Lau v R

[2010] NSWCCA 43

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 appeal upheld and Song Lin was resentenced to a term of 6 years imprisonment with a non-parole period of 4 years. This Court found that Song Lin had a justifiable sense of grievance having regard to the sentence imposed on Lo, the court being satisfied that their criminality was of the same order. Lo also received the benefit of a finding of special circumstances. This Court was satisfied that because it was his first time in custody, his family are in China and he will not have the benefit of their visits to support him his sentence will be more burdensome than for the usual prisoner. The court was satisfied that these matters justified a finding of special circumstances and accordingly reduced the non-parole period which would otherwise have been imposed.

6 The applicant originally raised only one ground of appeal. However, he subsequently raised a further ground relating to statements he had made to a psychologist, Mr John Taylor, and evidence he had given to the sentencing judge in relation to his criminal history in Hong Kong. Accordingly, the grounds of appeal which were ultimately pursued are as follows:

Having regard to the sentences imposed on the co-offenders proper application of the parity principle requires that there be an appropriate adjustment downwards of the applicant’s non-parole period and head sentence.

The sentence proceedings miscarried by reason of the consequences flowing from the advice given to the applicant by his legal advisers:

(a) what he should say to psychologist Mr John Taylor when asked questions about his criminal history, and;

(b) what he should say when asked in evidence for his explanation as to why he did not disclose his criminal history to Mr Taylor.

7 When sentencing the applicant his Honour gave careful consideration to the circumstances in which the offences were committed. His Honour made the following findings in relation to the applicant:

“Mr Lau arrived in Australia on 15 December 2004 and flew to Sydney a couple of days later. He was arrested on 2 January 2005 at the premises which had been obtained as a base for the manufacturing process. He is a citizen of the Peoples Republic of China and a resident of Hong Kong.
Mr Lau was the person who was responsible for extracting the methylamphetamine from methylamphetamine hydrochloride, which had been hidden inside a number of electrical capacitor shells. The idea was that the material would be removed from the shells and mixed with water to dissolve the methylamphetamine. This was to be filtered and then heated, which would lead to methylamphetamine crystals being formed when the solution was cooled. By that process the total quantity of methylamphetamine which could have been produced from the materials that were discovered by police when they arrested the offenders was 8.8698 kilograms. The charge to which Mr Lau pleaded guilty was the manufacture of that quantity of methylamphetamine.
Mr Lau gave evidence that he only learned that he had been given the task of manufacturing the methylamphetamine once he came to Australia. He said that a Triad organisation had asked him to bring some filter papers to Australia and that he agreed because of concerns as to what would happen to him if he refused. Once here, Mr Lau’s evidence was, that he then discovered that he also had to be responsible for the separation of the methylamphetamine from the methylamphetamine hydrochloride and he had to make telephone calls to others on a daily basis, because he had no expertise in so doing. I reject this as being not a reasonably possible version of events. It is beyond comprehension that Mr Lau would be tasked with the manufacturing process unless he had some ability or expertise. This was not some amateur operation involving a relatively worthless substance. On the contrary, this was a sophisticated enterprise involving considerable expense and the prospect of a large profit. The task of manufacturing the essential product would not, I am satisfied, be placed in the hands of a person who is naïve and inexperienced as Mr Lau said he was. I find that Mr Lau knew before he came to Australia that he was to act as the cook, he being chosen because he knew what to do.”

8 In relation to Song Lin his Honour found that it was appropriate to sentence him for his role as a “general dog’s body”, as he did not know that more than 1 kilogram of methylamphetamine was to be produced. His Honour was influenced in making this finding by the fact that Song Lin had been charged with the offence of knowingly taking part in the manufacture of less than 1 kilogram of methylamphetamine being a commercial quantity rather than a large commercial quantity, with which the applicant was charged. The sentencing judge said that, although the reasons were not apparent, he must assume that the decision to charge the lesser offence was soundly based. In this Court it was acknowledged that the Crown could not prove that Song Lin knew that a large commercial quantity of methylamphetamine was being manufactured.

9 In this Court it was submitted that Song Lin played a similar role in the offending as did Lo. Because Song Lin’s sentence was one third greater, with a non-parole period half as long again as Lo’s, it was submitted that the sentencing judge had fallen into error. It was submitted that Song Lin had no role in the manufacturing process and was prevented from seeing the process or having access to plans. This Court accepted that the applicant in the present proceedings had refused to share significant information with Lin, whose role was limited to purchasing and on one occasion modifying some equipment. Otherwise, he drove the applicant and Lo around the city and accompanied them to various tourist locations.

10 Accordingly, this Court concluded that Song Lin had a justifiable sense of grievance in relation to the sentence imposed on Lo and reduced his sentence accordingly. As I have indicated a finding of special circumstances was also made.

