R v Lee

[2018] ACTSC 21

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Lee

Citation:

[2018] ACTSC 21

Hearing Date:

19 February 2018

DecisionDate:

19 February 2018

Before:

Elkaim J

Decision:

See [23]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt to possess commercial quantities of unlawfully imported border controlled drugs – guilty plea

Legislation Cited:

Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.5(1)

Crimes Act 1914 (Cth) s 17A

Cases Cited:

Director of Public Prosecutions (DPP) v Thomas [2016] VSCA 237; 315 FLR 31

R v Harrington [2016] ACTCA 10; 11 ACTLR 215
SO v The Queen [2014] WASCA 169

Xiao v The Queen [2018] NSWCCA 4

Parties:

The Queen (Crown)

Yeung Yuen Lee (Offender)

Representation:

Counsel

Mr T Ellison (Crown)

Mr J Sabharwal (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 1 of 2017

ELKAIM J:

1. On 8 November 2017, the offender pleaded guilty to an offence of attempting to possess a commercial quantity of a border controlled drug, contrary to sections 11.1(1) and 307.5(1) of the Criminal Code 1995 (Cth). The substance was methamphetamine.

1. The maximum penalty for this offence is imprisonment for life and/or a fine of $1,350,000.

1. The offender was born in China in 1991. He was raised in Hong Kong and had a stable upbringing. He has good relationships with his parents and sister. The offender completed nine years of education and worked as an assistant chef in Hong Kong. He has also completed a six month training course in the finance industry.

1. In September 2015, the offender arrived in Australia on a temporary working holiday visa. He worked for some time as a kitchen hand but was unemployed at the time of his arrest.

1. The offender has a criminal record in Hong Kong. Notably, it includes two offences of trafficking in a dangerous drug. He received terms of imprisonment of three and four years respectively. I have read the decision of Browne J in the District Court of Hong Kong. His Honour made it plain that he was doing his best to provide the best chance of rehabilitation to the offender. Unfortunately, the offender did not take advantage of the opportunity. I do, however, note that the offender has attended a number of courses while in custody (Exhibit 1).

1. According to the Statement of Agreed Facts, a suspicious package was intercepted in Hong Kong. The declared contents were eight t-shirts and four trousers. The package contained eight vacuum-sealed bags secreted within the items of clothing. The bags contained methamphetamine hydrochloride (known as “ice”). A commercial quantity of ice is 0.75 kg and over.

1. The package was reconstructed and delivered to a postal address in Canberra. On 15 January 2016, the offender attended the GPO Post Office to collect the package. The Australian Federal Police were informed and the offender was arrested. The offender initially stated that he had been told that he was collecting a coffee machine.

1. The maximum penalty for this offence indicates how seriously offences of this type must be taken.

1. Section 17A of the Crimes Act 1914 (Cth) states that a person should not be sentenced to a term of imprisonment for a federal offence unless the court is satisfied that no other sentence is appropriate in the circumstances of the particular case.

1. It is necessary to consider the offender’s role in the offence. The Crown has noted that, although the offending was not sophisticated, there was a deliberate attempt to conceal the packages. The offender flew from Perth to Canberra to obtain the package. The Crown has pointed out that, although the offender might be viewed as an intermediate participant in the endeavour, analogous to a courier, this does not necessarily call for leniency. The importation of illicit drugs requires the participation of persons at a number of levels.

1. The courts continually deal with people who commit crimes while using ice. It is a pernicious drug that has a serious and negative impact upon both the user and the broader community. Its use often leads to serious addiction and all the mental health conditions that flow on from that.

1. There must be a real element of general and specific deterrence in any sentence imposed upon this offender.

1. The offender’s admission that he carried out the importation because of his financial problems suggests that the offence was carried out for financial gain, although there is no evidence of what the actual gain may have been.

1. I was informed that the wholesale value of the quantity of the drug sought to be imported was roughly between $400,000 and $500,000 and the street value was roughly between $1,400,000 and $1,800,000.

1. In my view, taking into account the amount of ice involved, the offence can be characterised as above medium objective severity.

1. The offender’s plea of guilty is in his favour. There is some conflict between a decision of this Court (R v Harrington [2016] ACTCA 10; 11 ACTLR 215 (‘Harrington’)) and decisions in Victoria and New South Wales (Director of Public Prosecutions (DPP) v Thomas [2016] VSCA 237; 315 FLR 31 and Xiao v The Queen [2018] NSWCCA 4 respectively). In Harrington, it was said that utilitarian value should not be taken into account in arriving at a discount for a plea of guilty for a Commonwealth offence. The other two cases are to the contrary. I am bound by Harrington, to the extent that I do not think I can apply a discount in excess of 15%. But for Harrington, I would have applied a discount of 20%.

1. In reaching the discount of 15%, I have taken into account the offender’s remorse, acceptance of responsibility and willingness to facilitate the course of justice.

1. I also take into account that the offender is a foreign national with little or no support in Australia. However, as the comparable cases highlight, this is not particularly unusual. The offender made the choice to commit a serious offence while in Australia on a visa. It may even be that the offender came to Australia for the purpose of committing the offence, but I do not have a concluded view on the matter.

1. It is difficult to assess the offender’s prospects of rehabilitation. Previous attempts at rehabilitation in Hong Kong were apparently unsuccessful. I accept that the offender has expressed remorse for his involvement, contrary to what is stated in the Pre-Sentence Report. He is a relatively young man and one would hope that he will have the capacity to cease the criminal conduct that he has engaged in for some years. 

1. A prison sentence is inevitable. No suggestion was made to the contrary. The offender has been in custody since his arrest on 15 January 2016, a period of two years, one month and five days. The sentence I impose will be backdated to 15 January 2016. The Crown has provided me with a list of similar cases although of course the similarities are very broad and each case must be decided according to its individual facts.

1. The most comparable case is SO v The Queen [2014] WASCA 169. In that case, the appellant had a broadly similar background and carried out a broadly similar offence, although the quantity of drug involved was smaller. He received a sentence of 7 years and 6 months’ imprisonment, following a plea of guilty, with a non-parole period of 4 years and 8 months. An appeal on the basis of manifest excess was unsuccessful. Hall J noted that at [35]:

The sentence was well within the range of sentences that had been customarily imposed for offences of this type.

1. I think the term of imprisonment should be eight years which, after a deduction of 15%, is reduced to six years, nine months and 18 days which I will round down to six years and nine months. I will set a non-parole period of four years and nine months. I note that the likelihood of deportation has not affected my assessment of the appropriate sentence and non-parole period.

1. I make the following orders:

(a)In respect count 1, attempt to possess unlawfully imported border controlled drugs (CC 2016/2398), the offender is sentenced to 6 years and 9 months’ imprisonment commencing on 15 January 2016 and ending on 14 October 2022.

(b)A non-parole period of 4 years and 9 months is set to commence on 15 January 2016 and end on 14 October 2020.   

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Elkaim.

Associate:

Date: 19 February 2018.