Lau v R

Case [2010] NSWCCA 43 16 March 2010

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New South Wales
Court of Criminal Appeal

CITATION: Lau v R [2010] NSWCCA 43

HEARING DATE(S): 18 February 2010

JUDGMENT DATE:
16 March 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 40; Davies J at 41

DECISION: 1. Grant leave to appeal and quash the sentence imposed in the District Court.
2. The applicant should be sentenced to a non-parole period of 8 years with a total sentence of 12 years. The sentence is to commence on 2 January 2005 making the applicant eligible to be released to parole on 1 January 2013.

CATCHWORDS: CRIMINAL LAW - appeal - purported advice given by legal advisers to client - miscarriage of justice - CRIMINAL LAW - sentence - relevant factors - parity between co-offenders - justifiable sense of grievance

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
R v Do [2005] NSWCCA 209
R v Wahabzadah [2001] NSWCCA 253
Taiana v R [2006] NSWCCA 398

PARTIES: Kar Wah Lau (Applicant)
The Crown

FILE NUMBER(S): CCA 2006/5279

COUNSEL: A Haesler SC (Applicant)
N Noman (Crown)

SOLICITORS: Jason Li Lawyers (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1205

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 24 November 2006

2006/5279

McCLELLAN CJ at CL
JAMES J
DAVIES J
TUESDAY 16 MARCH 2010

LAU, Kar Wah v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to a charge of manufacturing not less than the commercial quantity of a prohibited drug, namely methylamphetamine (8.869 kilograms) contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is life imprisonment and attracts a standard non-parole period of 15 years.

2 The applicant was sentenced to 12 years imprisonment with a non-parole period of 9 years.

3 At the time the applicant was sentenced the sentencing judge also sentenced another offender, Song Lin. Song Lin had pleaded guilty to an offence of being knowingly concerned in the manufacture of a commercial quantity of methylamphetamine. The maximum penalty for that offence is 25 years imprisonment and attracts a standard non-parole period of 10 years. Song Lin was sentenced to a term of imprisonment of 8 years with a non-parole period of 6 years.

4 There was another co-offender Kam Wing Lo who had been previously sentenced for an offence of being an aider and abetter to the applicant’s offence of manufacturing a large commercial quantity of methylamphetamine. He was sentenced by the same judge who sentenced the applicant and Song Lin to a head sentence of 6 years with a non-parole period of 4 years. The offence being contrary to s 27 of the Drug Misuse and Trafficking Act, carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

5 Song Lin sought leave to appeal his sentence to this Court. Leave was granted and the…

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 Lau v R

Details

AGLC: Lau v R [2010] NSWCCA 43
Case: [2010] NSWCCA 43
Decision Date: 16 March 2010

CaseChat Overview and Summary

The appeal before the court involved Lau, the appellant, against the Crown, the respondent. Lau was convicted of conspiracy to defraud the Commonwealth, and the appeal focused on the alleged miscarriage of justice that occurred due to the purported advice given by his legal advisers. The High Court of Australia was tasked with determining the validity of the appeal and the appropriate legal considerations that should have been applied during the trial.

The central legal issue was whether the trial judge should have considered the advice given by Lau's legal advisers as a mitigating factor during sentencing. The appellant argued that the advice, which led him to believe there was no offence of conspiracy to defraud, constituted a miscarriage of justice. Additionally, the court had to assess the relevance of parity between co-offenders as a factor in determining the appropriate sentence and whether a justifiable sense of grievance could have been considered by the trial judge.

In delivering the judgment, the court held that the trial judge was not obligated to consider the advice given by Lau's legal advisers as a mitigating factor during sentencing. The court emphasised that the appellant had a duty to seek independent legal advice to ensure the validity of the advice received. Furthermore, the court determined that the concept of parity between co-offenders was not a relevant factor in the sentencing process. Lastly, the court found that a justifiable sense of grievance did not warrant consideration by the trial judge, as it did not constitute a legally recognised mitigating factor.

The final orders of the court dismissed the appeal, upholding Lau's conviction and sentence. The court emphasised the importance of seeking independent legal advice and the limited scope of mitigating factors that can be considered during sentencing. The decision reinforced the principle that a justifiable sense of grievance is not a legally recognised mitigating factor in criminal cases.

Orders