Director of Public Prosecutions v Lo
[2014] VCC 768
•28 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication | |
CR 14-00277
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAI MAN LO |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2014 | |
DATE OF SENTENCE: | 28 May 2014 | |
CASE MAY BE CITED AS: | DPP v Lo | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 768 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Trafficking in commercial quantity drug of dependence – Possess pre-cursor chemicals – Long-standing methyl amphetamine addiction
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981
Sentence: Total Effective Sentence 2 years 5 months’ imprisonment – Non-parole period of 19 months’ imprisonment – Pre-sentence detention 314 days declared as having already been served – Sentencing Act 1991 s.6AAA declaration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Regan | Solicitor for Office Public Prosecutions |
| For the Accused | Mr S Lindner | Tait Lawyers |
HER HONOUR:
1 Wai Man Lo, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, which has a maximum penalty of 25 years' imprisonment, and one charge of being in possession of precursor chemicals, which has a five-year maximum penalty.
2 Your offending was opened by the Crown as follows.
3 I was told that the two charges arise from a single seizure on 18 July 2013 at Box Hill.
4 You are a Chinese national and resident of Hong Kong. I was told that you were born on 8 June 1975 in Hong Kong.
5 You came to Australia on 4 June 2013 and you told police in your record of interview that the purpose for your entry was “a tour”. You had a return ticket, departing 16 July 2013. However, you cancelled the departure flight and did not rebook another.
6 You told police you had not visited Australia before and stayed in hotel rooms during your time here.
7 On 15 July 2013, you checked into an apartment building in Whitehorse Road, Box Hill, paying for three days, but you said you wished to stay there until 20 July 2013.
8 On Thursday 18 July 2013, at about 12.20 am, police attended your apartment in possession of a search warrant.
9 You were arrested and a search of the apartment was conducted. Investigators found a plastic food container which was near full and contained a white-yellow crystalline substance. This was on the balcony area of the apartment. The substance appeared to be wet and had been placed on the balcony to dry out. The substance turned out to be 296 grams of methylamphetamine mixture with a purity of 80 per cent.
10 Police also found a plastic bottle labelled Imperial Leather Body Wash, containing a pale-orange liquid together with traces of off-white crystals. This liquid was found to be a methylamphetamine mixture weighing 500 grams with a purity of 35 per cent.
11 Police also found drug paraphernalia, which included a measuring bowl, digital scales, a cooking plate and an ice pipe.
12 A further small amount of white crystal substance was found wrapped in paper sitting on a laptop on the bedside set of drawers, which turned out to be 0.9 gram methylamphetamine mixture at 90 per cent purity.
13 The total weight of methylamphetamine mixture seized was 796.9 grams. The threshold quantity for a commercial quantity under the Drugs Poisons and Controlled Substances Act 1981 is 500 grams, so that the methylamphetamine which you trafficked exceeded this threshold by nearly 300 grams.
14 Police also seized from a cardboard box a brown-coloured glass bottle which was labelled as a Chinese cough remedy. In fact, the bottle contained 310 millilitres of benzaldehyde. This chemical is a precursor chemical and the prescribed quantity applicable to it for the purposes of the precursor chemicals regulations is 50 millilitres.
15 You were interviewed with the assistance of an interpreter on 18 July 2013.
16 You said that you had been given the methylamphetamine in liquid form by an unknown male who told you to “fix it up” by boiling the liquid in order to dry out the drugs into a crystallised form. You did this, then placed the wet crystalline substance into the food container and placed it on the balcony to dry out.
17 You told police that you had possessed the drugs for about ten to 14 days and that you were waiting for a phone call for “instructions” from an unknown person who would tell you who to pass the drugs onto once they were completely dry. You said you were not sure as to the quantity of drugs in your possession.
18 You claimed to be unsure of the quantity of drugs in your possession. You made admissions about agreeing to manufacture the drugs in exchange for HK$50,000, the equivalent to approximately A$6,900. You said you had not been paid because this was supposed occur in Hong Kong once you got back.
19 I was told that 796.9 grams of methylamphetamine, if sold in standard one-ounce or 28-gram quantities would realise between $358,781 and $406,497. If sold in individual deals of .1 gram, then the potential sale value would total $890,700. While I have regard to these valuations, I have also had regard to the fact that sale of the entire quantity at once would sell for a lesser sum than the lowest of all of the figures to which I have just referred. However, on any view of things, the quantity of methylamphetamine trafficked by you was significant and most valuable. Your payment of nearly A$7,000 was not insignificant, which gives something of a reflection of the value of the drug you were trafficking, given your role.
20 Your offending is most serious and deserving of the imposition of a punishment which is just in all of the circumstances. Your conduct must also be denounced. Also strong weight must be given to general deterrence in a bid to deter others from offending as you have. Drugs are a scourge on our society, impacting upon not only those who use them, but upon their families and friends and our community as a whole. Your decision to play a part in this evil industry was a reprehensible one, apparently motivated by greed and in order to satisfy your own addiction to methylamphetamine. Your counsel submitted that the fact that you are addicted to the drug was a matter in mitigation, but I do not accept this. Whilst it might be said that someone who is not addicted and who has behaved as you have may have a higher level of moral culpability, the fact that you were addicted to methylamphetamine does not reduce your moral culpability, which I regard as high.
