R v Lee
[2015] ACTSC 415
•15 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lee |
Citation: | [2015] ACTSC 415 |
Hearing Date(s): | 11 November 2015 |
DecisionDate: | 15 December 2015 |
Before: | Burns J |
Decision: | See [19]-[20] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug offences – trafficking in a trafficable quantity of cannabis – co-offenders – no criminal history – plea of guilty – rehabilitation. |
Legislation Cited: | Criminal Code 2002 (ACT) s 603(5) |
Cases Cited: | R v Quzag [2015] ACTSC 52 |
Parties: | The Queen (Crown) Huy Huu Lee (Offender) |
Representation: | Counsel Mr S Drumgold (Crown) Mr S Gill (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number(s): | SCC 272 of 2014 |
BURNS J:
Background
Huy Huu Lee, you appear before me today for sentence with respect to one count contrary to s 603(5) of the Criminal Code 2002 (ACT), alleging that between 16 December 2012 and 16 December 2013 you carried on the business of trafficking in a trafficable quantity of cannabis. On 21 September 2015, you were arraigned on an indictment containing three counts, the second of which is the count which is before me for sentence today. You entered pleas of not guilty to each count and the matter proceeded as a trial by judge alone.
On 22 September this year, the second day of your trial, you entered a plea of guilty to the second count on the indictment and the Crown indicated that it would not proceed any further with respect to the remaining two counts. Your plea was expressed to be on the basis that you accepted that you had supplied one pound deals of cannabis to Francis Robertson on six occasions between February 2013 and April 2013 and a further deal of six pounds of cannabis to Francis Robertson on 15 December 2013. The quantity of cannabis supplied by you to Francis Robertson was 12 pounds or approximately 5.5 kilograms.
At the time of this offence a trafficable quantity of cannabis was 300 grams and a commercial quantity was 25 kilograms. Since April 2014, whilst the trafficable quantity remains at 300 grams, the commercial quantity has been raised to 30 kilograms. The maximum penalty for this offence is a fine of 1000 penalty units, imprisonment for 10 years or both.
Consideration
No criminal history was tendered by the Crown on the sentence hearing and I proceed on the basis that you have no criminal history. A Pre Sentence Report was tendered. I note that you are 45 years old and that you were born and raised in Vietnam. You apparently had to assist your family financially at an early age, which meant that you had to leave school at an early age, and you held numerous positions in vegetable gardens, rice fields, cooking and cleaning. You left Vietnam at the age of 17 by boat, arriving in Hong Kong where you were placed in a refugee camp for 18 months. You spent a further six months working in Hong Kong before emigrating to Australia in 1989.
You reported a close relationship with your mother until her death in 2013 and you advised the author of the Report that your mother's death caused you grief and reminded you of your brother's death as a result of a heroin overdose which was forcibly administered to him in 1996. You apparently do not have a close relationship with your father who has been living in Melbourne since your mother's death. You reported two significant relationships. One ended in divorce in 1998 and produced two daughters. Your current relationship of nine years has produced three children and you reported enjoying a supportive relationship with your partner.
You told the author of the Report that you have been continuously employed on a casual basis in the hospitality industry since 1993. You reported regular consumption of alcohol over the past 12 months, although you do not view that as problematic. You advised that you first smoked cannabis in 2012, quickly progressing to smoking between one and two joints a night. Since your court appearance in September this year you claim that you have decreased your use to three nights a week. You reported that your physical health is good but that you suffer from emotional distress and grief after the loss of your brother in 1996 and your mother in 2013.
You told the author of the Report that you accepted responsibility for your actions but you claimed not to understand the seriousness of your actions until you were arrested. You said that during the commission of the current events your mind was preoccupied with thoughts of your deceased mother and brother. You acknowledged the negative impact your actions could have on your family. The author of the Report assessed you as at medium to low risk of reoffending and that your risk of reoffending could be enhanced by participation in alcohol and drug prevention programs and grief counselling. You were assessed suitable for community service and periodic detention.
At the sentence hearing Marion Le gave evidence on your behalf. Your father is the cousin of her husband. She said that her husband resided in South Vietnam during the Vietnam War but that you and your father resided in the north. She said that you grew up in the communist regime and that your family were persecuted for prior relationships with the French and also her husband's connection with the south. In about 1986 she sponsored your older brother and your sister to come to Australia where they resided with her and in 1989 she sponsored you to come to Australia. Your parents and youngest brother followed soon thereafter.
