The Queen v Lam[1999] QCA 299

COURT OF APPEAL

McMURDO P

PINCUS JA

CULLINANE J

CA No 166 of 1999

THE QUEEN

and

VAN CAM LAM Applicant

TOWNSVILLE

DATE 30/07/99

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty to one count of trafficking in heroin between 18 January 1998 and 12 June 1998.  Unfortunately, the facts placed before the sentencing Judge were not accurate and it is common ground that it is therefore necessary for this Court to resentence the applicant because of misinformation placed before the learned sentencing Judge.

An undercover operation code-named “Attic” was commenced to detect participants in the drug trade.  Between 19 January 1998 and 12 June 1998, the applicant supplied approximately 37 grams of heroin powder containing approximately 25 grams of pure heroin to a covert police operative in exchange for $33,750.

There were either 12 or 13 separate supplies to the covert police operative and one supply to an unknown male person on 25 February 1998.  The deals started in a relatively small way for sums of $400 and gradually increased till, on 9 March, the transactions involved $5,000.

On 14 March 1998, a search warrant was executed by police at the applicant's home and a bag containing eight foils of heroin was located.  A further foil was found inside a telephone book, as were paper pipes used for smoking heroin.  In addition money was found on the premises, including $590 under a mattress, and electronic scales.

The applicant was charged with a number of drug related offences and bailed.  It is a serious aggravating factor that he then continued to do business with the CPO on at least two occasions. 

He pleaded guilty in the Magistrates Court on 2 April 1998 to possession of utensils or pipes and was convicted and fined $225.  He was committed for trial on other charges, including possessing heroin and these charges were subsumed in the offence of trafficking, the subject of this application.

The prosecution submitted on sentence, that although the applicant was an addict the amount he earned from trafficking was more than he needed to support his addiction.  The defence submission made below was that the applicant received $100 for each gram of heroin sold and sometimes took part of the heroin for his own use, but that all the money he received from trafficking in heroin was used by him to support his habit.

This factual conflict was not particularly identified as one of importance at the sentences and no resolution was made in respect of it.  In the end, it matters little whether the money received by the applicant through his trafficking was entirely spent by him to feed his heroin addiction or whether some of it was used for living expenses.  It is common ground that he was an addict and was involved in the trafficking to support his addition.

The applicant was born in Vietnam in 1964 and has no prior convictions.  He is therefore 35 years old.  He came to Australia in 1991, when he was 27.  He is a single man without dependants.  He worked for three years in a bakery in Sydney and then as a fisherman on a trawler in North Queensland.  He was introduced to smoking heroin by friends.  His counsel at sentence submitted that the money he received in exchange for the heroin was deposited into a bank account belonging to the person who supplied the heroin.  He acted on commission.  He has not told the police the identity of that other person.

The purity of the heroin varied from 33 per cent on one occasion, 41.5 per cent on another and otherwise was between 62.6 per cent and on one occasion as high as 74.3 per cent.  This suggests that the applicant was involved in a high position in the chain in that the heroin in which he was dealing was very pure.

There was discussion at the sentence between defence counsel and the learned sentencing Judge as to consideration for early release on parole.  It does not seem to have been appreciated that this offence is one to which the provisions of section 9A Penalties and Sentences Act 1992 apply.  The learned sentencing Judge's sentence of 10 years meant that automatically the applicant was declared to be convicted of a serious violent offence under section 161B of the Penalties and Sentences Act 1992.  Because of section 166(1)(C), Corrective Services Act, the applicant would have been required to serve 80 per cent of that term of imprisonment.

The applicant's offending behaviour involved a serious involvement in the trafficking of heroin with a high percentage of purity for a substantial amount of money, although the money actually received by him was much less than this.  The applicant had no prior convictions, although this is offset to some extent by his continuation of the trafficking after he was charged with other drug offences and convicted of the offence of possession of utensils in the Magistrates Court in March 1998. 

Importantly, the applicant pleaded guilty.  Section 13 of the Penalties and Sentences Act 1992 requires a sentencing Judge to take the guilty plea into account and under 13(3) when imposing the sentence the Court must state in open Court that it took account of the guilty plea in determining the sentence imposed.  Section 13(1)(B) and (2) permits a sentencing Judge to reduce the sentence imposed upon an offender who has pleaded guilty at an early stage.  Under section 13(4), a Court that does not reduce a sentence imposed on an offender who pleaded guilty must state in open Court that fact and its reasons for not reducing the sentence.  A sentence is not invalid merely because of the failure of the Court to make the statement, but its failure to do so may be considered by an Appeal Court if an appeal against sentence is made.  His Honour did not indicate that he was taking the guilty plea into account or that he was reducing the sentence he would have imposed had the offender not pleaded guilty. 

In any case, because of the mis-statement of facts before His Honour it is agreed that this Court must re-sentence the applicant afresh. 

