DPP v Lam

[2017] VCC 606

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00756

DIRECTOR OF PUBLIC PROSECUTIONS

v

JIMMY LAM

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 Jul 2016
DATE OF SENTENCE:	17 May 2017
CASE MAY BE CITED AS:	DPP v Lam
MEDIUM NEUTRAL CITATION:	[2017] VCC 612

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – attempt to pervert the course of justice.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Bate	John Cain, Solicitor for the Director of Public Prosecutions
For the Accused	Ms C. Ratcliffe-Jones	Victoria Legal Aid

HER HONOUR:

1Jimmy Lam, you have pleaded guilty before me to one charge of attempting to pervert the course of justice.  That is a very serious charge and that is reflected in the maximum penalty that is prescribed by law which is
25 years' imprisonment.

2Having regard to particular features of your case, I do consider that this offending is at the lower end of the scale of seriousness but nonetheless is of such seriousness that does require the imposition of a term of imprisonment to be immediately served.

3The context to your offending was that you were sentenced at Dandenong Magistrates' Court on 19 February 2015 to an aggregate term of 12 months' imprisonment for a number of drug and dishonesty offences. The court ordered that the sentence be served by way of a Drug Treatment Order pursuant to s.18Z of the Sentencing Act 1991 and the order was due to be completed on 18 February 2017.

4In the opening that was read to the court at the plea hearing, the prosecutor confirmed as part of your induction process in respect to that order, you were advised that you would be sanctioned by the Drug Court Magistrate each time you did not comply with your order requirements or when you breached a condition of your drug treatment order.

5You were also informed that if you failed to attend or failed to provide a reasonable excuse for any absences, that the Presiding Magistrate could impose an imprisonment sanction in respect to that non-compliance.

6Between 30 June and 13 July 2015, you failed to attend four urine screens scheduled with the Drug Court and that rendered you liable for nine sanctions in the absence of a reasonable excuse.

7On 14 July 2015, you were required to attend the Dandenong Magistrates' Court for a Drug Court hearing review.  You provided your Drug Court case manager, Trang Buick, with a forged medical certificate for the period commencing 30 June to 13 July 2015.  This certificate was purportedly signed by Dr James Luong of the Monash Plastic Maxillofacial Surgery Centre.

8At the review on 14 July 2015, Magistrate Bryant adjourned your hearing until 21 July 2015 and no sanctions were recorded.

9You obviously had second thoughts about what you had done because at about 5.07 pm on that day, you texted your case manager and part of the message was that you told your worker that you were honestly sorry and could not apologise enough for lying to both of you about how many days you went to the clinic, you said, "I am really sorry if I got you in any trouble, I'm so ashamed ATM and I should have told you what really happened."

10On 15 July Ms Buick then contacted the Maxillofacial Surgery Centre and she then became aware that you had never been a patient at the centre and that the doctor, Dr Luong, did not work there.

11You then attended your supervision appointment with Ms Buick at 12.30 pm on 15 July and admitted to her that you had provided a false medical certificate.  She then referred the matter to the police for investigation and also notified the
Presiding Magistrate prior to your next review that was to be conducted on 21 July 2015.

12The fraudulent medical certificate that was produced to the Drug Court on 14 July 2015 resulted in you avoiding the accrual of nine sanctions which would have equated to nine days' imprisonment.  On 21 July 2015 you appeared before the Drug Court for that review and the nine sanctions were all applied and in addition, you accrued three additional sanctions for providing a false document.

13To an extent therefore you have already been punished in part for your offending and I have taken that into consideration in formulating the appropriate sentence to be applied in respect to the indictable charge. 

14You were arrested on 12 January 2016 and at the time of the arrest at the formal record of interview you made relevant admissions.  You told police you forged your medical certificate, saying that you were at hospital so that the court did not give you a sanction.  You told police that you made up the false certificate by typing it up on your computer and that you had given it to your case worker.

15You did express that it was a stupid thing to do as you had tried to get yourself out of being in prison.  I accept that you made full and frank admissions to your Drug Court case manager at around the time of the offending.  You also made appropriate admissions to police when you were arrested.

16I further accept that you entered a plea of guilty at the first opportunity, namely at the first committal mention, and I have taken into account that the plea was entered at the earliest opportunity, that it has utility and you have facilitated justice so your sentence is discounted accordingly. 

17I have had regard to the submissions made on your behalf by Ms Ratcliffe-Jones.  She has submitted that there was a particular context to the offending, that you were concerned that there were associates known to you who were undergoing sentence at Port Phillip Prison and that you were keen to avoid going to prison at that time, because you feared further reprisals and that you had instructed her that you had already been assaulted by those people. That therefore explains your offending.

18I am not really in a position to say whether or not I accept that as an explanation for your offending, having regard to your long and extensive criminal record that you have admitted.  You have numerous court attendances and convictions for dishonesty offending.  I am not sure whether that is an excuse or made-up facts but I have had regard to your early plea of guilty.

19As was stated by your counsel, there are aggravating features to your offending, namely that it was committed whilst you were undergoing sentence on the Drug Treatment Order.  Your liberty was conditional.  You abused the trust placed in you by the court worker and also the court itself and you have abused the opportunity that was given to you by the court.