11 The applicant submitted to this Court that his sentence should also be reduced. I do not accept that submission.

12 It was submitted that the evidence established that he was simply employed as a cook, had not been extensively involved in organising the set up of the operation and had no interest in the profit to be made from the product. Emphasis was also placed on the fact that by reason of the evidence of telephone intercept material which suggested that the operation was not efficiently conducted, his Honour should have concluded that the disorganisation came from the applicant’s inexperience in the whole production process. Accordingly, it was submitted that the offence falls in the lower end of the scale for this type of offending.

13 I am not persuaded that apart from one matter this Court should intervene with regard to the applicant’s sentence. Apart from the fact, which is of great significance, that the applicant pleaded guilty to the greater offence involving a large commercial quantity of methylamphetamine which carried a maximum sentence of life imprisonment with a non-parole period of 15 years, the factual findings made by the sentencing judge were open to him and justify the sentence which was imposed. It is plain that he was in control of the Australian manufacturing processes. Both the charge and his significance to the process mean that the appropriate sentence had to be significantly greater than the sentences imposed on his co-offender.

14 Although I am not persuaded that this Court should intervene in relation to the overall sentence, I am satisfied that having regard to the finding of special circumstances which this Court made in relation to Song Lin, if that finding is not also made in relation to the applicant he would have a justifiable sense of grievance. In Taiana v R [2006] NSWCCA 398 this Court considered the principles with respect to non-parole periods and issues of parity. Howie J referred to his judgment in R v Do [2005] NSWCCA 209 where his Honour repeated his remarks in R v Wahabzadah [2001] NSWCCA 253 in which he said that he did not believe “that there is any breach of the principle of parity, simply because different non-parole periods are specified for different co-offenders because of different findings as to the existence, or extent, of special circumstances” [15].

15 Because a finding of special circumstances reflects the personal characteristics of an offender, which will commonly differ between co-offenders, disparity is unlikely to be found in relation to a finding of special circumstances in relation to one co-offender and not another. However, Howie J accepted, as I do that there may be cases where all relevant facts and circumstances being equal, a finding of special circumstances in the case of one offender and not in the other may give rise to a justifiable sense of grievance.

16 In my view the personal circumstances of the applicant and of Song Lin are relevantly indistinguishable. The applicant came to Australia only a few weeks before he was arrested for the offence. Like Song Lin his family are in China and he will not have the benefit of their visits to support him. Although Song Lin could point to the fact that he was imprisoned for the first time, which is not true of the applicant, who has served a prison sentence in Hong Kong, nevertheless his personal circumstances are such that his sentence will be served harder than for the average prisoner. He has little English and his difficulty in communicating will also impact upon the harshness of his period of incarceration.

17 In the ordinary course I would not have been prepared to intervene to adjust the applicant’s non-parole period. However, I am satisfied that unless this Court does intervene the applicant will be left with a justifiable sense of grievance because of the relationship between his non-parole period and his overall sentence. The appropriate adjustment is to reduce the non-parole period to a term of 8 years.

Ground 2

18 The solicitors acting for the applicant arranged for him to be examined by a psychologist, Mr John Taylor, who prepared a report which was tendered before the sentencing judge. Mr Taylor records in his report that “[the applicant] stated that he does not have any previous criminal convictions.” His report was prepared upon this assumption.

19 The applicant gave evidence before the sentencing judge. However, on an occasion when the matter was briefly before his Honour relevant documents were tendered. They included the applicant’s record of offending in Hong Kong.

20 The sentencing judge identified the fact that the record was not consistent with what the applicant had told the psychologist. When his Honour raised the matter the solicitor acting for the applicant, Mr Goold said:

“Your Honour that has occurred to me your honour.”

21 At a later hearing the applicant gave evidence. Mr Goold asked him about his meeting with the psychologist and why it was he had failed to disclose to Mr Taylor his criminal record in Hong Kong. During that exchange the sentencing judge intervened. The relevant transcript is as follows:

“Q: In preparation for your plea of guilty and your sentence today Mr Lau, did you also speak with a psychologist by the name of Mr Taylor?
A: Yes.
Q: Is it the case that he asked you did you have a criminal record?
A: Yes.
Q: You answered no?
A: Yes.
Q: When he asked you that question, to what did you believe he was referring?
A: I think I misunderstood that his question in relation to whether I have any criminal record in Australia.
Q: You do not have a criminal record in Australia presently do you?
A: Yes.
Q: But you have a criminal record elsewhere, is that correct?
A: Yes.
Q: What is that record?
A: When I was young I had committed a robbery offence.
Q: Where was that?
A: In Hong Kong.
HIS HONOUR:
Q: I think you also had other matters in Hong Kong, apart from a robbery offence though didn’t you Mr Lau?
A: Yes I had been fined in the past.
Q: What for?
A: As far as I remember is cigarette for which Customs have not been paid.
Q: Any drug matters?
A: I have been transporting sleeping medication from China to Hong Kong.
GOOLD
Q: Did you also have a matter relating to false identity documents?
A: Yes.
Q: There is nothing else that you can recall, other than the one his Honour has reminded you of and what I have reminded you of?
A: No.”

