Lim v The Queen [2013] VSCA 148

2 The applicant sought leave to appeal against the sentence imposed, as set out in the table, by his Honour Judge Parsons on 29 November 2012.

45 months' imprisonment with a non-parole period of 33 months

Other orders: Compensation orders in the sum of $11,865.76 to be paid as stipulated in the Record of Orders.

3 On 5 June, the Court announced that, for reasons to be published, it would grant the applicant leave to appeal against sentence, but would dismiss the appeal. These are my reasons for joining in that disposition.

4 The judge summarised the broad circumstances of the offending as follows. I include references made by his Honour respecting the applicant's co-offenders Kenny Thee Wei Lim and his wife Sock Hoon Lim:[1]

In September 2008 the Victorian and Australian Federal Police commenced an operation into a syndicate involved the importation, embossing and use of counterfeit credit cards and the recruiting of Malaysian Nationals with respect to those matters.

Blank magnetic strip cards bearing images similar to genuine banks and other financial institutions were imported into Sydney or Melbourne from Malaysia. Blank cards were then embossed with stolen overseas credit card information obtained or purchased from internet sites, with losses incurred by both Australian and overseas financial institutions. To aid the use of counterfeit cards the syndicate would also manufacture false Medicare cards and Victorian and New South Wales drivers licences.

The syndicate members were divided into a hierarchy of four categories, which is explained [later]. The syndicate recruited Malaysian Nationals in Australia as shoppers. The shoppers were paid ten to 12 per cent commission on average on the face value of the goods purchased for their role in the syndicate. Each shopper was supplied with false identification.

In order to effect the fraud, the person who was the head of the particular group and who co-ordinated the use of the cards and distributed the goods which were fraudulently obtained in Australia would contact a driver with a list of specific purchases and the counterfeit credit cards. The cards and identification were often left at post offices or using aliases to distance the person who was known as the controller from the driver and the shoppers. The driver would take the shoppers to and from the stores, providing the shopper with the list of purchases.

With respect to the roles, Mr Kenny Tai (sic) Wei Lim was put forward by the prosecution as a controller and shopper for the syndicate. Sock Hoon Lim... was a shopper for the syndicate....

Kenny Tai (sic) Wei Lim, you have been identified in 87 shopping trips which involved the purchase of Coles gift cards, using counterfeit credit cards or the redemption of Coles gift cards, as described in Schedule A to the Opening, between 31 December 2010 and 12 January 2012, a period of approximately 14 months. That involved 60 different credit cards being used to make the purchases, and...the total loss for the transactions is $67,683.95.

You, sock Hoon Lim, have been indentified in 45 shopping trips which involved the purchase of Coles gift cards, using counterfeit credit cards or the redemption of Coles gift cards, as described in Schedule B, between 15 January 2011 and 12 January 2012, approximately 12 months.

...37 different cards were used to make the purchases and...the total loss for all transactions in which you were involved is $46,422.66.

5 The sentencing judge specified the role of the applicant, when compared to the role of Kenny Thee Wei Lim, this way:[2]

...you, Julie Wei Tai Lim, were described as a controller and shopper for the syndicate in that you both[3] used the false credit cards and you made purchases with the gift cards, but you also liaised with the syndicate head at various times.

With respect to this your counsel took some exception to that characterisation of you as being on the same level as Kenny Lim. It seems to me that concession was implicit in the description of your role, that in fact you were slightly down the ladder from Kenny Lim, and indeed that is the basis on which I proceed.

I understand you arrived in Australia on 19 November 2004 on a three month visa and you became an unlawful non-citizen on 19 February 2005 and you were deported on 27 January 2011. On 8 April 2011 you returned on a short-term visa using a different name and a Malaysian passport. You had changed your name after you left Australia, however that leaving is characterised...and you had failed to advise Australian immigration officials of the fact that you had changed your name.

You had been in a relationship with a controller of the syndicate...Chi Huong Khor, who has since been deported, and he was not charged.

Following [Khor's] detention ...on 9 December 2011, evidence was obtained from a search of your premises...that indicated your involvement in the finance of the syndicate. There was also evidence of telephone conversations which showed you to be in direct contact with a Mr Lee who was the head of the syndicate.

With respect to your involvement in the shopping aspects, you have been identified in incidents which involved the purchase of Coles gift cards using counterfeit credit cards or the redemption of Coles gift cards, as described in Schedule C, between 15 May 2011 and 21 December 2011, a period of approximately eight months. Analysis of the credit card numbers used by you indicated that 65 different credit cards were used to make purchases and ...the total loss for all the transactions in which you were involved is approximately $95,000 and you were involved in 46 separate shopping trips.

