperate with the investigation and prosecution of these matters. You adopted as true and correct a statement made by you on 27 November 2012 which is an indication of the information which you are prepared to supply if required to do so. A copy of that statement was tendered as Exhibit B.
9 The prosecution considers your evidence to be of significant assistance in the prosecution of your co-accused, especially Mr Lu and Mr Zhou, and submits that you should receive a substantial discount on sentence to reflect your future cooperation.
10 I have taken into account your personal circumstances in sentencing you. Your personal circumstances are set out in the report of Mr Ian Joblin, forensic psychologist, which was tendered as Exhibit 1.
11 Your parents separated when you were about four. Your mother took you after that to live in Taiwan, where you remained living until at the age of 11 you returned to Australia. Your father had remained in Australia. Your father works as a chef. You apparently had an unhappy relationship with your mother and your grandparents in Taiwan. You were mainly raised there by your grandparents.
12 When you came to Australia you first lived in Sydney with your paternal grandparents and then came to Melbourne to live with your father. Since coming to Australia from Taiwan you have had little communication with your mother and have had no contact with her for about ten years. You have a younger sister who lives in Sydney. You have little contact with her but have a good relationship with her.
13 You completed Year 11 at school. You had no problems at school of any significance and are apparently fluent in Mandarin and Cantonese as well as English. After leaving school you worked in the take away food business in various areas. You have also had other jobs working in a computer warehouse, as a kitchen hand and in restaurants with your father.
14 At the time Mr Joblin assessed you, in October 2012, you were living with your father and your father's partner. Mr Joblin says you have a very strong attitude to employment and are in current employment in the food industry.
15 Mr Joblin considers that a matter relevant to your offending is your marriage in 2009 when you were about 21 or 22, to a younger woman of Chinese background. You have told Mr Joblin that she belittled you because you were not able to provide the lifestyle that she wanted. Mr Joblin considers this to be a significant issue in your offending.
16 You are currently in a relationship with a young woman that you met in February 2012 who is an overseas student studying in Melbourne.
17 You have a prior criminal history which is limited but significant. You appeared at the Melbourne Magistrates' Court in July 2010 on charges of trafficking ecstasy and dealing in property being the proceeds of crime. Without conviction you were placed on a community based order for 12 months. You told Mr Joblin that you began using ecstasy in small amounts. You then were prevailed upon by friends to buy ecstasy in bulk and to then provide it to your friends.
18 Mr Joblin is of the opinion that you entered into the present offending in order to make money. He says that you were a hard working person but believed that you would be able to benefit from the financial rewards of this employment and that you would therefore be able to present a "reasonably positive financial situation to any prospective girlfriend." In Mr Joblin's opinion this formed much of the psychological basis for your offending. He says you saw it as an appealing proposition and as a solution to the problems which had resulted in the end of your marriage. You are not a drug user yourself.
19 Mr Joblin says that you now recognise the seriously inappropriate nature of your offending and regret having participated in it. He says that you were entirely contrite and know the wrongness of your behaviour. Mr Joblin says that you have stabilised and made positive efforts to continue your employment. He says you are of good intellect and have no medical history that would contribute to psychological problems. Mr Joblin considers that if you continue with your current attitudes there is a basis for a reasonably optimistic prognosis in terms of your future.
20 In court to support you were your father and your father's partner, your uncle and your former manager, Mr Tony Cheng. Mr Cheng also provided a written reference.
21 A bundle of character references was tendered as Exhibit 4. Your present girlfriend provided a reference, she described you as "hard working, loving, and a caring person who tries to succeed in everything he puts his mind to." Your current employer provides a positive reference and describes you as a hard worker who is skilled and reliable. Mr Cheng used to be your manager and has known you for eight years. He says you were an outstanding employee. He considers you to be his best friend and has found you a kind and trustworthy person. He was shocked to discover your involvement in this offending. Another friend of yours provided a reference. He also describes you in very positive terms. He has known you since you met at school. He says that you have made many improvements since this offending and that you have focused on your career and your relationship with your girlfriend.
22 In sentencing submissions Mr Lindner argued that the appropriate sentence would be a suspended sentence. Mr Lindner relied on your substantial remorse and said you were doing your best to set things straight. He said this was demonstrated by your cooperation and early plea of guilty. He also relied on your cooperation in the committal proceeding which proceeded by way of hand up brief.
23 Mr Lindner submitted that your role should be taken into account and that you were a driver working for a wage and that you were not an organiser or seller of the heroin. He said you had not played any part in drumming up business and he described your role as "very, very limited." He said your role was necessary but could have been done by somebody else. He also said it should be taken into account that you were not getting a share of the profits.
24 Mr Lindner said that your plea of guilty had resulted in a significant saving in relation to the trial as there were a large number of witnesses on the indictment.
25 Mr Lindner further relied on your statement which he described as confessional as to your role. He said this statement also had material inculpating the others involved and specifying their roles. He relied on your undertaking to give future cooperation as a matter which should lead to a significant reduction in sentence.
26 Mr Lindner submitted that you were a young offender and that your rehabilitation ought to have primary significance in sentencing and that it should be taken into account that this would be your first time in custody.
27 In relation to your prior court appearance, Mr Lindner described this offending as sharing with friends.
28 Mr Lindner also referred to your current employment and relationship with your girlfriend. He said you had matured incredibly and had excellent prospects for rehabilitation. He also referred to your family support and support from your girlfriend and friends. He suggested that imprisonment would be likely to be difficult and that you may be required to be in a protection unit for a period of time. He said you would be vulnerable to attack and retribution in gaol.
29 Mr Lindner submitted that there should be full concurrency in any sentence imposed on the two charges because the factual basis of your offending was very much intertwined.
