Director of Public Prosecutions v Lee
[2022] VCC 1523
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01380
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOON LEE |
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JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 May 2022 |
DATE OF SENTENCE: | 2 June 2022 |
CASE MAY BE CITED AS: | DPP v Lee |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1523 |
REASONS FOR SENTENCE
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Subject:Traffick in methylamphetamine, traffick in a drug of dependence and possess a Category E handgun
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Thomas | OPP |
For the Accused | Mr L. Hartnett | Aughtersons |
HER HONOUR:
1Joon Lee, you have pleaded guilty to trafficking in methylamphetamine at Elsternwick and Wallan between 19 November 2019 and 9 December 2019 (Rolled-Up Charge - Charge 1); trafficking in a drug of dependence at Ferntree Gully on 5 February 2020 (Charge 2); the maximum penalty for this offence, that is trafficking in a drug of dependence, is 15 years.
2You have also pleaded guilty to possession of a Category E handgun
(Charge 3) and the maximum penalty for that offence is 14 years.3The circumstances of your offending are set out in the Summary of Prosecution Opening for Sentence Indication Hearing (Exhibit A) and are as follows:
4Between April and December 2019, a syndicate was engaged in manufacturing and trafficking drugs of dependence in Elsternwick at a property previously operating as a brothel, The Daily Planet, but then as a business known as the ‘Wellbeing Planet'. This latter business purported to be a residential and day care program for drug and alcohol rehabilitation. A second laboratory was operating from a garage at an address in Wallan. MDMA and methamphetamine were produced at both laboratories.
5Your co-accused, Luke McNally, Wayne Doble, David Hayes and Gungor Sert were part of the syndicate and each had different roles in the trafficking as set out in Exhibit A. See also paragraphs 13, 59 and 82 of Exhibit A for the relevant charges each of the co-accused faces before the Court.
CHARGE 1 – WALLAN PROPERTY
6The summary of movements and activities of you and two of your
co-accused in relation to the Wallan property was based on physical surveillance by police, the installation of a vehicle tracker, an optical surveillance device as well as phone data and call charge records as contained in Exhibit A.7Between August and December 2019, it was apparent that McNally was involved in the Wallan property and that you entered the lab on numerous occasions whilst he was there manufacturing drugs.
8On 18 November 2019 police attended at and searched the Wallan property and located a large-scale operational clandestine lab consisting of scientific equipment and glassware containing unknown liquids. Samples were obtained and analysed, revealing the presence of various substances including precursor chemicals and methamphetamine.
9The following day, you were observed entering the lab at the Wallan property carrying two bags of ice. You were there for about 6 hours and you discussed with McNally drug trafficking with references to ‘sulphuric' and the use of P2P. You were recorded washing scientific glassware and then placing items of glassware containing unknown liquids into a large container. At about half past 10 in the morning you both left that lab with the container and went to the Wellbeing Planet.
10A second search warrant was executed by police at the Wallan property on 9 December. Numerous items were seized as listed in paragraph 56-57 of Exhibit A. The seized items included: scientific equipment, scientific glassware, drugs of dependence and pre-cursor chemicals in a size not less than commercial quantity, solvents, unknown liquids. Later analysis revealed methylamphetamine in the amount of 2099.3 grams
Wellbeing Planet Business Property – the Elsternwick property
11Police installed a CCTV camera inside the laboratory at the Elsternwick property. You and your co-accused were all recorded by CCTV camera. You were recorded discussing and inspecting the construction of a fake wall between the properties, and inspecting the lab set up. On 9 December police executed a warrant at both Wallan and Elsternwick properties. Due to the large scale of the clandestine lab and the hazardous materials located at each property, police and chemists took three days to process the scenes; 687 exhibits were seized.
12A sophisticated and elaborate clandestine drug lab was located at the Elsternwick property and significant building works had been undertaken by members of the syndicate in order to establish a large-scale hidden drug manufacturing operation.
13The seized items include scientific equipment, scientific glassware, drugs of dependence and pre-cursor chemicals each in a size not less than the commercial quantity. It also included solvents, unknown liquids, CCTV security system and a sawn-off shotgun. Methylamphetamine located totalled 488.5 grams.
CHARGES 2 and 3
14On 5 February 2020, you were arrested and police searched your residence in Ferntree Gully. Located inside a 'Jelly Bean' tin in your pocket were two snap lock bags containing a white crystal substance. Later analysis determined the bags to contain 11.6 grams of methamphetamine.