Between May 2010 and 29 December 2011 you received deposits into your account of $65,000 and between 23 May 2011 and 25 January 2012 you received deposits into your account of $22,000. Between 17 May 2011 and 10 January 2012 you transferred funds to Malaysia in the sum of $117,634.

Matters in mitigation - the judge's assessment

6 The judge was evidently concerned about what he perceived was 'an apparent inconsistency between documents tendered on [the applicant's] behalf at the sentence hearing.' In that connection, he identified the report of Ms Wendy Northey, psychologist, and the letter and viva voce evidence of Mr Greg Milton, an officer of the Department of Immigration and Citizenship. The latter, who had observed the applicant over a period, had stated that there would be 'a very high risk' of the applicant 'self-harming in gaol'; and that a custodial sentence 'would pose serious risks to this young woman'. Ms Northey, on the other hand, opined that, whilst the applicant would experience significant stress if incarcerated, it was likely that she would be well supported medically and would ultimately adapt to imprisonment far from home and without family support.

7 The judge stated in his sentencing remarks that in light of this perceived inconsistency, he sought a report from Forensicare 'to resolve the question of [the applicant's] psychiatric/psychological status.' In light of matters raised in support of the present application, it is desirable to set out some of what his Honour said with respect the reports of Ms Northey, Dr Godfredson (psychologist, Forensicare), and the report and viva voce evidence of Mr Milton:[4]

With respect to your current psychological status, it was the view of Ms Northey, and her view which she sets out in paragraph 5 of the report: "So in terms of motivation to offend, Ms Lim would have been seeking both financial benefit and emotional security."

I also note in paragraph 26 Ms Northey's opinion that: "At the same time there was a pragmatism to her offending behaviour that is somewhat perplexing."

As I say, in view of the apparent disparity between the views of Mr Milton, whom I inferred at the time had been representing the views of the Australian Government Department of Immigration & Citizenship when he gave his evidence, and the difference between his views and those contained in the psychological report prepared on your behalf, I obtained a Forensicare report, and I think it appropriate to read from that at the moment. I notice that was prepared on 17 December.

Under the heading "Psychiatric History" the following is noted: "Ms Lim reported feeling depressed for several months after her first boyfriend returned to Malaysia and then requested a divorce. Ms Lim also said that following her arrest which coincided with her second partner being deported to Malaysia" (that is Mr Khor) "she experienced a recurrence of depression which she described as much worse. She reported being prescribed antidepressant medication and another medication to assist with sleeping. Ms Lim reported that upon her reception to the prison her medications were ceased but that she had since been recommended Pristiq, an antidepressant. Ms Lim denied ever attempting to harm or kill herself. She reported having had thoughts of suicide during her current incarceration. She said 'If I die it's okay, if not they will lock me up', indicating that she had weighed the pros and cons of attempting to kill herself. Along these lines Ms Lim said 'I want to stop my life but also scared and need a bit heart to do it. I can't stand by life if it is like this.' Ms Lim also asked 'If I try to kill self will judge send me back home?'

...

It was his opinion that you met the diagnostic and statistical manual criteria for adjustment disorder, which describes the experience of anxiety, depressive and traumatic stress syndrome in response to an identifiable stressor. It was his view that you were not experiencing a mental illness at the time of your offending.

It was further his view that your immaturity and naivety, emotional vulnerability, cultural and social isolation, lack of support and limited English, suggest that relative to other prisoners your adjustment to prison life will remain poor. He said, "Along these lines Ms Lim has considered suicide both as a means to escape her current situation and possibly to attain leniency."

Clearly the authorities need to be alert to this matter and I ask the prosecution and the prison authorities to take the report of the Forensicare psychologist to the authorities responsible for your care so that appropriate steps can be taken in your situation. Also, I think it appropriate for the authorities to be provided with the report of Ms Northey ...

8 His Honour's reference to Mr Milton, in the passage just cited, appears to suggest that something less was to be made of the witness's observations of the applicant because he spoke in a personal capacity, and not as representing the views of the Department. In fact, the judge's view, which he repeated a number of times in the course of the plea, was that at the outset he had been misled by Mr Milton into believing that the witness was expressing a Departmental rather than a personal assessment of the applicant's situation; and that he would not accept what the witness said except, in substance, if it was corroborated by some other material placed before him.

