R v Lam [2005] VSC 98

Supreme Court of Victoria|2005-06-15|Before: KELLAM J.

CRIMINAL LAW - Sentence - Plea of guilty to aid and abet the importation of a commercial quantity of heroin into Australia - Role of accused in criminal activity - Large quantity of heroin imported by sophisticated and extensive criminal undertaking.

The Solicitor for the Commonwealth Office of Public Prosecutions

"For the purposes of identifying the gravity of the offence and thus ascertaining the appropriate sentence, the legislation places emphasis on quantities of drugs trafficked and not on values, which, as this case itself shows, can vary according to the circumstances in which the drug is trafficked. I do not believe that the learned judge was deflected from this issue by assumptions as to value made by a police officer and which were contained in a written document that had been put before him. In my view the critical issue with which his Honour was concerned was the fact that the trafficking was in an amount of 900 grams, a fact which was conceded by the applicant. In my view his Honour was concerned to impose a sentence based on the size of the operation which in turn was reflected in the amount of drugs trafficked."

27 Accordingly, estimates of value of the heroin concerned are of no great weight. It is quite apparent that the final street value of an importation of heroin can vary greatly according to a number of factors including the availability of the drug at the time and the manner in which it is cut down, as well as a number of other circumstances. The legislation in question sets out the way in which a matter subject to the Customs Act 1901 ought to proceed by way of sentencing principles. In the case before me, the real matter of substance is that the quantity of pure heroin of which you aided and abetted the importation, was far in excess of the amount of 1.5 kilograms defined by the Act as a commercial quantity.

28 The prosecution submits that the amount of heroin imported, the nature of the operation associated with that importation, and the surrounding circumstances are such that the importation of heroin in question is a most serious example of this type of crime. Indeed, it is the most serious example of this type of crime known to have occurred in Victoria. It is submitted that the nature and extent of the operation is such that it can be concluded that the operation was complex and well-planned and that you comprised an important part of the operation and were important to the success of the importation. That is clearly so. In particular, it is clear that your part involved the arranging or confirmation of the place of delivery of the heroin from the ship to the shore. That planning involved an arrangement to rendezvous with a large ship at a predetermined location in circumstances of a high level of secrecy. The prosecution submits that you entered Australia for the sole purpose of assisting with the importation of the heroin. You did so by use of false documents. Your activity from the time of your arrival to the time of your arrest was focussed on assisting the commission of the offence of importing heroin into Australia.

29 The prosecution relies upon evidence which demonstrates that you, together with Teng and Lee, used a multiplicity of mobile telephones, connected in false names, in the period leading up to and at the time of the importation offence occurring at Boggaley Creek. It is submitted, and I accept, that the evidence of the use of various telephones, which were opened in false names, and with SIM cards being transferred between them, was designed to ensure that conversations were carried out in a way that would preserve secrecy and reduce the possibility of disclosure. It is submitted, and to my mind correctly so, that the operation was thus a sophisticated and well planned one.

30 In relation to your part in the hierarchy of people involved in the commission of this offence it is submitted by the prosecution that you were neither at the lowest end of the hierarchy, nor were you involved as a principal or financier of the operation. In particular, the prosecution concedes that there is no evidence that you played a more significant role than did Teng. Your role was similarly important to that of Teng, but different in that you were to effect delivery of the heroin from the ship to Teng and Lee.

31 Nevertheless, the prosecution contends that the evidence is that you acted with a high degree of authority and responsibility. You were present at the beach to receive the heroin. You had the means to be in contact with the ship. On 8 April 2003, a telephone which can be proved to be associated with you was in contact with a telephone which was later found in the possession of Wong. On 8 April 2003 the Pong Su was near Geraldton in Western Australia. You were in a position of sufficient credibility to be entrusted to be in possession of and to receive an immensely valuable importation of narcotic goods. That is clearly so. I am satisfied that your role was to communicate directly with those on the Pong Su, intending to import the heroin and to facilitate the delivery of the heroin from them into the hands of Teng and Lee.

32 However, Mr Meredith of Counsel submits that the evidence does not permit me to conclude that you were above Teng in the hierarchy of those involved in the crime to which you have pleaded guilty. The prosecution concedes that that is so.