30 Mr Lindner conceded that general deterrence would be very much of significance in this type of case but said that this would be covered by a sentence of imprisonment suspended for a period of time. Mr Lindner argued that specific deterrence ought to have a lesser role because of your change of attitude, cooperation and cessation of association with others involved with the illegal drugs. Mr Lindner said that your actions had demonstrated that you had learned a lesson.
31 The prosecutor in sentencing submissions said that her instructions were that the appropriate sentence would be a sentence of imprisonment of two to three years with a non parole period of 12 - 18 months. Ms Doyle referred to your role. She submitted that you had made a calculated decision to take this job to earn money. She submitted that the courier role was a significant role and that the estimated quantity of drugs that you had been involved with was slightly more than half the commercial quantity of such drugs.
32 The prosecutor submitted that general deterrence would be a significant issue and that specific deterrence ought to have a role to play in your sentence because of your prior court appearance. The prosecutor agreed that concurrency would be appropriate. The prosecutor also agreed that your relative youth and immaturity ought to be taken into account and that you should receive a very significant discount for your cooperation in the past and the future. The prosecutor also accepted that your cooperation may lead to increased hardship in gaol.
33 Mr Lee your offending was very serious. The maximum penalties available reflect that. The distribution of illegal drugs for profit is an evil trade. Those who engage in this trade make money out of the vulnerabilities of others. Illegal drugs cause harm to individuals, families and the community as a whole. You got involved deliberately after time to think. This was not a spur of the moment activity. You did it for the money. I am satisfied that you wanted money both for your lifestyle and to be able to present a positive future to a potential girlfriend. I accept that that was the context of your decision. I do not consider that that reduces your moral culpability. You clearly knew what you were doing was wrong and you went into it quite deliberately.
34 Your role was that of a driver for wages. This is a significant and necessary role in the distribution of drugs. You were trusted by the organisers, especially because you were not a drug user yourself. I do not accept that your role could be described as very, very limited. You were trusted to distribute drugs and hold on to money until it was collected. You were prepared to drive around in the car provided because it was less obvious than your own car. You carried on with this behaviour for a period of months. You delivered and accepted payment for a significant amount of drugs. It is particularly concerning that you did this despite a prior finding of guilt and the imposition of a community based order for similar offending. I accept that you were not an organiser yourself and did not get any percentage of the profits.
35 I have taken a number of matters into account in mitigation. You are relatively young. Your rehabilitation ought to have significant weight in sentencing you although not to the point of overwhelming other sentencing considerations entirely. I express some caution in relation to your prospects of rehabilitation because of the prior matter.
36 On your history, as I have read it, you were a hard working person prior to this offending. The references from your past manager and friends confirm this. You had their support and the support of your family, particularly your father. I accept that your maturity is increasing as you get older but do not accept that your maturity level has matured incredibly since this offending. It is my view that you showed significant signs of maturity before this offending and went into it on a calculated basis despite your previous criminal history and your previous history of hard work.
37 I do accept that you have the ability to engage in rehabilitation. You have employment, good relationships and are hard working and capable. You have also provided very significant cooperation in the past and indicated an undertaking to provide significant cooperation in the future. This suggests that you wish to disassociate yourself from the world of illegal drugs. That is a very positive thing in terms of your rehabilitation. In my view your prospects of rehabilitation are good and should be encouraged.
38 Your plea of guilty is an indication of your remorse and also has considerable utilitarian value. You are entitled to a significant discount for that plea of guilty. I make it clear that the discount for the plea of guilty that I will announce at the end of this sentence is arrived at on the basis that your undertaking of future cooperation would remain the same and that you would have received a lesser sentence because of that and other mitigatory factors not reliant on your plea of guilty.
39 Your past cooperation and future cooperation are also strongly mitigating factors. The future assistance that you have undertaken to provide is significant and ought to result in a substantial discount to reflect that assistance. Your undertaking to give future assistance also is likely to lead to potential hardship in custody.
40 In my view the seriousness of your offending warrants a sentence of imprisonment for the purposes of denunciation, punishment and general deterrence. It is to be hoped that other people will factor in the risk of imprisonment when deciding whether or not to get involved in the trade in illegal drugs. Hopefully at least some people will decide against getting involved because they understand that they are likely to go to prison if they are caught.
41 In my view specific deterrence ought to have some weight in your sentence given the prior matter.
42 Taking into account all these matters, including the matters in mitigation, I consider that a wholly suspended sentence would not properly reflect these sentence considerations. I consider it desirable that your rehabilitation be monitored and supported and that therefore a non parole period is appropriate rather than a partially suspended sentence. I consider that total concurrency is appropriate given the intertwined nature of your offending.
43 I have taken the matters in mitigation into account in the sentence I am imposing. I have set a non parole period shorter than I would have otherwise. This is particularly because of your undertaking of future cooperation and potential hardship in custody because of that. I have imposed a head sentence and a non parole period less severe than I would have otherwise because of your undertaking to assist the authorities in the future.
44 Raymond Lee, on Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to 24 months imprisonment.
45 On Charge 2, knowingly dealing in the proceeds of crime, you are convicted and sentenced to nine months imprisonment.
46 The total effective sentence is 24 months imprisonment. I fix nine months as the period you must serve before you are eligible for release on parole. But for your plea of guilty I would have sentenced you to a term of imprisonment of three years with a non parole period of 20 months.
47 I have made the order for the taking of a forensic sample from you. I consider that to be justified in the circumstances because of the seriousness of your offending and because of your consent. Mr Lee I am required to tell you that you must cooperate with the authorities when they come to take a sample. I anticipate they will do that by way of a saliva sample. You are required to cooperate, otherwise the authorities can use reasonable force and can take a blood sample. I am sure that you will cooperate with them when they come to take the sample.
48 I have also made the order for forfeiture of the money that was found at your premises.
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