R v Lee

Case [2007] NSWCCA 234

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v LEE [2007]  NSWCCA 234

FILE NUMBER(S):
2006/2904

HEARING DATE(S):               10 April 2007

JUDGMENT DATE: 3 August 2007

PARTIES:
The Crown Cth (Appl)
Kong Jimmy Lee (Resp)

JUDGMENT OF:       McClellan CJ at CL Howie J Hall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          06/11/0187

LOWER COURT JUDICIAL OFFICER:     Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION:    24 November 2006

COUNSEL:
M King SC (Appl/Crown)
A Francis (Resp)

SOLICITORS:
Director of Public Prosecutions Cth (Appl)
Gregory J Goold (Resp)

CATCHWORDS:
CRIMINAL LAW – Crown appeal – conviction after trial – importation of 76.3kgs heroin concealed in containers – significant role played by respondent – lesser role played by co-offender – relevance of the weight of the drugs in sentencing – whether error in finding respondent had a middle level of responsibility

LEGISLATION CITED:
Customs Act 1901
Crimes Act 1900

CASES CITED:
Bick v R [2006] NSWCCA 408
Law v R [2006] NSWCCA 100
R v Kaldor 150 A Crim R 271
R v MacDonnell (2002) 128 A Crim R 44
R v Stanbouli (2003) 141 A Crim R 531
R v Sweet [2001] NSWCCA 445
R v To NSWCCA 362; 157 A Crim R 80
R v Wall [2002] NSWCCA 42
R v Wong & Leung (1999) 48 NSWLR 340
The Queen v Olbrich (1999) 199 CLR 270
Vinh Hai Truong (2006) NSWCCA 318
Wong v The Queen (2001) 207 CLR 584

DECISION:
1. Appeal upheld
2. Quash the sentence imposed and in lieu sentence the respondent to a non-parole period of 18 years and 11 months to commence on 2 December 2005 and expire on 1 November 2024 with an additional term of 8 years and 6 months to expire on 1 May 2033. The earliest the respondent would be eligible to be released on parole would be 1 November 2024.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2904

McCLELLAN CJ at CL
HOWIE J
HALL J

FRIDAY 3 AUGUST 2007

R  v  Kong Jimmy LEE

Judgment

  1. McCLELLAN CJ at CL:  The Crown has appealed the sentence imposed upon Kong Jimmy Lee, the respondent, following his conviction after trial in the District Court in Sydney. The respondent had been indicted on the charge that he:

    “Between about 24 February 2005 and about 26 April 2005 at Melbourne, Victoria; Adelaide, South Australia and Sydney, New South Wales, imported goods into Australia, being prohibited imports to which s 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of heroin being not less than the commercial quantity applicable to heroin.”

  2. Schedule 6 of the Customs Act 1901 provides that a commercial quantity of heroin is not less than 1.5 kilograms. The heroin, the subject of the respondent’s charge, weighed 76.3 kilograms with the gross weight of the compressed blocks of white powder being 105.7 kilograms. The wholesale value of the heroin was estimated to be $28,458,000 and the street value, after “cutting” $266 million. The…

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Details
AGLC
R v Lee [2007] NSWCCA 234
Case
[2007] NSWCCA 234
Decision Date

CaseChat Overview and Summary

The appeal heard by the court in R v Lee was brought by the Crown against the conviction and sentence of the respondent, Lee, who had been found guilty of being knowingly concerned in the importation of 76.3 kilograms of pure heroin. The heroin was concealed in containers and imported into Australia. The court was tasked with determining whether the trial judge had erred in finding that Lee had a middle level of responsibility in the importation scheme.

The primary legal issue before the court was whether the trial judge had erred in assessing Lee's level of responsibility in the drug importation operation. The Crown argued that Lee played a more significant role than the middle level attributed to him by the trial judge. The defence contended that Lee was used as a 'bait' to test police interest and thus was dispensable in the hierarchy of the importation.