The cases of R v. Le 1996 2 Queensland Reports 516, Runcan 1993 70 Australian Criminal Reports 222, Sebez 100 of 1994 delivered on 17 May 1994 and Evans 487 of 1997 delivered on 28 April 1998, are of limited comparable value in that the facts on which they are based differ significantly from this case. 

Of more assistance is the matter of O'Grady 185 of 1996 delivered on 11 July 1997.  In that case the applicant, a 41 year old man with a previous conviction for possession of amphetamines and six other drug convictions, one of which resulted in a six month term of imprisonment, pleaded guilty to trafficking in heroin between November 1994 and March 1995.  During this period he deposited more than $100,000 into the bank at a TAB account in the name of a person, Kim.  He disposed of between 55 and 75 grams of pure heroin.  The offences occurred whilst the applicant was on probation.  He relied upon heroin as pain relief for an injury received in a car accident.  His plea of guilty was on the day of trial.  He was sentenced to 10 years' imprisonment and his application for leave to appeal against the sentence was refused.

A more serious example of the offence can be seen in R v. Nguyen 151 of 1999.  The applicant pleaded guilty to trafficking in heroin.  He was a wholesale supplier for personal gain of substantial quantities of high grade heroin supplied from Sydney by a person named Wong.  The applicant's activities were revealed as a result of an NCA operation using a covert police operative.  The total amount of white powder involved in the trafficking was 957.08 grams of white powder, containing 700.264 grams of pure heroin.  Further white powder and $13,700 cash was found at the applicant's home.  He was a user of marijuana and heroin but was not an addict, and was trading in heroin for personal profit.  He used his cut of the heroin that he supplied either for his own use or to sell to others for profit, and also received cash for each supply.  He stood to gain a further $99,000 if the final sale had proceeded.

In that case the Court found the proper starting point of an initial notional sentence was 16 years' imprisonment.  The applicant was entitled to have 16 months deducted from that for time spent in presentence custody that was not able be made the subject of a declaration.  The Court said a further deduction should then have been made to take into account the mitigating factors, in particular, the applicant's youth, and more especially, his plea of guilty.  A deduction of two years was allowed for those circumstances and the penalty imposed was one of 12 years and 8 months' imprisonment.  Part 9A of the Penalties and Sentences Act automatically applied.

These cases, together with the case of Giang, 313 of 1997, suggests that a sentence of 10 years' imprisonment is higher than was warranted in this case.  As the Court is re-sentencing, it is not necessary to conclude that the 10 year sentence was manifestly excessive.  The applicant's lack of prior convictions, the basis upon which the sentence proceeded, namely that the applicant received $100 per gram plus some heroin for his own use, and the fact that he was a heroin addict, warrant a sentence of nine years' imprisonment in the circumstances.

He did not assist police in revealing the name of his supplier.  In those circumstances, neither a declaration nor an early recommendation for parole is justified:  the  appropriate term this case is that the applicant be eligible for release on parole in the normal course after serving half the nine year term of imprisonment.

I would grant the application for leave to appeal, allow the appeal, and vary the sentence imposed below by substituting a period of nine years' imprisonment for the 10 year term of imprisonment ordered.  Otherwise, I would confirm the sentence below. 

PINCUS JA:  I agree the case presents a difficulty in that it seems to be common ground that the Judge was, to some extent, misled as to the facts.  They still remain somewhat unclear.  The counsel for the defence and counsel for the prosecution below agreed that the Court was dealing with a case of an addict, and the defence said, without any objection, that the basis upon which the applicant was being remunerated was, as I gather, $100 per gram of heroin sold.  He also took some heroin for his own use.

There was a difference between the submissions made on the question whether the applicant was making more out of the business than was necessary to feed his habit.  The Crown said that, in effect, he was making an excess.  That is, it was, to quote, “A lifestyle as well as an addiction thing.”  On that aspect of the matter, it is not possible to reach a conclusion, and it seems to me that it is necessary and desirable to dispose of the matter, as we are doing today.   That is, the difference between the submissions as to whether or not there was some element of profit involved, as well as feeding the addiction, is not such as to require the Court to send the matter back, which is what has been suggested to us. 

The circumstances that the applicant has no previous convictions, that he seems to have been deriving very little profit compared with the amount for which the heroin was being sold must be balanced, as Mr Henry rightly emphasises, against the fact that the heroin was of a high grade of purity.  The sentence of 10 years imposed was plainly not grossly excessive, but we are not faced with the problem of determining whether it was manifestly excessive because for the reasons The President has explained, we have to resentence exercising our own discretion.  It is for these reasons, in addition to those which The President has mentioned, that I agree with her Honour's proposed order.

CULLINANE J:  I agree with the orders proposed by The President, and I agree with what each of the other members have said. 

THE PRESIDENT:  The orders are:

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. The sentence below is varied by substituting a period of nine years' imprisonment for a 10 year term of imprisonment ordered, otherwise the sentence below is confirmed.