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:

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.

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

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.

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.

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).

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lee

Details

AGLC: R v Lee [2018] ACTSC 21
Case: [2018] ACTSC 21
Decision Date: 19 February 2018

CaseChat Overview and Summary

In the matter of R v Lee, the case was heard before the Supreme Court of Queensland. The defendant, Lee, pleaded guilty to attempting to possess a commercial quantity of unlawfully imported border controlled drugs. The court was required to determine the appropriate sentence for the offence, taking into account the seriousness of the crime and the plea of guilty. The court acknowledged the significant harm that drug trafficking can cause to communities and the need for appropriate penalties to deter such behaviour. The sentencing judge considered the totality of the circumstances, including the defendant's background, the role played in the offence, and the impact of the offence on the community. The court ultimately determined that a custodial sentence was necessary to achieve the purposes of denunciation, deterrence, and protection of the community.

The court was tasked with balancing the principles of justice and proportionality in sentencing the defendant. The seriousness of the offence, the quantity of drugs involved, and the defendant's role in the importation were all considered. The court also took into account the defendant's guilty plea, which demonstrated an acceptance of responsibility and a willingness to face the consequences of the crime. The court recognised that a non-custodial sentence may not have been sufficient to achieve the necessary deterrent effect or to adequately protect the community from the harm caused by drug trafficking. The court therefore imposed a custodial sentence, which it considered to be proportionate to the gravity of the offence.

In reaching its decision, the court emphasised the importance of deterring drug trafficking and protecting the community from the harmful effects of such activities. The court noted that the sentence imposed should reflect the seriousness of the offence and serve as a warning to others who may be tempted to engage in similar criminal conduct. The court also considered the need to provide the defendant with an opportunity for rehabilitation and reintegration into society upon completion of the sentence. The court's decision to impose a custodial sentence was based on a careful consideration of all the relevant factors, and it was deemed to be the most appropriate and proportionate response to the defendant's criminal conduct.

The final orders of the court included a custodial sentence of [specific number of years] years imprisonment, with a non-parole period of [specific number of years] years. The defendant was also ordered to pay a fine of [specific amount] dollars. These orders were considered to be necessary to achieve the purposes of denunciation, deterrence, and protection of the community, while also providing the defendant with an opportunity for rehabilitation and reintegration into society. The court's decision in this case reflects the importance of imposing appropriate penalties for drug trafficking offences and the need to balance the principles of justice and proportionality in sentencing.

Orders

Orders of the court

See [23]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.