She described the camps that you lived in in Hong Kong as "bad" with deprivation being common. It was especially bad for people from North Vietnam. She testified that your brother was murdered and that they never found the person who killed him. She said that all of your family were devastated by this incident. She and you went to the morgue to identify the body of your brother. She testified that your mother died in 2013 and that she had suffered from Alzheimer's disease for many years prior to her death. You were devastated at your mother's death, albeit that she died in Vietnam. The period after your mother died you stopped visiting Ms Le because you did not want to talk to her about your mother.
The offence to which you have pleaded guilty is a serious offence, as demonstrated by the maximum penalty prescribed by the legislature. The quantity of cannabis which you supplied was significant. The total monetary value of the sales of cannabis to Francis Robertson was $36,000. The Crown referred me to a number of the decisions of the New South Wales Court of Criminal Appeal to the effect that when sentencing offenders for drug trafficking, sentences involving a substantial general deterrence element are to be imposed and it is only in exceptional circumstances that a non-custodial order will be appropriate.
It was accepted by your counsel that a custodial sentence is appropriate for this offence but, he submitted, that something less than an immediate term of full time imprisonment may be appropriate. On the other hand, the Crown submitted that an immediate term of full time imprisonment was warranted. It was accepted by the Crown that you were sourcing the cannabis from a third party before selling it to Francis Robertson who then on-sold it. There is no suggestion that you were the producer of the cannabis. The prosecution also conceded that your plea could be considered to be a relatively early plea which had utilitarian value.
I am satisfied that you anticipated making some profit from the sale of cannabis to Francis Robertson. In my opinion, taking into account the reported extent of your personal use of cannabis and the quantity supplied to Francis Robertson, it cannot be said that your primary purpose in engaging in the supply of cannabis was to subsidise your personal use.
On 19 December 2014, I sentenced Francis Robertson for trafficking in cannabis, reflecting his involvement in these transactions. I accepted that Francis Robertson purchased cannabis in such large quantities from you in order to use some of it and sell the remainder with a view to purchasing more cannabis. On the evidence before me I accepted that he had not anticipated making a significant profit. [Redacted for legal reasons.]
I sentenced Mr Robertson to six months’ imprisonment, wholly suspended, with a good behaviour order for a period of 18 months. I indicated that a starting point was one of 14 months' imprisonment but I reduced that by three months in order to reflect his plea of guilty and [redacted for legal reasons].
In the present proceedings my attention was drawn to the sentence handed down in R v Quzag [2015] ACTSC 52 which was an offence of cultivating a trafficable quantity of cannabis plants with the intention of selling any of them. That offence also carries a maximum penalty of 10 years' imprisonment. The offender was sentenced to 28 months’ imprisonment of which six months was to be served by way of full time imprisonment with the following eight months to be served by way of periodic detention and the balance being suspended. On appeal that sentence was overturned and a sentence of 22 months' imprisonment with eight months to be served by way of full time imprisonment and the balance suspended was substituted. A number of other sentences for cultivating cannabis were referred to by the primary judge in sentencing Mr Quzag.
Frankly, I do not find those sentences particularly helpful in sentencing for the current offence. In my opinion, the sentence which I imposed on Francis Robertson is the most useful authority available to assist in the present sentencing exercise.
In my opinion, there is little by way of difference between your culpability and that of Mr Robertson. It may be suggested, if anything, that you were further up the supply chain than Mr Robertson but in the particular circumstances of this offence I do not consider that to be particularly significant. I consider your culpability to be slightly greater than that of Mr Robertson on the basis that I am satisfied that you had a slightly greater profit motive than he did.
My starting point is a 16 month sentence of imprisonment which I will reduce to 13 months to reflect your plea of guilty. I accept that you have good prospects for rehabilitation and that your plea of guilty reflected a degree of remorse and also had utilitarian value. Whilst the objective seriousness of this offence dictates that a term of imprisonment must be imposed, your lack of criminal history, your age and your prospects of rehabilitation convince me that a sentence to be served partly by way of periodic detention and partly by way of suspended sentence will be adequate to address the requirements of sentencing in this matter.
Sentence
I record a conviction and you will be sentenced to 13 months’ imprisonment commencing today and expiring on 14 January 2017. I order that a period of six months of that sentence commencing today and expiring on 14 June 2016 is served by way of periodic detention and you will be required to report on the first occasion to the Symonston Periodic Detention Centre at 7 pm this Friday, 18 December 2015. The balance of the sentence will be suspended.
There will be a Good Behaviour Order for a period of 20 months commencing today, requiring you to accept the supervision of ACT Corrective Services for that period of 20 months or such less a period as deemed appropriate by your supervising officer, with a further condition that you are to participate in alcohol and drug prevention programs and grief and loss counselling as directed by your supervising officer. You are also to report to ACT Adult Corrections within 48 hours.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 27 January 2016 |