The court examined the evidence and found that Lee played a significant role in the importation, arranging for the containers to be leased, cleared through customs, and transported to rented warehouses. He communicated frequently with a person in Hong Kong, Ah Keung, who directed him and provided funds for the operation. Despite the Crown's argument that Lee was trusted by higher-ups and left to make key arrangements, the court accepted the defence's argument that Lee's role was middle-level, particularly in light of his being sent to New Zealand to test police interest. The court concluded that the trial judge's assessment of Lee's middle-level role was supported by the evidence.

The court further addressed the relevance of the weight of the drugs in sentencing, noting that while the quantity of drugs is a relevant factor, it is not the most important consideration. The court emphasised that the offender's role, knowledge, and the reward hoped for are also critical factors in determining the sentence.

The final orders of the court confirmed Lee's conviction and sentence, with the court upholding the trial judge's assessment of Lee's role in the importation scheme and the appropriateness of the sentence imposed.

Orders

Orders of the court

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Background

Background to the litigation

Accordingly, the sentence, excluding the period of 7 months which the respondent spent in custody in Hong Kong, was a total term of imprisonment of 17 years and 5 months with a non-parole period of 10 years and 5 months. The effective non-parole period is 11 years with a total term of imprisonment of 18 years.The facts The drugs were imported into Australia concealed in the structural framework of two containers. The respondent came to Australia from Hong Kong for the purpose of effecting the importation. He remained here for approximately 22 months, by which time the containers had been brought into the country and transported to warehouse premises which he had rented. A number of other people were involved in the operation and much of the evidence at the trial consisted of telephone intercepts. The respondent arrived in Australia with Wai and Ng on 5 July 2003. A company called JWJ Pty Limited was incorporated on 25 July 2003. The respondent became the sole officer of the company on 18 May 2004 and the sole shareholder on 22 February 2005. The respondent arranged for the leasing of the necessary warehouse premises by JWJ Pty Limited. These included premises in New South Wales and South Australia. The operation included a test run when a container containing rolls of carpet was imported from Belgium in June 2004. The imported drugs came in two containers imported from China. Each container contained 244 plastic sun lounges with the heroin hidden in the frame of the container. The sentencing judge made various findings in relation to the respondent’s role in the offence. The findings are contained in the following extract from her Honour’s remarks on sentence:“In the name of the company the offender undertook all of the steps necessary for landing the two containers, arranging for them to be cleared through customs, renting the warehouse in Adelaide and arranging for the delivery of the containers to the warehouse and for them to be unloaded there. Later he arranged for them to be collected from the Adelaide warehouse, moved to Sydney to another warehouse rented by him in the name of the company and unloaded here.While the containers were in the warehouse in Adelaide, police opened them and found heroin contained within plastic blocks hidden in the supporting beams of the two containers. The heroin was removed and the containers restored. A total of 105.7 kilograms of heroin amounting to 76.3 kilograms of pure heroin was removed from the containers.After the containers were delivered to Sydney, another offender Tang was seen by police outside the warehouse and eventually he and two others opened the containers and started opening the beam of the container where the heroin had been hidden. They were arrested and charged.The offender left Australia for Hong Kong on 25 April 2005 and remained there until his arrest and extradition to Australia to stand trial. He was arrested in Hong Kong on 12 May 2005 and has been in custody continuously in relation to this matter since then.After receiving the papers which contained a brief of evidence on which the extradition was based, the offender raised no objection to the extradition process. The time between his arrest and return to Australia was occasioned by administrative delays.Although there was no dispute that the whole of the time he has spent in custody should be taken into account, it was agreed that the sentence to be imposed on him can only be backdated to the date on which he was imprisoned in Australia, 2 December 2005. The balance of the time spent in custody in Hong Kong will be taken into account by a reduction in the non-parole period.In a criminal enterprise which involves a number of people, it is helpful to attempt to assign a role in the hierarchy of offenders to the person being sentenced as a guide to the measure of the criminality of the particular offender. In determining role and the sentence which reflects the objective criminality of the offence, I bear in mind