20So in sentencing you, there is a real need not only to emphasise deterring others but also specific deterrence.  This was dishonest and calculated behaviour that was designed to avoid you having to undergo the sanctions that you knew would have been imposed by the Drug Court and it is action which could have - well, it did undermine the administration and effectiveness of the Drug Treatment Order that you were undergoing.

21In my opinion the only appropriate sentence to be imposed is a term of imprisonment and that other sentencing options are not available.

22In formulating the appropriate sentence, I have had regard to all the principles set out in the Sentencing Act 1991.  I am obliged to impose just punishment.

23In terms of your rehabilitation, whilst I accept that there has been some improvement in terms of your overall situation in relation to your heavy addiction to both the drug heroin and ice, overall, I am still really guarded about your commitment to total abstinence from drugs and therefore I am guarded in terms of your prospects for the future.

24However, I am not completely convinced that your situation is totally hopeless.  I do consider that if it is true that you are currently not using and you have got a commitment to not use so as to reengage with your children in the future, there is some prospect for hope for the future, albeit slight.

25You have had some time in custody recently, and I just repeat the chronology that has been set out before me this morning.  I released you under a Deferral of Sentence Order on 11 July 2016 to enable you to complete your Drug Treatment Order and take up the opportunity provided to you by the Drug Court.  However, that Drug Treatment Order was cancelled and a warrant was issued on 19 September 2016.

26My understanding is that a further warrant was issued in respect to your non-attendance in this court on 20 February 2012 and that warrant was executed on 7 April 2016.  You were remanded on that date in respect to both the warrant issued by this court and also a warrant issued by the Drug Court.  Since 7 April 2016, you have served 86 days referable to the Drug Treatment Order and there are some 27 days to be declared in respect to this current matter, as I understand it.  Is that correct?

27MS BATE:  Yes, Your Honour.

28MS RATCLIFFE-JONES:  Sorry, Your Honour, it is actually since 4 May that he has served the 86 days, Your Honour, from 7 April.

29HER HONOUR:  Sorry, that is correct, yes.   Just to confirm that, you were taken into custody on 7 April 2017.  You were then returned to the Dandenong Drug Court on 4 May 2017 at which stage you were dealt with by the Magistrate and sentenced for 86 days in respect to the order made pursuant to the Drug Treatment Order. So that you have served 86 days referable to the days remaining, the custodial component days remaining under the Drug Treatment Order.

30That order has now expired, it expired on 18 February 2017 and there are a total of 27 days to be declared in respect to this current offending.  So that sets out the chronology.  I have had regard to all of that.

31And I just repeat some of the remarks made by Her Honour Judge Hampel in the similar but not related matter of Marissa Furlong, DPP v Marissa Furlong [2016] VCC 991. Her Honour too was dealing with a charge of attempt to pervert the course of justice relating to the provision of a forged medical certificate by the offender, Ms Furlong, to the Drug Court at Dandenong. Her Honour emphasised that the Drug Court is an important sentencing initiative that has only recently been introduced into the sentencing regime in this State. It is an order – and the Drug Treatment Order is one that has a focus on rehabilitation and it acknowledges the difficulties that people have such as yourself, who are long term users who often relapse, but with support and highly structured orders, can be assisted to address their underlying offending behaviours.

32It is a sentencing option that does very much depend on trust and in this case you have breached - your offending is a gross breach of trust.  Her Honour also emphasised that it was important that the courts, when dealing with charges of this nature emphasise how important it is to ensure that the integrity of the Drug Court is upheld by appropriately sentencing people when they abuse the trust of the court by producing a forged document such as in this case.

33Whilst it is a single act relatively easily detected, not involving any others in a conspiracy to mislead the court, it is nonetheless serious offending and unless the Drug Court is seen to be taking seriously attempts by people to mislead them in this way, then the power to do its work and public confidence in allowing the Drug Court to do its work may be undermined.

34So one of the purposes of sentencing you today is to ensure the integrity of the Drug Court, to underscore the need to send out a message, a powerful message to others who are in a similar situation that if you offend in this way, then you face stern punishment.  It is important that this court when dealing with serious offences of this nature emphasise the importance of maintaining the integrity of the Drug Court. In all those circumstances having regard to your past criminal history, my findings in respect to the objective seriousness of the matter, and the need for deterrence, the imposition of a gaol term to be immediately served is the only appropriate sentence in all the circumstances.

Formal court orders –

35You will convicted and sentenced to three months' imprisonment in respect to the one charge of attempting to pervert the course of justice.

36I make a declaration pursuant to s.6AAA of the Sentencing Act 1991 but for your plea of guilty, I would have imposed a term of imprisonment of six months.

37I make a declaration in respect to pre-sentence detention. I declare that you have already served 27 days pre-sentence detention.

38MS RATCLIFFE-JONES:  Your Honour, can I just ask if that sentence is to be served concurrent with the current sentence he is undergoing or to be served cumulative because he's currently undergoing the sentence of 86 days.

39HER HONOUR:  Yes.  It's to be served concurrently.

40MS RATCLIFFE-JONES:  As Your Honour pleases.

41HER HONOUR:  With any State sentence that he is currently undergoing. All right.  I think that covers everything.  He is still on remand in respect to those other matters that are yet to be dealt with.  All right.  So
Mr Lam can be taken to downstairs.  Do you want to take a moment just to talk to him before he is taken downstairs or will you see him in the cells?

42MS RATCLIFFE-JONES:  I’ll see him downstairs, Your Honour.

43HER HONOUR:  Thank you.

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