15Located next to your bed was a loaded firearm, which you did not have a licence to possess.
16You participated in a record of interview. You initially maintained that you had the drugs and firearm as you were minding them for someone else – that you had attended the Wellbeing Planet in early 2019 for the purpose of drug rehabilitation. You had used your skills as a chippee to do some work at the Wellbeing Planet and at the owner's house, as payment for your rehabilitation. You had known Doble from the past but met the other co-accused at the Wellbeing Planet. You were aware of the lab at the Wallan property and had seen one of your co-accused there with a bag of at least 1 kilogram methylamphetamine.
17After you were shown some of the CCTV footage you admitted that you had taken some ice to the Wallan property to cool down some of the product and that you had bought other products from Bunnings. You admitted that at the Elsternwick property, you built the fake wall at the back and suspected the wall was to conceal a drug lab – you helped carry some of the equipment from the Wallan property to Elsternwick. You admitted that you had inspected the operating lab at Elsternwick.
Personal circumstances
18I received a report from Gina Cidoni, psychologist, dated 9 November 2021 (Exhibit 1), two letters from your employer (Exhibit 2) and results of drug screens that you have provided since your release from custody. I take all of that material into account.
19You are currently aged 41 years. You were born in Korea and came to Australia when you were aged about 14, living with your uncle. You were
re-united with your parents and sister some years later and lived in McKinnon then Keysborough with them. You currently reside at home with them in Ferntree Gully. You completed VCE and commenced an engineering course at TAFE – you then deferred after the first year and commenced working as a car salesman for about two years. Over the next decade you have worked on and off in the family business. You have recently completed the first year of a plumbing apprenticeship and are working full time in that field.20As indicated, you had a stable upbringing. It was when you were aged about 20 that you were first introduced to drugs and alcohol – about four or five years ago you began using ICE when you were introduced to it at work. As noted by Ms Cidoni:
He has a stable family, and he led a conforming life until substance abuse took hold. He was addicted to methamphetamine from 2017-2018 and by 2020, he was out of control. His parents funded treatment at the Wellbeing Planet in this time, where instead of rehabilitating he was exposed to prolific drug use and related activity by the so-called treaters. His problem escalated as a result.
21I was informed that you had previously bought a car from one of the
co-accused and that was how you knew him, but that the others were connected to you through your attendance at Wellbeing Planet. Ms Cidoni regarded you as particularly vulnerable given your dependence at that time on ICE and the availability of the substance through this rogue operator. Ms Cidoni opined that you were suffering from a substance abuse disorder that impacted on your decision making and compromised your self-control, self-inhibition and moral reasoning.22Such does not provide an excuse for your offending but helps explain your involvement.
23You were remanded on the day you were arrested. You were granted bail on 21 April 2020 and have therefore served 76 days in custody. This was at the beginning of the pandemic, a time when the strictest conditions and limitations were placed on prisoners. That was your first period in custody – you had up until that time had no involvement with the criminal justice system.
24I take into account your plea of guilty – it is indicative of remorse and facilitates the course of justice. Your plea is particularly valuable given the Court delays that have arisen as a consequence of Covid and the impact that it has had on the system in this State. You have saved the community the cost of the trial that would have been borne by them.
25Your time in custody was a sobering experience for you. When released you were on strict bail conditions that included the provision of clean drug screens. As indicated, I was provided with a bundle of clean screens and though not continuous over the whole bail period, most recently over the last few months they have been regularly provided. The time gap in providing the screens was explained by your counsel as no longer being necessary as part of your bail conditions.
26Your bail conditions were varied on 24 June 2021. That variation which made your conditions less onerous, was in recognition of the progress you had made in addressing your drug issues and on the path to rehabilitation. You have been employed since your release on bail in April 2020. I received two letters from your employer who described you as a great employee and an asset to his company. He also confirmed that you have ongoing employment with him.
Objective gravity of offending
27As to your role in Charge 1 trafficking: It was for about three weeks. The prosecution accepted you did not know the scale of the operation being conducted at either Wallan or Elsternwick property. The evidence relied upon for your involvement is set out in paragraph 89 of Exhibit A and includes:
· assisting in building a wall to conceal the drug lab at Elsternwick and accessing that property, having being given a key to it;
· facilitating the manufacturing process at both labs by obtaining and transporting material and delivering bags of ice to the Wallan lab;
· driving your co-accused to the Wallan lab late at night and early in the morning; cleaning glassware used in the manufacture at Wallan, moving boxes, chemical and glassware from Wallan to the Wellbeing Planet.
