Yih WEN Lim v The Queen

[2017] VSCA 246

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 109

YIH WEN LIM	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2017
DATE OF JUDGMENT:	8 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 246
JUDGMENT APPEALED FROM:	[2017] VCC 321 (Judge Lawson)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Importing commercial quantity of border controlled drug – Possessing marketable quantity of border controlled drug – Sentence of 10 years’ imprisonment for importation and 5 years for possession, possession sentence to commence 3 years before expiration of importation sentence (TES 12 years) – Manifest excess – Double punishment – Whether drugs subject of possession charge were also subject of importation charge – Drugs subject of possession charge not subject of importation charge – No double punishment – Sentence not manifestly excessive – Application for leave to appeal refused – Criminal Code 1995 (Cth), ss 307.1, 307.6 and 311.4.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Dickinson QC	Gregory J Goold Solicitors
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

BEACH JA:

1. On 17 March 2017, the applicant pleaded guilty in the County Court to one charge of importing a commercial quantity of a border controlled drug and one charge of possessing a marketable quantity of a border controlled drug.  Following a plea hearing, on 30 March 2017, the applicant was sentenced as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation/ Concurrency
1	Import a commercial quantity of a border controlled drug contrary to s 307.1(1) Criminal Code (Cth) by virtue of s 311.4 of the Criminal Code1995 (Cth)	Life	10 years	Base (commencement 30 March 2017)
2	Possess a marketable quantity of a border controlled drug contrary to s 307.6(1) Criminal Code 1995 (Cth)	25 years	5 years	2 years (commences 3 years prior to the expiration of the sentence on charge 1: 30 March 2024)
Total Effective Sentence:		12 years’ imprisonment
Non-Parole Period:		9 years’ imprisonment
Pre-sentence detention declared:		237 days
6AAA Statement:   15 years’ imprisonment with a non-parole period of 12 years’ imprisonment.

1. The applicant seeks leave to appeal against his sentence on the following grounds:

1.The sentencing judge erred in that she imposed a sentence on count 2 that is manifestly excessive.

2.The sentencing judge erred in that she imposed insufficient concurrency on the sentence imposed on count 2 with the sentence imposed on count 1.

3.The sentencing judge erred in that she failed to order complete concurrency of the sentence imposed on count 2 with the sentence imposed on count 1 given that the drug the subject of count 2 was also the subject of part thereof of count 1.  The applicant has been punished twice for the same act.

Circumstances of the offending

1. On 25 May 2016, Australian Federal Police members executed a search warrant at the applicant’s residential address where he lived with his wife and child.  During the search, AFP members located a plastic bag in a cupboard underneath the laundry sink. 

1. Inside the plastic bag were two smaller clip seal bags, each containing a white crystallised substance. One of the clip seal bags contained 234.2 grams of methamphetamine (small crystals). The other contained 19.4 grams of methamphetamine (large crystals). The applicant’s fingerprints were found to be on the outside of the outer bag. Later drug analysis disclosed that the small crystals had a purity of 27.4 per cent, whereas the large crystals had a purity of 80.3 per cent. The total amount of pure methamphetamine, including both the large and small crystals, was 79.6 grams. A marketable quantity of methamphetamine is two grams. These events constituted charge 2, possessing a marketable quantity of a border controlled drug (methamphetamine) contrary to s 307.6(1) of the Criminal Code 1995 (Cth).

1. Between 25 April 2016 and 5 August 2016, the applicant was a member of a drug syndicate involved in the importation of border controlled drugs into Australia.  The applicant’s role in the syndicate included obtaining and providing addresses where consignments of border controlled drugs were to be sent, as well as tracking and overseeing the collection of the consignments by other syndicate members when they were delivered to the relevant address.  Charge 1 involved five importations as follows:

(a)on 25 April 2016, 219 grams of methamphetamine with a purity of 80.3 per cent (175.8 grams pure methamphetamine);

(b)on 15 May 2016, 446.2 grams of methamphetamine with a purity of 80.3 per cent (358.2 grams of pure methamphetamine);

(c)on 24 May 2016, 511 grams of methamphetamine with a purity of 80.3 per cent (408 grams of pure methamphetamine);

(d)on 28 June 2016, 444 grams of methamphetamine with a purity of 80.3 per cent (356 grams of pure methamphetamine);  and

(e)on 4 August 2016, 350 grams of heroin with a purity of 66 per cent (233 grams of pure heroin).

