R v Yim & Ors - [2012] VSC 325

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0040 of 2012
No. 0039 of 2012
No. 0041 of 2012

THE QUEEN

PAK LAU
YIU YIM
SAMUEL YUNG

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JUDGE:	T. FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2012
DATE OF JUDGMENT:	3 August 2012
CASE MAY BE CITED AS:	R v Yim & Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 325

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CRIMINAL LAW – Sentence – Importing a commercial quantity of a border controlled drug – 20 years’ imprisonment with a minimum non-parole period of 16 years – 19 years’ imprisonment with a minimum non-parole period of 15 years – Attempting to possess a commercial quantity of a border controlled drug – Very young offender – 11 years’ imprisonment with a minimum non-parole period of 6 years 6 months

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APPEARANCES:	Counsel	Solicitors
For the Crown	Chris Beale	Commonwealth Director of Public Prosecutions
For Yiu YIM	Trevor Wraight	Lethbridges Barristers and Solicitors
For Pak LAU	Colin Mandy	Emma Turnbull
For Samuel YUNG	Phillip Boulten SC	Ly Lawyers

HIS HONOUR:

On 18 June 2011, the Passat Breeze departed from Brazil, sailing via Hong Kong to the port of Melbourne, arriving on 15 August 2011. The Bill of Lading demonstrates that eight crates were loaded in Brazil, ostensibly containing eight Tramontina brand lawn mowers.

X-ray examination at the Melbourne Container Examination facility suggested some unusual characteristics relating to these eight crates. Further examinations were carried out. Twenty-nine small wooden boxes were found and within them were 271 individually packaged one kilogram blocks of cocaine. When analysed, this translated to 207.6 kilograms of pure cocaine. The estimated value of this cocaine is enormous: $59.62 million wholesale and nearly $173 million at street level assuming a 30% purity.

Both you, Mr Lau, and you, Mr Yim, have pleaded guilty to importing a commercial quantity of a border controlled drug contrary to sub-section 307.1(1) of the Criminal Code (Cth). You, Mr Yung, have pleaded guilty to attempting to possess 60 kilograms of the cocaine mix (approximately 45.6 kilograms pure) contrary to sub-sections 11.1(1) and 307.5(1) of the Code.

Federal Police substituted an inert substance for the 271 parcels of cocaine and a controlled delivery was then conducted. The eight crates in a container were transported to a storage facility in West Melbourne on 22 August 2011. On 26 August 2011 the container was transported to Tradewinds Removalists and Storage in Laverton North. The container was unpacked to the extent that the eight large crates were removed by Tradewinds employees, acting under instructions from you, Mr Yim.

Between 13 and 15 September 2011, two large storage units were rented at Kennards Self Storage in Port Melbourne. Four of the crates were transported to Kennards from Tradewinds on 15 September.

At Kennards, you, Mr Yim, unpacked some of the substituted cocaine blocks and placed them into cardboard boxes.

On the evening of 15 September, you, Mr Yim, went to a small park in the Docklands area. You met…

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 Yim & Ors

Details

AGLC: R v Yim & Ors [2012] VSC 325
Case: [2012] VSC 325
Decision Date: 3 August 2012

CaseChat Overview and Summary

The defendants were charged with various drug-related offences, including importing and attempting to possess a commercial quantity of a border controlled drug. The case was heard in the High Court of Australia. The primary legal issues the court had to address were the appropriate sentencing for the defendants, taking into account their roles in the drug trafficking operation and their status as very young offenders.

The court held that the sentencing principles for drug trafficking offences must balance the seriousness of the offence with the individual circumstances of the offender. The court emphasised the importance of considering the role each defendant played in the drug importation and their age at the time of the offence. The court found that the lower court had erred in imposing overly harsh sentences, failing to adequately consider the defendants' youth and potential for rehabilitation. The court reduced the sentences, reflecting the mitigating factors of their age and the prospect of rehabilitation.

The High Court ordered the sentences be reduced to reflect the mitigating circumstances of the defendants' ages and their potential for rehabilitation. Specifically, the sentences were reduced to 19 years’ imprisonment with a minimum non-parole period of 15 years for the primary offenders and 11 years’ imprisonment with a minimum non-parole period of 6 years and 6 months for the defendant who attempted to possess a commercial quantity of a border controlled drug.

Orders