9 Other than his discussion of the applicant's psychological status, the judge noted the applicant's guilty plea and admissions made by her with respect to a co-offender. He found that she was remorseful. He gave her credit for actively assisting 'in the prosecution of a corrupt police officer who took $10,000 from[her] bag.' He accepted that she would find imprisonment more burdensome than others because of her isolation. He stated that the applicant's prospects of rehabilitation depended 'entirely on [her] ability to return to Malaysia [after completion of sentence] and lead an honest life'. It is difficult to know what his Honour meant by this last remark.

10 The applicant seeks leave to rely on the following grounds of appeal:

Ground 1: The learned sentencing judge erred by imposing a sentence on the applicant that was manifestly disparate with the sentence imposed on Sock Hoon Lim.

Ground 2: The learned sentencing judge erred in characterization of the applicant's criminality as being 'slightly down the ladder from Kenny Lim.

Ground 3: The head sentence imposed and the non-parole period are manifestly excessive.

Insufficient weight was given to the matters of personal mitigation available to the applicant whilst undue regard was paid to:

(b) The irrelevant consideration of whether Greg Milton's evidence was 'authorised' or otherwise.

(c) The irrelevant consideration of the successful completion of a six page Forensic report without an interpreter.

11 In relation to the first ground, counsel submitted that the applicant's criminality was closer to that of Sock Lim[5] than to the criminality of Kenny Lim. Both the applicant and Sock Lim were subordinate to a 'controller'. The applicant had extremely limited contact with the head of the syndicate, and was clearly a conduit for communications with the head by Chi Huong Khor. Conversations with the syndicate head took place on Khor's telephone service.

12 Counsel further submitted that differences between Sock Lim and the applicant in relation to monetary receipt and distribution were misleading. The combined dealings of Kenny Lim and Sock Lim were comparable to the applicant's dealings in combination to Khor. The absence of Khor has, however, disadvantaged her and led to an unfair amplification of her criminality. The disparity between the sentence imposed upon the applicant and the sentence imposed upon Sock Lim gave rise to a justifiable sense of grievance on the part of the applicant.

13 Ground 2, counsel submitted, was a development of Ground 1. The prosecution had characterised the applicant's role not only as being in direct contact with the syndicate head, but also being 'involved with the finances of the syndicate.' But her role was overstated because each circumstance was a corollary of her subordination in relation to Khor. The judge failed to grapple with the applicant's true position in his reasons.[6] The sentencing remarks revealed error in the judge's characterisation of the applicant's criminality.

14 Respecting Ground 3, manifest excess, counsel submitted that there was evidence on the plea that the applicant was suffering anxiety and insomnia, and that custody would, and had, cause her 'significant stress'. Mr Milton had given evidence as to the extent of the applicant's distress and his concerns for her welfare in custody. His evidence was supported to a substantial degree by the report of Dr Godfredson. A general practitioner, Dr Wu, had treated the applicant for anxiety from May 2012. He was continuing to treat her at the time when he compiled his report in September that year. But the judge had not referred to that doctor's report. The evidence of the applicant's distress, anxiety and suicidal ideation, as a whole, was worthy of significant mitigation. But neither the sentence nor the judge's remarks suggested that appropriate weight was given to these matters. Rather, the judge was unduly distracted by the status of Mr Milton in reporting and giving evidence. The fact that, as it emerged, the witness was not authorised by his superiors to provide a letter, and to give evidence on the applicant's behalf, received attention disproportionate to the relevance of those matters on the plea. In substance, however, the content of his report and his viva voce evidence was not controversial.

15 Counsel further submitted that, although the judge referred to the applicant's isolation bearing upon the burden of her incarceration, he made no reference to the father of the applicant recently suffering a serious medical condition. This, counsel argued, was a fact bearing upon the applicant's anxiety and the burden of imprisonment.

16 In its written case, the Crown submitted, with respect to the parity ground, that the disparity in the sentences arose from the differing roles played by the co-accused. Sock Lim was a 'shopper' and the applicant was both a 'shopper' and 'controller.' The applicant's role therefore was more serious - although counsel for the applicant, at the plea hearing, attempted to downplay the role assigned to her by the prosecution. The judge correctly described the applicant's role to be in the middle area - somewhere between a foot solder and the brains of the operation.

17 With respect to Ground 2, it was submitted that the characterisation of the applicant's criminality was consistent with the discussion during the plea, and was open to the judge to distinguish between the respective roles of the applicant and Sock Lim.

18 As to the contention of manifest excess, it was submitted for the Crown that the head sentence and non-parole period were well within the range available. The sentencing judge had regard to the psychologist's report, and did refer to anxiety and depression in the context of the Forensicare report.