1. The commercial quantity for methamphetamine is 750 grams and the commercial quantity for heroin is 1.5 kilograms. Charge 1 involved the importation of a commercial quantity of two different border controlled drugs (methamphetamine and heroin) in reliance upon s 311.4 of the Criminal Code. Section 311.4 of the Criminal Code, in the circumstances set out therein, permits the combination of different border controlled drugs in the one charge under s 307.1. The importations of methamphetamine that formed part of charge 1 totalled 1298 grams, being 1.73 times the commercial quantity for methamphetamine. The heroin importation that formed the remaining part of charge 1 was 15.8 per cent of the commercial quantity for heroin.

Applicant’s background

1. The applicant was born on 27 January 1992 in Malaysia.  He was 24 years of age at the time of his offending, and 25 years of age at the time of sentencing. 

1. The applicant was educated to the equivalent of year 9.  He worked in the timber industry in Malaysia up until he travelled to Australia in late 2015.  He is married with one small child.  He arrived in Australia with his wife and daughter for the purpose of visiting Australia, and so that his wife could undertake studies. 

1. The applicant had no prior convictions, and the judge accepted that he was a person of prior good character.[1]

   [1]DPP v Lim [2017] VCC 321 [93] (‘Reasons’).

Sentencing reasons

1. The judge commenced her reasons for sentence with a description of the applicant’s offending.[2]  The judge then turned to the gravity of the applicant’s offending, noting that the applicant was ‘no mere courier’.[3]  The judge described the applicant as being ‘the key intermediary, that is, the major player here in Victoria involved in these importations’.[4]  As a result, the judge concluded that the applicant’s moral culpability was high.[5]  Moreover, the judge said that, having regard to the nature of the importations and the quantity of drugs imported, she considered the importations to be ‘serious examples of this serious offence’.[6]

   [2]Reasons [2]–[50].

   [3]Ibid [53].

   [4]Ibid.

   [5]Before coming to that conclusion, the judge (in reliance upon a document tendered by the prosecutor on the plea (not counsel who appeared for the Crown in this Court) noted, at Reasons [52], that the methamphetamine the subject of charge 2 was 5.3 per cent of the commercial quantity. In fact, the commercial quantity for methamphetamine being 750 grams, the methamphetamine the subject of charge 2 was 10.6 per cent.

   [6]Reasons [54].

1. The judge referred to the applicant’s motivation for his offending as being ‘the prospect of making fast and quick money’ so as to provide financial support to his family.[7]

   [7]Ibid [79].

1. As to other relevant sentencing matters, the judge:

(a)accepted that the likelihood of the applicant’s deportation would result in imprisonment being more burdensome for the applicant than it might otherwise be;[8]

(b)noted that the applicant’s plea of guilty was entered at the earliest stage at committal mention, and that there was real utility in the applicant’s plea;[9]

(c)accepted that, by reason of the applicant’s personal circumstances, imprisonment would be ‘an isolating experience’ for the applicant, and took that matter into account;[10]

(d)accepted that the applicant was of a relatively young age and that the principles that applied in respect of youth as enunciated in R v Mills[11] applied;[12]  and

(e)took into account the applicant’s prior good character as relevant to his prospects for rehabilitation.[13]

[8]Ibid [78].

[9]Ibid [84].

[10]Ibid [89].

[11][1998] 4 VR 235.

[12]Reasons [92]

[13]Ibid [93].

1. Finally, the judge concluded that because of the serious nature of the applicant’s offending, the difficulty of detecting importation offences and the great social harm that such drugs are known to cause, a term of imprisonment was the only appropriate punishment, but that there would be ‘some cumulation between the two charges to reflect the different level of criminality involved’.[14]

   [14]Ibid [94].

The applicant’s contentions

1. The applicant advanced the one argument in respect of his three proposed grounds of appeal.  The argument was that the drugs the subject of charge 2 were those of the importing syndicate involved in the charge 1 importations and that, as such, the drugs the subject of charge 2 were also the drugs the subject of charge 1.  In support of this argument, the applicant contended that the judge made a finding of fact to this effect in her reasons for sentence, when she said that she was satisfied that, in respect of the possession charge, the drugs found at the applicant’s residence were being held by the applicant ‘in safe custody on behalf of the syndicate’.[15]

   [15]Ibid [58].

