KA Yan Lam v The Queen
[2017] VSCA 206
•4 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0025
S APCR 2017 0106
| KA YAN LAM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, HANSEN and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 August 2017 |
| DATE OF JUDGMENT: | 4 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 206 |
| JUDGMENT APPEALED FROM: | Unreported, County Court of Victoria, Judge Dean, 17 October 2016 |
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REASONS DELIVERED EX TEMPORE
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CRIMINAL LAW — Appeal — Conviction — Commonwealth drug offences — Methamphetamine — Appellant convicted on guilty plea of importing marketable quantity of controlled drug contrary to Criminal Code (Cth) s 302.3(1) — Prosecution error as to applicable marketable quantity — Distinction between marketable quantity of controlled drug and border controlled drug — Substantial miscarriage of justice — Appeal allowed — Conviction set aside — Conviction for trafficking controlled drug against Criminal Code (Cth) s 302.4(1) substituted — Criminal Code Regulations 2002 (Cth) schs 3, 4, Criminal Procedure Act 2009 (Vic) ss 276(1)(c), 277(1)(c)(ii).
CRIMINAL LAW — Appeal — Sentence — Commonwealth drug offences — Applicant initially sentenced to 6 years’ imprisonment for trafficking in marketable quantity of controlled drug — Conviction set aside and conviction for trafficking simpliciter substituted — Sentencing discretion reopened — Applicant of good character with no prior history — Resentenced to 3 years’ imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gullaci | Theo Magazis & Associates |
| For the Crown | Ms K Breckweg | Commonwealth Director of Public Prosecutions |
PRIEST JA:
Controlled drugs and border controlled drugs
On 7 October 2016, the applicant pleaded guilty in the County Court to attempting to possess a marketable quantity of a border controlled drug[1] (charge 1) and trafficking a marketable quantity of a controlled drug[2] (charge 2). For the purposes of both charges, the relevant drug was methamphetamine.
[1]Criminal Code (Cth), ss 11.1(1) and 307.9(1). The maximum penalty is 25 years’ imprisonment.
[2]Criminal Code (Cth), s 302.3(1). The maximum penalty is 25 years’ imprisonment.
The Criminal Code (Cth) (‘the Code’) distinguishes between a controlled drug and a border controlled drug. By virtue of the definitions of each found respectively in ss 301.1 and 301.4 of the Code, however, both are a substance, other than a growing plant, that is:
(a)listed by a regulation as either a controlled drug or a border controlled drug; or
(b)a drug analogue of either a listed controlled drug or a listed border controlled drug; or
(c)determined by the Minister as either a controlled drug or a border controlled drug under section 301.13 (which deals with emergency determinations of serious drugs).
Importantly, the Criminal Code Regulations 2002 (Cth) (‘the Regulations’) prescribe commercial, marketable and trafficable quantities of controlled drugs; and commercial and marketable quantities of border controlled drugs.
Methamphetamine is both a controlled drug and a border controlled drug.
By virtue of reg 5A and Schedule 3 of the Regulations, commercial, marketable and trafficable quantities of methamphetamine as a controlled drug are respectively .75 kilograms (750 grams), 250 grams and 2 grams; and by virtue of reg 5D and Schedule 4 of the Regulations, the commercial and marketable quantities of methamphetamine as a border controlled drug are respectively .75 kilograms (750 grams) and 2 grams. Hence the marketable quantity of methamphetamine as a controlled drug is 250 grams, but the marketable quantity of methamphetamine as a border controlled drug is a mere 2 grams. The importance of the distinction will later become clear.
Charges and sentence
The first charge on the indictment alleged that the applicant —
at Mitcham and other places in Victoria on the 17th day of August 2015 did attempt to commit an offence against subsection 307.9(1) of the Criminal Code (Cth), in that she attempted to possess a substance, the substance having been reasonably suspected of being unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity possessed being a marketable quantity.
And the second charge was that the applicant —
at Balwyn North and other places in Victoria between the 31st day of July 2015 and the 3rd day of September 2015 did traffick in a substance, the substance being a controlled drug, namely methamphetamine, and the quantity trafficked being a marketable quantity.