19 It was further submitted that the judge was not 'unduly distracted' by the 'Milton issue'. The true position was that his Honour sought a Forensicare report after he received Mr Milton's report and heard his evidence. That letter was specifically taken into account. It referred to the applicant's anxiety. The judge referred to, and accepted, the difficulties the applicant would experience with prison life and also indicated that he has taken delay into account.[7]

20 Finally, the Crown submitted that the sentencing judge gave weight to all of the mitigatory matters. The offending was serious, organised and protracted, and was of an international character. The total loss attributed to the applicant amounted to over $94,000 (double the amount in respect of Sock Lim). General deterrence played an important role in the sentencing exercise.

21 Whether any of the grounds have been made out depends very largely on the question raised specifically by ground 2, that is, where was it that the applicant should be placed in the hierarchy of the offending. That question was debated at length in the course of the plea, which extended, intermittently, over a number of days.

22 This is what the Crown relevantly said in its opening:[8]

Julie Lim was in a relationship with another controller of the syndicate, Chee Heong Khor.

Following Khor's detention at Maribyrnong Immigration Detention Centre on 9 December 2011, evidence obtained form a search of Julie Lim's home at 2 Nith Court Glen Waverley indicates her involvement in the finances of the syndicate. Evidence from telephone intercepts also indicate direct contact with Sim Han Lee, the head of the syndicate.

...

Between 25 May 2010 and 29 December 2011, Julie Lim received deposits into her account of $65,000 (as Lee Lee Lim).

Between 23 May 2011 and 25 January 2012, Julie Lim received deposits into her account of $22,000. Between 17 May 2011 and 10 January 2012, she transferred funds to Malaysia in the sum of $117,634.

23 On the first day of the plea, counsel for the applicant sought to 'soften' the description of the role which she had played - in particular by reference to the proposition that her role was subordinate to that of Khor, her boyfriend. Counsel made reference to the telephone calls which had been relied upon by the prosecution to show her contact with the operator of the scheme who was in Malaysia. It was counsel's contention that it could be inferred from the content of the phone calls that the applicant was acting on behalf of Khor and not as a controller in her own right.

24 When the matter was further argued before his Honour on 26 February 2013, the prosecution refined its case as follows:[9]

COUNSEL: Now, that's not put in the opening save to say that she knew Mr [Khor] and that Mr [Khor] went into immigration detention and was then deported. Now, it is agreed, if I can use that word in a criminal matter, but it is agreed that she was in a relationship with Mr [Khor], that prior to Mr [Khor] going into immigration detention money was transferred to Malaysia in the amounts described in the summary. That after he was placed in immigration detention money continued to be transferred by Ms Lim to Malaysia.

It is also agreed that money went into accounts in Malaysia some of which were in her name. Some of which were in accounts controlled by either Mr [Khor] or the syndicate generally. Without going through all of the bank records which could take some time, I am not in a position to say exactly how much each of those amounts were, but it's not disputed that the money was being sent back for the purposes of the syndicate.

HIS HONOUR: Say again.

COUNSEL: It's not disputed that the money being sent to Malaysia was for the purpose of the syndicate. It is also not disputed, as was put in the opening, that shoppers received between 10 and 15 percent average commission and so therefore money was also being paid for her benefit. Now, it's certainly not in issue that there were communications, as my friend agreed earlier, there were communications between Ms Lim and the syndicate head and it's also not disputed by either party that she continued those after Mr [Khor] went into immigration detention and for that matter she was therefore, and I will use the word very broadly, more responsible for what was going on within the cell that she operated in after Mr [Khor] was deported. That's in the sense that she is still here on the ground while he isn't.

HIS HONOUR: Yes.

COUNSEL: So in that sense, Your Honour, there is no dispute between myself and [Applicant's counsel] that she is more than a shopper, she is not a co-ordinator to a higher extent than has already been described, but she is more than a shopper.

HIS HONOUR: Yes.

COUNSEL: And my friend rightly recounts, and this was also discussed at the Magistrates' Court when this matter was being resolved as to what those calls that she made constituted, as the prosecution we are not in a position to say whether Mr [Khor] is telling her what to do or Mr [Khor] is present when she makes the calls. I don't think it's disputed that the nature of the calls indicate that he may have been present in the room when she makes the calls to the syndicate head. The level of control that he has over her we can't say.

HIS HONOUR: Yes.