1. The applicant then sought to bolster his contention that the judge had made a relevant finding of fact in his favour by reference to a statement made by the judge during the course of the plea, and which was not repeated in her Honour’s sentencing reasons, that there was ‘evidence that [the applicant] was involved in these consignments and was possessed of some drugs that were the subject of the consignment’.

1. Having contended that the drugs the subject of charge 2 were also the subject of charge 1, the applicant submitted that he had been punished twice for the same act.  In support of that submission, the applicant contended that the importation (the subject of charge 1) necessarily involved taking possession of the substance imported (charge 2).

1. The applicant then referred to authority such as Pearce v The Queen[16] for the proposition that, when sentencing an offender for two or more offences, it is wrong to punish the offender twice for elements that are common to the relevant offences.  As the applicant put it, ‘application of the relevant principles required that the sentence on charge 2 be concurrent or at least substantially concurrent with the sentence imposed on charge 1’. 

   [16](1998) 194 CLR 610.

Analysis

1. The applicant’s argument is without substance.  There is no evidence that supports the proposition that all of the drugs the subject of charge 2 were also part of the offending that constituted charge 1.  Moreover, there is no basis for the contention that the judge made a finding that the drugs the subject of charge 2 were wholly encompassed within the drugs the subject of charge 1.  Put simply, her Honour never made any such statement, and there was no evidence which would have supported such a finding.

1. The drugs the subject of charge 2 had different characteristics, comprising a bag of small crystals and a bag of large crystals.  While, on the plea hearing, the Crown accepted that the large crystals (79.6 grams with a purity of 80.3 per cent) were ‘visually similar’ to those contained within the consignment that was delivered on 24 May 2016, and depicted in a video of a consignment that was deconstructed at the applicant’s home, no such concession was made in respect of the small crystals (234.2 grams with a purity of 27.4 per cent).  Moreover, while it might be accepted that the 80.3 per cent purity figure in respect of the large crystals that formed part of charge 2, equalling as it did the purity figure in respect of each of the charge 1  methamphetamine importations, might suggest that the drugs came from a common source, even if it was accepted that the drugs were the same, no such proposition could be advanced in respect of the small crystals, that formed the bulk of the drugs involved in charge 2, with their very different level of purity.

1. What I have said so far is sufficient to dispose of the applicant’s proposed grounds of appeal.  That said, it should be noted that counsel who appeared for the applicant on the plea[17] did not contend that the drugs the subject of charge 2 were all part of the same drugs that were involved in charge 1.  As to the issue of the drugs ‘being the same’, all that was submitted to the sentencing judge was that the possession ‘[arose] out of the same circumstances on 25 May [sic, 24 May]’.  But, as I have said, even if that submission could be made out with respect to the large crystals, there was no basis for such a submission in respect of the small crystals with their different level of purity (27.4 per cent) from the methamphetamine importations the subject of charge 1.

   [17]Not counsel who appeared in this Court.

1. In respect of charge 2, putting the large crystals to one side, there were 234.2 grams of small crystals with a purity of 27.4 per cent, which was the equivalent of 64.17 grams of pure methamphetamine.  The amount of pure methamphetamine in the small crystals was, without any reference to the large crystals (with the same purity as the methamphetamine the subject of charge 1), 32 times the marketable quantity for methamphetamine.  Even if one accepted that the sentence on charge 2 and the order for cumulation should not have imposed any additional time to serve in respect of the large crystals, the sentence on charge 2 and order for cumulation were each well open, in any event, having regard to the larger quantity of pure methamphetamine in the small crystals (32 times the marketable quantity).

1. The applicant’s complaints of manifest excess in respect of charge 2, double punishment and lack of concurrency are not reasonably arguable.  There is no basis for contending that the judge erred in the way contended for by the applicant.  Moreover, looking at the case more generally, in all the circumstances, the total effective sentence imposed by the judge was entirely appropriate.[18]  Even if error could be established, given the seriousness of the applicant’s offending and given the position the applicant occupied in the syndicate that imported the drugs, and giving appropriate weight to the mitigatory factors relied upon by the applicant, there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence imposed by the judge.  This provides a further reason for the refusal of the application for leave to appeal.[19]

   [18]Indeed, in his written case, the applicant accepted (correctly in my view) that the sentence of five years’ imprisonment on charge 2, absent the issue of double punishment, ‘might otherwise have been appropriate’.

   [19]See s 280(1)(b) of the Criminal Procedure Act 2009.

Conclusion

1. The application for leave to appeal against sentence must be refused.

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