33 Mr Meredith further submits that the evidence does not demonstrate that you were aware of the precise quantity of heroin to be delivered, although he concedes that the evidence demonstrates that you expected a large quantity of heroin. I accept that that is so. However, as is conceded, it is apparent that you knew you were involved in a major shipment of heroin that was the subject of a well planned and costly enterprise involving a number of people.

34 Furthermore, in terms of the reward for your conduct, Mr Meredith informs me that your instructions to him are that you were offered the forgiveness of your gambling debts of US$30,000 together with an additional US$50,000 to play your part in the importation. Mr Meredith says that his instructions from you are that the principal motivation for your becoming involved in the crime was due to your inability to re-pay your debts together with the promise of additional money.

35 A number of issues arise out of the respective contentions for the prosecution and the submissions of your counsel in relation to the part played by you in the commission of the offence to which you have pleaded guilty. The first is that the prosecution has relied upon evidence of your conduct leading up to the point of the importation of the heroin into Australia. Of course, it would be quite wrong to sentence you for crimes with which you are not charged[3] and you will not be so sentenced. Nevertheless, reference to your activities in the period of time leading up to the importation is necessary to determine the level of your involvement as an aider and an abetter of the importation in question. It is of assistance in endeavouring to determine, if possible, your place in the hierarchy of those involved in the importation. In R v Olbrich[4] Gleeson CJ, Gaudron, Hayne and Callinan JJ in relation to the identification of the involvement of the accused person in a crime related to importation said:[5]

"Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drug; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one to that imposed on another. In that context, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. ... Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did.

There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender's criminality."

36 In consideration of such principles, I am satisfied on the evidence before me that you are not a person who might be seen in the light of what has been described in the cases as a "mere courier", or a "mule", who is used as the expendable conduit of carrying a drug on an airflight, or by other means of transport from one place to another. I am satisfied beyond reasonable doubt that the part played by you in aiding and abetting the importation was a significant one. It is apparent that in the period of time leading up to the delivery of the heroin to the shore at Boggaley Creek you played an active part in the preparation for the landing. There is no doubt that you knew a considerable amount about the nature of the operation. You knew that a substantial quantity of heroin was to arrive by ship. You knew that it required to be transported from the shore and passed on to a third party. On the other hand, I accept that you were not the "mastermind" or the financier of the operation and that you were operating under instructions from other unknown persons. I accept that there is no evidence that you expected to share in the profits of the venture beyond the sum of the US$80,000 you have instructed your counsel that you were to receive for your part in the crime.

37 In Wong v The Queen[6] Gaudron, Gummow and Hayne JJ said:[7]

"The weight of a narcotic which is imported is given statutory significance for sentencing purposes by the parliament's distinguishing between the maximum sentence that might be imposed for offences involving traffickable and commercial quantities. No doubt, within both of those categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. But is weight generally the chief factor to be taken into account in fixing a sentence?

It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.

It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be said as important in fixing a sentence and distinguishing between offenders."

38 I accept that there is no evidence that until shortly prior to the importation occurring you had precise knowledge of the actual weight of the heroin to be imported. There is no evidence that you had any basis for knowing the level of purity of such heroin. However, as I have said and as Mr Meredith concedes, there can be no doubt that you knew that the quantity to be imported was substantial. You knew that a Tarago van had been hired for the purpose of assisting in the importation of the heroin. The evidence establishes beyond reasonable doubt that you knew well before the date of the actual importation that the heroin was to be brought to Victoria by means of a ship and there can be no doubt that you were aware in all of the circumstances that the shipment would be a substantial one. Furthermore, the assistance provided by you to the importation involved the movement of five packages each weighing approximately 25 kilograms which you described contemporaneously as being "too heavy". Accordingly, as the prosecution submits, the part played by you in aiding and abetting the importation of a large quantity of heroin into Australia was vital to the operation and thus your offence is serious indeed.

39 There are, however, a number of mitigating factors which I must take into account. The first of those matters is that you have pleaded guilty. Mr Meredith relies upon that matter in two ways. First, he relies upon it as being a relevant matter and an acceptance of the inappropriateness of your conduct[8] and as a demonstration of contrition for the offence. He also relies upon the matter as being relevant under s.16A(2)(g) of the Act. I accept the submission that the plea of guilty made by you in all the circumstances of this case is a matter of significance. Whilst it is true that the evidence against you is overwhelming, it is nevertheless a matter of considerable significance in all the circumstances of this complex trial that you have accepted your responsibility for the part played by you in aiding and abetting this importation of heroin. That said, however, it cannot be said that you entered your plea at an early time. You pleaded not guilty at both the committal and upon your arraignment before me. It was not until the handing down of a number of pre-trial rulings which affected your defence that you elected to plead guilty. In addition, it is not without significance that you did not plead guilty until after I had handed down sentence upon Teng.