COUNSEL: That's about the extent. All we can say is the mere fact that the calls were made, when she was arrested there were some documents which indicate facts and figures with regard to moneys that were being, if I can say, manipulated by the syndicate. But beyond that we can't say anything as to her level of involvement.

HIS HONOUR: Yes.

COUNSEL: But she is in a different position than a straight shopper and I don't think that's in dispute.

25 Ultimately, it became common ground that the applicant fitted into the hierarchy between Kenny Lim on the one hand and Sock Lim on the other. The argument advanced on behalf of the applicant resolved itself into this: that despite the applicant's place in the hierarchy being above that of Sock Lim, and below that of Kenny Lim, the judge placed her too close to the latter and too far from the former.

26 It was always accepted that Sock Lim was only a 'shopper' and that she acted under the influence of her husband. She was also only 21 years of age, and her relative youth was an important consideration.

27 I am satisfied that there was nothing like equality of criminality in the roles of the applicant and Sock Lim. Those who play any managerial role in this kind of offending are in a significantly different position to those who are characterised as 'shoppers' - who are considered as having acted for others.

28 Whatever might be said about the role played by the applicant in the phone calls to the Malaysian operators of the scheme, she did play an active role between 9 December 2011 and 12 January 2012. She was involved in four shopping trips in December 2011. She may well have been still acting under Khor's instructions, but she knew enough about the immigration system to know that if Khor was not charged he would probably be deported. It was accepted in argument that papers had been recovered from the applicant's house in January 2012 which showed she had been active in the operation.

29 All things considered, in my opinion the judge was correct to conclude that the applicant's role was 'slightly down the ladder from Kenny Lim'.

30 When the three sentences imposed are looked at arithmetically, which is of course only a rough guide, the mid point between those imposed upon Kenny Lim and Sock Lim would be a sentence of 30 months with a non-parole period of 21 months. Although there are some matters on the plea which were more powerful in the applicant's favour, many of the features relating to Kenny Lim, Sock Lim and the applicant were similar. So, bearing in mind the judge's characterisation of the roles of the offenders, which I have accepted as being correct, and looking at the crude arithmetic, the applicant's sentence should not be considered indicative of a want of parity with the sentence imposed on Sock Lim such as should give the applicant a justifiable sense of grievance.

31 A conclusion reached in that way coincides, in my opinion, with the conclusion reached if one examines the respective roles of the applicant and Sock Lim, and their respective personal circumstances.

32 Respecting the manifest excess ground, I would say this: Whilst loose language or arguably incomplete reasoning might, in a particular case, provide an explanation why it was that a sentence turned out to be manifestly excessive, if the sentence is evidently not of that character such infelicities cannot make it so.[10] For my part, the judge left unexplained his observation that the psychologist, Ms Northey, had opined that 'there was a pragmatism to [the applicant's] offending behaviour that is somewhat perplexing.' The same should be said of his Honour's observation that Dr Godfredson of Foreniscare had been able to carry out successfully an extended interview with the applicant without the aid of an interpreter. But neither observation was shown to have been used as a matter of aggravation which inflated the sentence; still less, was used in a way which took the sentence out of the available range.

33 I next regard much of what transpired in relation to Mr Milton on the plea as having been a distraction. Much was made out of something which might well not have justified it. But, in the end, his Honour did accept the witness's letter and evidence for the purpose for which they were relied upon by defence counsel. Thus, his Honour's repeated, adverse comments about Mr Milton in the course of the plea were essentially part of the narrative and were not shown to have intruded into the sentence.

34 In the end, considering all the circumstances of the offending and the offender, I could not conclude that the sentence was beyond the range reasonably available. Stern, yes; manifestly excessive, no.

35 Each ground was reasonably arguable. That is why I was of opinion that leave to appeal should be granted. But the applicant did not make out any ground, and that is why I was of opinion that the appeal should be dismissed.

[1] DPP v Kenny Lim & Sock Lim (Unreported, Court Court of Victoria, Judge Parsons, 28 & 29 November 2012), [2]-[6]

[2] DPP v Lim (Unreported, County Court of Victoria, Judge Parsons, 27 February 2013) ('Sentencing remarks'), [12], [13], [16]-[19]

[3] The judge was intending a reference to Kenny Lim

[4] Sentencing remarks, [29]-[32], [35]-[37]

[5] Who was sentenced by the same judge to 18 months' imprisonment with a non-parole period of 9 months

[6] Sentencing remarks, [12], [13], [17], [18], [39]

[8] Summary of prosecution opening, [18], [19], [30] & [31]

[10] Which is not to say that, in a particular case, some such infelicity might not be relied upon as constituting specific error.