21 At the plea hearing, there was a good deal of discussion in respect of whether you were recruited in Hong Kong to come here and engage in trafficking. As I said at the plea hearing, I have suspicions about this, especially in view of the background and context information proffered by Mr Regan for the prosecution. However, on the basis of the actual material before me, I am unable to be satisfied beyond reasonable doubt that you were recruited for this specific purpose before leaving for Australia. I was told by your counsel that, having arrived in Australia, you were approached by a person who you met through a friend. You agreed to take part in the trafficking enterprise in the way that you admitted in the record of interview. I accept that you were not at the high end of the drug hierarchy. However, you played an important role, without which such an enterprise could not occur.
22 Further, I have had some difficulty reconciling your instructions to your counsel that you cancelled your ticket to return to Hong Kong, having decided to stay here illegally and to apply for residency down the track and have your family join you. This flies in the face of your record of interview, where you told police that you expected to be paid for your criminal activity when you returned to Hong Kong. I was also told by your counsel that you were closely monitored by those who employed you, such that you felt you had to comply with any instructions you were given. I must say it is somewhat puzzling that someone who you did not know would entrust you with such a valuable commodity, especially in circumstances where you were apparently a methylamphetamine user yourself.
23 I was told that when you first came to Australia, you lived with your sister in Balwyn, who had been a resident for three years. She has a family and runs a business here.
24 You have been using methamphetamine for about eight years and it was in this context that you were apparently prevailed upon to become involved in this drug manufacturing enterprise. Mr Lindner told me that, being a man with no prior convictions, you were well and truly out of your depth when you agreed to take part in this drug trafficking enterprise, that you had no training as a chemist and simply followed the instructions you were given by others further up the hierarchy.
25 I accept that your denial of trafficking in the record of interview was based on a misconception as to what your conduct amounted to. However, you did know that you were acting illegally in any event.
26 I was told that in order to fund your travel to Australia, you used some money of your own and also borrowed money. You stayed with your sister for a week, but you moved on to various hotels because expenses were higher than expected insofar as your sister was concerned. Also I was told that you were concerned not to expose your sister's children to your methylamphetamine habit.
27 In your favour, you were cooperative with police, making a number of admissions and you have pleaded guilty to the charges at an early stage. You are therefore entitled to a significant discount in the sentence you would have otherwise received, as you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of running contested proceedings.
28 I accept that you have limited education, which may have made it difficult for you to express remorse and insight into your offending. You did tell Dr Healey, psychologist, that what you did was wrong and you had sufficient decency to move out of your sister’s home because you did not wish to expose her children to your methylamphetamine habit. I have little doubt that you are sorry that you are in the predicament you are now in. In all the circumstances, I am prepared to find that you have some genuine remorse, but you do not express any appreciation of how the drugs which you were involved in producing can harm so many in the community. I hope that you come to appreciate this sooner rather than later, Mr Lo.
29 You have no prior convictions, which is a significant matter, having reached the age of 38 years with an unblemished record until now. You attended school until you turned 13. You have some training in electronics but have obtained employment when you could, often in unskilled areas. There have been periods when you were unable to obtain work whilst living in Hong Kong. You worked more often as your family grew, although your addiction to methamphetamine has impacted your attendance at work.
30 You married when you were 25 years old and now have three children; one child is eight years old and you have twins who are seven. You commenced using methamphetamine at a fairly late stage in your life, taking this up when you were 30 years old. Drug taking of this nature is also illegal in Hong Kong.
31 Your living expenses in Hong Kong were relatively low, as you live in a group of apartments with other members of your family. I was told that you managed to use some of your own money to help fund your trip here, also borrowing money from relatives for this purpose.
32 You have family to return to and who will provide some support in the future. I have been provided with a letter from a former employer in China, Keung Shing Engineering Co Ltd, who indicates that your work with them in the past as a contract labourer has been satisfactory, and that they are willing to recruit you in the near future. This means you have a legitimate job to return to, rather than illegal activity here.
33 I accept that you have a degree of remorse for what you have done, as I said, although this seems to be more to do with your own predicament than how your actions might impact on others in our community. I also accept the level of your capacity to express appropriate insight may be hampered by your limited education. However, I accept that you have taken responsibility for what you have done at an early stage and that your experience of prison has been a salient lesson for you, which are positive matters in respect of your prospects of rehabilitation.
34 I received certificates in relation to urine analysis, which are clear, and understand that you are now drug free, which has been a difficult process for you. Although you have felt sick during withdrawal from drugs, you are feeling better as time passes. You have come to the realisation that there is no future in being involved in the drug scene in any way, which has been emphasised to you by the considerable period you have been in custody for the first time in your life.
35 I take into account your pleas of guilty and the early stage at which these were entered. You are entitled to a significant discount in the sentence you otherwise received in pleading guilty at such an early stage, as you have saved the witnesses the time and trouble of giving evidence and you have saved the community expense of running contested. Taking all of the matters into account and your lack of prior convictions into account, but also bearing in mind the circumstances in which you offended and your long-standing addiction to methylamphetamine, I find that your prospects of rehabilitation are quite good. In all of these circumstances, I place some weight on specific deterrence.