what was said by the High Court in R v Olbric:‘… that whatever others stood to gain from the respondent’s conduct does not affect what sentence should be have been passed on him. That depended on what he had done and who he was not on what others may have hoped to gain from his activity.’The Crown argued that the offender was a central figure in the importation. He set up the framework for the physical importation of the containers through the company JWJ. Much of the Crown case consisted of telephone calls between the offender and others making arrangements to lease the warehouses et cetera, to receive them.The offender spoke frequently to a person in Hong Kong known as Ah Keung to whom the offender reported and who sent funds to the offender to cover the costs incurred in landing and accommodating the containers. From time to time the offender asked Ah Keung for money in the calls and Ah Keung indicated that he needed to ask others before he agreed to send the money.There were certain matters on which the offender had obviously been briefed by Ah Keung. For example, when the offender was speaking about the warehouses he had rented, Ah Keung asked about noise from the warehouse and whether it would be a problem. The offender replied that one warehouse was near a railway line where there was noise being made.The Crown’s submission acknowledged that the offender was not the person at the top of this importation but argued that he was obviously trusted by those higher than him. He was left to make the arrangements for the importation of the containers and to arrange to enclose them in a warehouse. He was given money to make various payments from time to time.The defence submitted that whatever role the offender played in Australia has to be measured against him being sent to New Zealand by Ah Keung.Towards the end of the offender’s time in Australia, and after the containers had been delivered to Sydney, the offender went to New Zealand. In the conversation between the offender and Ah Keung about that trip, it is clear that they are discussing whether or not the offender was being watched. Ah Keung tells him, in effect, that he has to go away but only for a few days and said words to the effect that if there is any trouble he will able to get lawyers and whatever the offender need to him in a short space of time.This direction to the offender by Ah Keung was said to amount to the offender being used as ‘bait’ to see whether the police were interested in him, because if they were they would arrest him before he left Australia, and it was argued this shows that the offender was someone who is dispensable in the hierarchy of the importation.The Crown argued that it was not because, at this time, the offender presumably did not know that the containers had been breached and the drugs removed and so would, on his state of knowledge, think there was little risk to run of being arrested.I accept that whatever the offender and Ah Keung might have thought they had to lose, the trip to New Zealand was to test the waters and it was contemplated that the offender would be arrested.I accept that this reflects on the offender’s role and places him at the middle level of this importation below that of Ah Keung.However the offender left Australia after the containers were delivered to Sydney and before any attempt was made by the importers to open them and release the drugs. This fortifies the finding that he was operating at a middle level of importance in the scheme of this importation.”The remarks of the sentencing judge

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

It is apparent that the role of Mo in the enterprise was significantly less than the respondent’s. All of Mo’s activities were the subject of direction by others. His participation in the enterprise was to be confined to his use of cutting equipment to release the drugs. Although he was to be paid a considerable fee, it was a one off payment. He played no part in the planning or management of the enterprise. The appropriate sentence for the respondent must reflect his far more significant role in the enterprise than that of Mo.Consideration of relevant principles The High Court has given guidance on the sentencing of drug offenders: see Wong v The Queen (2001) 207 CLR 584; The Queen v Olbrich (1999) 199 CLR 270. Wong was an appeal in which a guideline provided by this Court was set aside. (see R v Wong & Leung (1999) 48 NSWLR 340). The High Court was concerned to emphasise that the weight of the narcotic imported was not the most important factor to be considered when fixing a sentence. The Court was apparently influenced by the consideration that an offender who is caught up in the illegal activity may not, in many cases, be aware of the amount of drug proposed to be imported. However, the size of the importation is a relevant factor to which the sentencing court must have regard. It will have increased significance when the offender is aware of the amount of drugs to be imported. The majority said in Wong at 607-608:“In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation R v Olbrich (1999) 199 CLR 270, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles. What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act, which should be taken into account in formulating applicable principles.”