As I have indicated, on 7 October 2016 the applicant pleaded guilty to both charges. Following a plea, on 17 October 2016 the judge sentenced the applicant to be imprisoned for four years on charge 1, commencing 17 October 2016, and for six years on charge 2, commencing 17 October 2018.[3] The total effective term of imprisonment was thus eight years, upon which the judge fixed a non-parole period of five years and nine months.[4]
[3]By virtue of s 19(2) of the Crimes Act 1914 (Cth), where a person is convicted of two or more federal offences at the same sitting, and the person is sentenced to imprisonment for more than one of the offences, the sentencing court ‘must, by order, direct when each sentence commences’.
[4]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that but for the plea of guilty he would have imposed a total effective sentence of 10 years’ imprisonment with a non-parole period of eight years.
Grounds of appeal
Despite having pleaded guilty, the applicant seeks leave to appeal against her conviction on charge 2 on the following ground:
1. The conviction on Charge 2 should be set aside because upon the admitted facts, the applicant could not have been found guilty of the offence charged.
The applicant also seeks leave to appeal against sentence on two grounds as follows:
1. The sentence imposed on Charge 2, the order for cumulation, the head sentence and non-parole period were manifestly excessive.
2. The sentencing judge erred in sentencing the applicant on the basis that a marketable quantity of methamphetamine, as a controlled drug, was an amount between 2 and 749 grams.
With perspicuous fairness, the respondent conceded that there has been a substantial miscarriage of justice within the meaning of s 276(1)(c) of the Criminal Procedure Act 2009 (‘CPA’), and that the Court should allow the appeal against conviction on charge 2. It was submitted that the Court should substitute a conviction for the lesser offence[5] of trafficking in a controlled drug pursuant to s 302.4(1) of the Code and sentence the applicant for that offence.
[5]See s 277(1)(c) of the CPA.
For reasons that follow, I am of the view that the Court should act upon the respondent’s concession and set aside the conviction on charge 2. The respondent’s submission that a conviction for an offence under s 302.4(1) of the Code ought to be substituted should also be accepted. Self-evidently, it will accordingly be necessary to consider the issue of sentence afresh.
The offending
So that the issues raised by the present application might be better understood, it is convenient to summarise the essential facts founding the two charges.
On 25 June 2015, the applicant, a Chinese national, arrived in Melbourne Airport on board Malaysian Airlines flight MH147. Her incoming passenger card, which was signed by the applicant, noted her intended address in Melbourne as ‘8/91–93 Sandown Road, Springvale Victoria 3171’.
Between 25 June and 22 July 2015 the applicant, using the name ‘Josi’, rented a room at that Sandown Road address at a cost of $150 per week. On 8 July 2015, the applicant also rented a room at a Balwyn North house for $145 per week. She paid the landlord $290 in cash for one week’s rent and a bond.
On 19 August 2015, Australian Border Force officers examined a postal consignment from China purporting to contain stationery. The examination revealed 832.6 grams of a crystalline substance — containing 662.7 grams of pure methamphetamine — hidden in 72 marker pens.
Attempts were made to deliver the consignment to the consignee, ‘Happy So’, at premises in Mitcham. Australian Federal Police (‘AFP’) investigators obtained a telephone intercept warrant in respect of a telephone number being used by the applicant. Intercepted communications on that telephone number revealed that the applicant took steps to recover the consignment. She also attended at an Australia Post outlet twice to recover the consignment, but was unsuccessful in her attempts to obtain possession of it (charge 1 – attempting to possess a border controlled drug, methamphetamine, in a marketable quantity).
On 10 September 2015, AFP officers executed a search warrant at the applicant’s Balwyn North residence and arrested her. Various items were seized, including:
· a Hong Kong passport in the name Ka Yan Lam;
· a ‘Gionee’ brand white smart phone containing a Vodafone SIM;
· a Vodafone starter kit with a handwritten note ‘0410 169 597’;
· a black ‘LG’ brand smart phone with charger;
· a black ‘Telstra’ brand mobile phone;
· two Chinese mobile SIM cards;
· a parcel box with consignment reference ‘EA114194281CN’;
· a parcel box with consignment reference ‘EE963414365CN’;
· an EMS receipt, ‘EEA855586485CN’ addressed to ‘Cara Alam, 32 Walnut Road, North Balwyn’;
· a ‘Propert’ portable digital scale;
· one plastic bag containing zip lock bags, tape and receipts; and
· a one way flight itinerary for the applicant on 24 June 2015.