28Your counsel highlighted what he described as your subservient and inferior role in the syndicate with no personal profit or monetary gain.
29I accept your role was as set out by the prosecution – although you were not one of the main players in this syndicate, you contributed by assisting in the manner set out above over the period of about three weeks.
30The circumstances relating to Charges 2 and 3 reflect your capacity at that time to traffick drugs and to take steps to protect that business with the possession of a firearm. I do not accept that the offending relating to all the charges was on the very low minor scale as suggested by your counsel.
Rehabilitation prospects
31Your counsel submitted that you had good rehabilitation prospects given the following:
i.Your plea of guilty;
ii.Your lack of prior convictions;
iii.Your family support;
iv.Employment;
v.The experience that you have had in custody;
vi.The steps taken by you to address your drug problem and abstinence of drug use since your arrest.
32As noted by Ms Cidoni
Mr Lee remains at risk of relapsing, owing to the drug's powerful addictive component. However, if he maintains treatment, support and a positive lifestyle, this risk will reduce over time. Given the negative circumstances surrounding his attempt at rehabilitation, his progress to date and prognosis is positive.
33I accept your rehabilitation prospects are good, of course depending on you continuing with drug treatment. This factor was the main consideration in me, during the sentence indication hearing, informing the parties that I did not propose to impose a sentence that required you to serve an immediate term of imprisonment. You have shown over the period since your release from custody, a relatively significant time given the delays that there have been in these proceedings, to have the capacity to remain drug free and gainfully employed.
34In the rather unusual circumstances, you found yourself involved in very serious drug offending. As indicated, I accept that your role was limited and for a period of about three weeks. Trafficking in a drug of dependence is a very serious offence as reflected by the maximum penalty – as is the firearm offence. Principles of general deterrence, just punishment and denunciation of your conduct are important sentencing considerations. You would be well aware of the havoc that drugs such as ICE have on an individual's life and the impact ultimately it has on the community. Specific deterrence though still relevant has less application to you given the positive steps you have already taken in rehabilitation.
35The prosecution submitted that a term of imprisonment for your offending was warranted. Your counsel submitted I should impose a Community Correction Order to commence immediately and I had you assessed as to your suitability. I received a report indicating that you were suitable with conditions – that is what I propose to do, though also recognising that your offending warranted a term of imprisonment, time that you have already served. I am prepared to give you this opportunity to continue with your positive rehabilitation.
36You need to understand that this Community Corrections Order will be for a period of three years and that if you commit another offence in that time, you will come back before me, I will have to resentence you and I will not hesitate returning you to gaol, particularly if it relates to your drug use and the deterioration of your compliance with the Order and the drug treatment.
37In respect of Charge 1, you are convicted and sentenced to a term of imprisonment of 76 days.
38In respect of trafficking, Charge 2, you are convicted and sentenced to a term of imprisonment of one month.
39In respect of the firearm offence you are convicted and sentenced to a term of imprisonment of one month.
40In respect of each of those charges you are also placed on a Community Corrections Order for a period of three years which will commence immediately. The conditions are those as recommended in the report relating to treatment and rehabilitation for drugs, treatment and rehabilitation in respect of programs to reduce you reoffending, and supervision.
41I also propose to impose a community work condition. You will be required to do 100 hours community work. The treatment and rehabilitation program attendance can be deducted from that time, as indicated by Corrections.
42I will formally declare pre-sentence detention of 76 days.
43Pursuant to s6AAA of the Sentencing Act 1991, if you had not pleaded guilty to this matter I would have imposed a term of imprisonment of nine months.
44There is the disposal order. I will make that order in the terms ‑ ‑ ‑
45MS THOMAS: Your Honour, there is both a disposal and a forfeiture order in fact. So the disposal order is for three items and the forfeiture order is for two items, the latter being the firearm and cartridges. If Your Honour pleases.
46HER HONOUR: Yes. I will make those orders, thank you. Anything else?
47MS THOMAS: Not with respect to Mr Lee, Your Honour.
48HER HONOUR: Thank you. Thank you, Mr Hartnett, you are excused, thank you.
49MR HARTNETT: Thank you very much, Your Honour.
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