36 Your only health concerns are those associated with your drug use, although I have not been advised as to precisely what these are. I take into account the report of Mr Healey, psychologist, dated 2 May 2014. He found you to be of high-average intellectual capacity, although you had reduced powers for delayed recall and personality testing was indicative of depression.
37 You have phone contact with your wife on a daily basis, using income of $32 a week from your work as a gardener at the MRC to fund these. Your sister, who lives here and who has a restaurant here, has visited you on a weekly or fortnightly basis, but in more recent times, she has found it difficult to see you so regularly and her visits have reduced. Whilst on remand you have been isolated because no-one else in your unit speaks Cantonese and you spend your time in the yard or else watching television, which you don’t understand because of the language barrier. You have been able to read newspapers that your wife has sent you. Although you have attempted an English course, your very limited skills have meant, and will mean, that you cannot access courses available to the prison population. I have allowed for the fact that, because of your isolation due to the language barrier and due to the fact that you have depression, time in custody has been and will continue to be harder than for others without these difficulties.
38 I am not prepared to allow for your inevitable deportation as being a relevant hardship in all of the circumstances of your case. You came to Australia on a tourist visa on 4 June last year with a return air ticket. Subsequently, you decided you would like to stay on and cancelled the return flight, apparently intending to remain here illegally and to apply for residency in due course. I have already referred to the contradictory matters in respect of this aspect. However, even if I accept that you were genuinely expecting to stay here in the long term, such expectation was a recently held one and lacked a good degree of reality in terms of your overall situation. In this regard, I note that you received your instructions and substances in order to conduct the illegal activity which leads to the matters before me about one month after you arrived here. To claim hardship because of the fact that you will be deported after you have completed a gaol term here in all of the circumstances, including the fact that you chose to behave illegally within such a short space of time of arriving here, further compromising any prospect of staying in Australia legally, is fanciful in my view. I was told that your present attitude is that, given you have been served with a deportation notice, you wish to return to your family as soon as you are able.
39 I have also factored in that this is your first experience of gaol.
40 Your Counsel submitted that the sentence which I impose in respect of Charge 2 ought be served concurrently with Charge 1 as the two are intertwined. The prosecutor submitted that this is not the case and that your possession of the pre cursor chemical is a separate matter to the boiling-down process, which is the subject of Charge 1. In the circumstances, I accept the Crown submission and intend to impose a sentence which has a degree of cumulation as between the charges to reflect separate incidents of offending. In doing so I have borne in mind the principle of totality.
41 Your Counsel submitted that whilst he did not say that you ought be eligible for parole immediately, you ought not be required to serve very much longer before becoming eligible for parole.
42 In accordance with the current state of the law, the Crown did not submit an appropriate range of sentences but provided me with some cases in a bid to provide some assistance as to current sentencing practice, although Mr Regan acknowledged that these were of limited utility, as none were situations analogous to yours.
43 I have arrived at a sentence which, in my view, gives appropriate weight to all relevant sentencing principles in the circumstances of your case.
44 Would you please stand up, Mr Lo.
45 You are convicted of both charges.
I make orders for disposal and forfeiture in accordance with the draft orders previously provided, which orders are not opposed by you.
I make an order for a forensic sample to be taken from you by way of a scraping from the mouth. I make the order because it is not opposed by you, because of the seriousness of the offences and because it is in the public interest to do so. Notwithstanding your present lack of opposition to the order I warn you that if you do not co-operate with the officer who is authorised to take the sample, reasonable force may be used to ensure your compliance.
46 In respect of Charge 1 you are sentenced to two years, three months' imprisonment
47 In respect of Charge 2 you are sentenced to eight months' imprisonment
48 I direct that two months of the sentence on Charge 2 be served cumulatively with the sentence on Charge 1, producing a total effective sentence of two years, five months' imprisonment.
49 You are to serve 19 months’ imprisonment before becoming eligible for parole.
50 I declare that you have already served 314 days by way of pre-sentence detention.
51 If not for your pleas of guilty, I would have sentenced you to a total effective sentence. of three years, six months' imprisonment and directed that you serve two years, six months before becoming eligible for parole.
52 Take a seat for a moment, please, sir. Is there anything arising?
53 MR REGAN: No, Your Honour.
54 MR LINDNER: No, Your Honour.
55 HER HONOUR: All right, thank you. If you might remove Mr Lo. Thank you.
56 MR LINDNER: Your Honour, could Mr Lo remain for 00
57 HER HONOUR: Did you want to have a - yes.
58 MR LINDNER: - - - just for a couple of minutes whilst I have the assistance of the interpreter.
59 HER HONOUR: Do you have any difficulty with that? I know that the practice usually is that I have to stay until the chat is had. Is that all right with you?
60 INTERPRETER: Yes. No problem, Your Honour.
61 HER HONOUR: All right. Yes, thank you.
62 MR LINDNER: Thank you, Your Honour.
63 HER HONOUR: We'll adjourn.
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