Analysis of the seized black Telstra mobile telephone revealed four images of a white powder substance as follows:
· Image 1 — white powder substance in a clip seal bag atop a ‘Propert’ portable digital scale. The scale shows the weight of the item to be 1,009 grams. The scale appears to sit on a chest of drawers identical to those found in the applicant’s room in Balwyn North. The file name suggests the image was taken on or around 26 August 2015.
· Image 2 — white powder substance in a clip seal bag atop a ‘Propert’ portable digital scale. The scale shows the weight of the item to be 629 grams. The scale appears to sit on top of the same chest of drawers in image 1. The file name suggests the image was taken on or around 26 August 2015.
· Image 3 — white powder substance in a clip seal bag atop a ‘Propert’ portable digital scale. The scale shows the weight of the item to be 838 grams. The scale appears to sit on top of the same drawers as in image 1. The file name suggests the image was taken on or around 27 August 2015.
· Image 4 — a white powder substance in a clip seal bag atop a’ Propert’ portable digital scale. The scale shows the weight of the item to be 843 grams. The scale appears to sit on top of the same drawers as in image 1. The file name suggests the image was taken on or around 27 August 2015.
The conviction application
For the purposes of charge 2 — trafficking in a marketable quantity of the controlled drug, methamphetamine — the applicable marketable quantity is 250 grams (a commercial quantity being 750 grams), not 2 grams as in the case of a border controlled drug.
At the time the indictment was laid the prosecution accepted that the precise amount that the applicant had trafficked could not be proved beyond reasonable doubt. Purporting to apply the available evidence, the prosecution submitted to the judge on the plea that the amount trafficked would not have been less than 2 grams, and not more than 750 grams, of pure methamphetamine, and the judge sentenced the applicant on this basis. In this Court the respondent conceded, however, that in so far as this submission suggested that a marketable quantity was between 2 and 750 grams, it was erroneous (since, at the risk of repetition, the applicable marketable quantity was 250 grams). Moreover, the respondent conceded that the submission led the sentencing judge into error.
Furthermore, the respondent submitted that for the applicant to be guilty of the offence under s 302.3(1) in charge 2, the prosecution was required to prove beyond reasonable doubt that the applicant trafficked in a marketable quantity of a controlled drug, which was at least 250 grams of the drug. In the circumstances, however, the prosecution could not prove the exact amount trafficked, yet had submitted that it was somewhere between 2 grams and 750 grams. It was submitted that although the evidence as to the gross quantity of methamphetamine dealt with by the applicant — 3,200 grams or thereabouts — was capable of supporting a finding that at least 250 grams of the pure drug had been trafficked, the prosecution case had not been put on that basis and there was no pertinent finding on that aspect by the trial judge. Accordingly, the respondent accepted that, despite the fact that the applicant had entered a plea of guilty to the charge under s 302.3(1), the applicant should not have been convicted of that charge.
Given the respondent’s submissions — which amount to a concession that the applicant could not in law have been convicted on the admitted facts[6] — I am of the view that the conviction on charge 2 should be set aside, and that a conviction for trafficking in a controlled drug under s 302.4(1) of the Code should be substituted.[7]
[6]See Beqiri v The Queen (2013) 37 VR 219, 225–6 [38]–[43].
[7]The maximum penalty for the offence is imprisonment for 10 years or 2,000 penalty units, or both.
Resentencing
Since a conviction for trafficking simpliciter is to be substituted on charge 2 — an offence which carries a maximum penalty of imprisonment of 10 years (as opposed to 25 years’ imprisonment for trafficking a marketable quantity of a controlled drug) — it is obvious that the applicant must be resentenced. The application for leave to appeal against sentence thus largely falls away, the Court being required to exercise the sentencing discretion afresh.
In considering the question of resentence, I have had regard to all of the circumstances of the applicant’s offending, and have endeavoured to take into account the various features in mitigation. I note that the applicant was 28 years of age at the time of offending, and was previously of good character. She has no previous or subsequent criminal history. Moreover, she pleaded guilty at an early stage and evidenced some remorse. Additionally, imprisonment will involve a greater degree of hardship for the applicant than for an Australian national, given her isolation in this country from friends and family.