40 Nevertheless, I accept that by your plea a considerable amount of time and inconvenience has been saved. In addition to the utilitarian value of your plea and such contrition as it demonstrates, there is the further aspect of public policy that your plea should be seen generally as encouragement to guilty persons to plead to their crimes.[9] Taking into account the seriousness of the case against you this matter should not be underestimated. For those reasons you are entitled to a substantial and transparent discount on the sentence which I would otherwise have imposed upon you had you been found guilty at the end of what, on any view, would have been a long and complex trial.

41 Your counsel informs me that your instructions to him about your background history and circumstances are as follows. You were born in May 1970 in Shenyang in North East China. You are aged 34 years. Apparently you are a single man. Both your parents were killed in a motor car accident when you were an infant. You have one sister who was reared by your grandmother. You have had little formal schooling. You were reared by a family friend who traded in scrap metal and cars and other materials within China and overseas. You lived with him in Cambodia and in Thailand during your childhood but returned to China in your early teenage years where you obtained employment in restaurants and in the motor vehicle trade. You instruct your counsel that you commenced to gamble during your teenage years. You left China at 18 years of age and subsequently moved to Cambodia where you obtained employment in Phnom Penh in the restaurant business. I am told that ultimately you obtained employment in the gaming industry.

42 In approximately early 2002, you moved to Malaysia. The instructions given to your counsel are that whilst you were in Malaysia you accumulated gambling debts of US$30,000. As stated above, you have told your counsel that it was in connection with this debt that you came into contact with those involved with the proposed importation of drugs into Australia. You instruct that you were offered forgiveness of the debt, and an additional US$50,000, to come to Australia and play your part in the offence. Your counsel submits that you accepted the offer because of your concern that the "mechanism for debt enforcement in Malaysia is somewhat more direct than the methods utilised in Australia".

43 The prosecution alleges no prior convictions against you. However, in the circumstances of this case this matter is not of significant mitigatory weight. The fact is that you are known as Yau Kim Lam by reason of documents which have been produced in evidence as being palpably false. Whether or not that is your real name is entirely unclear on the evidence before me. I am not satisfied on the balance of probabilities that it is.

44 I accept as submitted by your counsel that imprisonment for you will be more difficult and isolating than for other prisoners. You are from a foreign country and speak a foreign language and although you have commenced to learn English whilst in custody, no doubt you will be isolated from your culture. However, this must be a matter of limited weight. The fact is that you came here to assist in the commission of an extremely serious crime. In return for a substantial sum of money you were prepared to take the risk of apprehension. The inevitable consequence of that is that you, as you must have anticipated, will now be incarcerated in circumstances which will cause you some isolation.

45 Your counsel submits that your prospects of rehabilitation are good. It is difficult to give great weight to this issue since so little is really known about your background, but I accept that taking into account the consequences which will flow from your conduct on this occasion, the prospects of your not re-offending may well be increased. Nevertheless as well as matters personal to you such as the chances of your rehabilitation I must, amongst other things, take into account the issue of general deterrence. It is a matter of paramount significance in this case.

46 This is a serious example of a grave crime. To have been involved at the level that you were, in the largest importation of heroin ever detected in this State, and one of the largest ever detected in Australia, calls for severe punishment. The issue of general deterrence is of great significance in the determination of the appropriate sentence to be imposed upon you. Those who see fit to take the risk of playing a part in the importation of heroin into this country must have no expectation other than that the consequences of engaging in such enterprises will be severe. As the Victorian Court of Appeal said in R v Soo Su[10]

"Again and again the Courts have said that importers and traffickers of heroin will receive heavy sentences."

47 I have no doubt that that comment applies to those who aid and abet the importation of substantial quantities of heroin.

48 The importation of a large quantity of heroin in which you played a substantial facilitative role had the potential to cause grave harm to many members of our community. As Sully J said in Cheung Wai Man:[11]

"The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.

