R v Lou (No 2)

[2017] ACTSC 266

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Lou (No 2)

Citation:

[2017] ACTSC 266

Hearing Date:

14 September 2017

DecisionDate:

14 September 2017

Before:

Elkaim J

Decision:

See paragraph [39]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – money laundering – traffic in a controlled drug other than cannabis – plea of guilty.

Legislation Cited:

Crimes Act 1900 (ACT) s 114B

Criminal Code 2002 (ACT) s 603(7)

Cases Cited:

R v Ellis (1986) 6 NSWLR 603

R v Hoang [2015] ACTSC 138
R v  Hodge [2015] ACTSC 214
R v Lou [2017] ACTSC 127
R v Lou (ACTSC, 8 December 2011, Higgins CJ, unreported)
R v Phay [2015] ACTSC 238
R v Truong [2015] ACTSC 244

R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581

Parties:

The Queen (Crown)

Daniel Dar-Louen Lou (Offender)

Representation:

Counsel

Ms K McCann (Crown)

Ms K Musgrove (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Alliance Legal Services (Offender)

File Numbers:

SCC 68 of 2016 and SCC 70 of 2016

ELKAIM J:

1. On 26 May 2017, the offender pleaded guilty to seven counts in an indictment dated 1 June 2016.

1. On 8 October 2015, the offender presented himself to the City Police Station carrying a backpack containing $84,190 in cash. He told police that he was a drug dealer and needed to be arrested.

1. The offender made admissions in a recorded interview. His pleas of guilty and his voluntary surrender and assistance to the police entitle him to a discount. They also indicate his acceptance and recognition of his wrongdoing.

1. Ms Musgrove, on behalf of the offender, suggested a discount of 40%, relying on R v Hodge [2015] ACTSC 214 and R v Ellis (1986) 6 NSWLR 603. I do agree a substantial discount is appropriate but, having regard to the words of Burns J, I do not think too much emphasis should be given to the offender’s voluntary assistance. Burns J said, when dealing with a pre-trial application in this matter, at paragraph [25]:

On the evidence I am satisfied that the applicant was suffering from a drug-induced psychosis at the time that he attended the City Police Station on 8 October 2015. The effect of that psychosis was that he felt compelled to make the disclosures to police which he then made. It is probable that he did not have the capacity to choose to do otherwise.

1. Ms Musgrove also suggested I apply the principles set out in R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581 (‘Verdins’). She submitted that the offender fell within the bounds of these principles so that general deterrence was not as great a factor as it might otherwise have been. I disagree. I do not think this offender’s moral culpability was overborne by his mental illness. I will, however, take his mental illness into account in…