It has not been suggested that the individual sentence of four years’ imprisonment on charge 1 should be disturbed. I would confirm that sentence.
On charge 2, I would impose a sentence of three years’ imprisonment.
I would make orders for the commencement of the sentence on charge 2 the practical effect of which will be to cumulate two years of the sentence of imprisonment on charge 2 on the sentence on charge 1.[8] In the result, the total effective sentence thus produced will be imprisonment for six years. I would fix a non-parole period of four years.
[8]See footnote 3 above.
HANSEN JA:
I agree.
COGHLAN JA:
I have had the great benefit of reading in draft the reasons given by Priest JA for granting leave and allowing the appeal and I agree with the orders he proposes. I regard it as necessary to make some remarks of my own.
I observed in argument that weight ought to have been given to the applicant’s plea of guilty to the charge of trafficking in a marketable quantity of methamphetamine; there being no evidence before the Court that the plea was entered as a result of a misunderstanding.
After examining the documents recovered on 10 September 2015, it seems the applicant had possibly dealt with about 3 kilograms of white powder and had been involved with a number of consignments.[9]
[9]See above [17].
Earlier, on 3 September 2015, AFP officers examined the garbage bin for the Walnut Grove, Balwyn address. There they recovered:
·Australia Post Padded Bag addressed to ‘Lau Ying Josi’ at 8/91-93 Sandown Road, Springvale;
·64 whiteboard markers. Subsequent examination showed traces of methamphetamine;
·Vodafone recharge receipt for service 0410 700 878; and
·Torn paper with handwritten notation, ‘Tot [being short for ‘total’] = 629g.’
That material bore resemblance to that which had been recovered by the AFP relevant to charge 1. It appears to have a direct connection with Image 2 referred to at [18] of the judgment of Priest JA.
It is clear from the analysis conducted by Priest JA that, on the plea, the case was opened erroneously. Because of that error the prosecutor said:
On the basis of available evidence, including the photos on the accused’s phone, the Crown alleges that the accused trafficked in an amount of no less than two grams of pure methamphetamine. The purity level of the trafficked methamphetamine is unknown.
Immediately thereafter there was a discussion with the learned sentencing judge which culminated with the prosecutor saying:
Prosecutor:Yes. The accused has been charged with a trafficable quantity which is here between two grams pure and 750 grams pure.
His Honour: Yes.
Prosecutor:And I don’t put it any higher than it’s somewhere in that range.
The question of quantity of methamphetamine trafficked was never resolved on the plea and remained unsatisfactory. There is no offence of trafficking a marketable quantity of a border controlled drug, hence there could not have been a charge for that offence. The quantity had to be that applicable to a controlled drug, which is between 250 grams and 750 grams. But in any event, in terms of the way the plea was conducted the question of how quantity was to be approached was never satisfactorily resolved.
In ordinary circumstances this Court would only allow an appeal against conviction if the plea had been entered in error or on the admitted facts the applicant could not have been convicted.[10]
[10]Beqiri v The Queen (2013) 37 VR 219, 225–7 (Priest JA). See also the cases referred to therein.
I would usually regard this as being such a case. However, as has been pointed out by Priest JA, the respondent concedes the point because of the way the case was conducted below.
I would have thought that the starting point was the plea of guilty. That was a plea to an amount between 250 grams and 750 grams. The allegation at its highest was over 3 kilograms. The resolution, in the applicant’s favour, was a satisfactory one. The applicant was in a unique position to know what amount had been trafficked. In view of the receipt of at least 629 grams, a plea which recognised at least 250 grams was not at all implausible. But the applicant in fact fell to be sentenced for trafficking at least 250 grams, not between 2 grams and 750 grams.
Finally I regard the way this case was opened to the learned sentencing judge as inadequate. Apart from the error already identified, it did not seem to me that the opening identified in a straightforward and narrative way what it was alleged that the applicant had done in relation to each offence.
I would not go behind the concession now made because that concession was based on accepting that an error had occurred below, which mislead the sentencing judge and fairness required the concession to be made.
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