In the face of such challenges each of the institutional supports of our society has a role to play. That of the courts is to punish and deter according to law. Obviously, the courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who ... engage in drug related crime ... "

49 In my view the words of Sully J are applicable to the circumstances of this case. As I have said, the circumstances of your case are such that the issue of general deterrence is most important. This country has a vast and unprotected coastline which some foreign drug traffickers and dealers may see as providing an opportunity for undetected crime. Those persons and those who assist them must know that when detected they will suffer a heavy penalty for their greed.

50 Furthermore, I am required by s.16A(1) of the Crimes Act to impose a sentence that is of a severity appropriate in all the circumstances. This together with s.16A(2)(k) of the Act requires me to ensure that you are adequately punished for the offence.

51 Clearly, and for the reasons set out above, there is no alternative other than to impose a substantial sentence of imprisonment upon you.

52 The prosecution submits that you should be sentenced to a term of life imprisonment, but that I should fix a non-parole period. On the other hand, whilst your counsel concedes that a lengthy prison sentence is inevitable in all the circumstances, a head sentence of life imprisonment is submitted by Mr Meredith to be an inappropriate sentence.

53 Whilst I accept the thrust of the submission advanced on behalf of the prosecution that this case is without doubt a serious example of a grave offence, and that persons who are proven to have played a major part in the commission of an offence of the type before me can expect to receive condign sentences which may well require the imposition of the maximum sentence, I do not conclude in your particular circumstances that a head sentence of life imprisonment is appropriate. In fixing the head sentence, I am bound to approach the task on the basis that you might be required to serve every day of the sentence. As seriously as I regard the offence, and as significant as your part in assisting the importation of heroin into Australia was, such a head sentence would not be appropriate taking into account the part played by you in the importation in combination with matters of mitigation, including in particular your plea of guilty, by reason of which a substantial and transparent discount of your sentence is required. I have given careful consideration to this matter in particular.

54 I must also take into account matters of parity with others who have pleaded guilty. I have already sentenced Teng. First, I accept that there are no significant differences between you and Teng in relation to the part played by each of you in the commission of the offence. In my view, in terms of culpability your conduct is comparable and equal to his. That is a powerful factor in support of complete parity with his sentence. Secondly, however, in other regards there are some distinctions. The first is the factor of the plea of guilty and the degree of remorse which is associated with that plea. As stated above, you pleaded guilty well after Teng, and well after his sentence was handed down. He pleaded guilty on 27 January 2005. He was sentenced on 21 February 2005. You pleaded guilty on 9 March 2005. Furthermore, unlike Teng you waited until a number of rulings relevant to your defence were handed down. Your plea of guilty, deserving as it is of transparent discount, does not come about by reason of remorse or contrition. It comes about by reason of the clear recognition on your part of the inevitability of your conviction and the likely sentence which would follow such a conviction. Unlike Teng, there is no evidence of remorse before me, save for what might be called statutory remorse. Furthermore, whereas I was positively satisfied of the background of Teng and thus able to form some views about the possibility of reformation, I am unable to be so positively satisfied in your case. Finally, there is the factor of age. Teng will not have a significant period of useful life available to him upon release, even at the minimum term of his sentence. He will suffer additional hardship by reason of his age and absence from his family. You of course are considerably younger and appear to have no family.

55 Thus in terms of parity, there are a number of good reasons why your sentence should not be identical with that of Teng.

56 I sentence you to 23 years' imprisonment to commence this day. I set a non-parole period of 16 years. Pursuant to s.16E of the Crimes Act I declare that you have served 791 days by way of pre-sentence detention.

57 Mr Meredith, I ask you to explain to your client the purpose and consequences of the fixing of a non-parole period as required by s.16F(1) of the Act.

[1] 81 A Crim R 434 at 436.

[2] At 436.

[3] R v Simoni [1981] HCA 31; (1981) 147 CLR 383.

[4] [1999] HCA 54; (1999) 199 CLR 270.

[5] At 279.

[6] [2001] HCA 64; (2001) 207 CLR 584.

[7] At 609.

[8] See Crimes Act 1914 (Cth) s.16A(2)(b).

[9] See R v Duncan [1998] 3 VR 208 at 214-5.

[10] [1997] 1VR 1 at 73.

[11] Unreported, Court of Criminal Appeal, NSW 22 March 1991).

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