22 The sentencing judge formed an adverse view of the applicant. In the course of his sentencing remarks his Honour said:

The psychologist also reported, and I quote, ‘Mr Lau stated that he has not previously been convicted of any criminal offence.’ That is not true. Indeed, he has a significant criminal history from Hong Kong. When asked to explain this discrepancy in the witness box the offender claimed that he misunderstood what the psychologist was asking him and believed he was only being asked about offences in Australia. Then, when giving evidence before me, he was asked whether he had any other convictions. Mr Lau failed to mention, until I prompted him, some of the offences which he had committed whilst in Hong Kong. I am satisfied that he was deliberately untruthful to the psychologist and attempted to mislead me concerning his prior criminal activities. The psychologist’s interview was conducted with the aid of an interpreter and the offender had similar assistance whilst giving his evidence in court. I do not believe that it is credible in those circumstances that the offender would have misunderstood what was being asked of him, either in court or in the interview.”

23 The applicant gave evidence in this Court in which he accepted that when he said to the sentencing judge: “I think I misunderstood that his question in relation to whether I have any criminal record in Australia” he had lied. Because of the short time the applicant had been in Australia the lie was self-evident and, as his Honour found, his explanation incredible.

24 The applicant said that he had made this response because of advice he had received from his solicitor Mr Goold and his assistant, Mr Ting. In an affidavit the applicant said that he was advised by Mr Ting not to tell the psychologist about his Hong Kong convictions. He said that he was told by the solicitor:

“We will first look at the police brief to see if the Hong Kong police have forwarded your Hong Kong criminal convictions to the Australian police and to the Australian court. If they have, then we will retrieve the old psychologist report, and we will arrange a new psychologist report, and then you can disclose to the new psychologist in that new report that you had previous convictions in Hong Kong. I can control this part of the information.”

25 The applicant said that when he later became aware that Mr Taylor’s report had been tendered and that the sentencing judge had received a copy of his criminal record from Hong Kong he was surprised and asked Mr Ting how it had happened. He said that Mr Ting responded that there was no need to worry and that:

“The only option now is to explain to the judge how it happened. On the next occasion we go to court, just tell the judge you have a criminal record in Hong Kong but when the psychologist came to do the report, the psychologist was Australian, he spoke English, there was a problem with communication, and that you misunderstood what the interpreter said, and that you thought he asked whether you had a criminal conviction in Australia. Just explain this to the judge. If you lie to reduce your sentence, the Australian legal system accepts this because your motive is to reduce your sentence, to protect yourself. You’re not hurting anyone in the process. Even if the judge does not accept your explanation, it should not matter that much, it will only increase your sentence by 6 months to 1 year. This sort of thing is very common/normal because you have a record in Hong Kong, not Australia. Even if the judge knows of your record, it should not have any great impact on your sentence.”

26 The applicant said that when the matter was dealt with in court and the sentencing judge expressed his disbelief he was concerned. He also said that he had been advised that he would receive a lesser sentence than that which the judge imposed. I infer that he believes the judge increased his sentence because he had been found to tell untruths.

27 The essential allegations in the applicant’s account of the relevant conversations are denied both by Mr Ting and Mr Goold.

28 Mr Goold says he was first made aware that the applicant had not told Mr Taylor of his criminal record in Hong Kong when the matter was raised by him with Mr Ting after the latter had visited the applicant at Silverwater. Mr Goold said that if the applicant’s explanation was that he had misunderstood Mr Taylor’s question and believed he was only being asked about his Australian convictions, the applicant would have to tell the truth and give this evidence before his Honour.

29 Mr Goold denies ever giving the applicant advice that he should give false evidence before the sentencing judge.

30 Mr Ting also denied the allegations made by the applicant. In relation to a number of the conversations in which the applicant said that advice was given to him not to tell Mr Taylor of his convictions and give the trial judge a false explanation for his response to Mr Taylor, he said that these conversations never occurred. He denied ever giving the applicant advice to lie.

31 There are some aspects of Mr Ting’s evidence which have required careful consideration. Although the applicant gave evidence that Mr Ting took notes of their conversations Mr Ting says that he did not do so. Given the nature of the instructions which Mr Ting was receiving in relation both to the offence and the applicant’s personal circumstances this is surprising. If true it does not reflect well on Mr Ting’s professional competence. I have also reflected on the fact that the applicant gives evidence of receiving advice which contemplated a complex sequence of events. He said he was told that if the sentencing judge became aware of his Hong Kong record the report from Mr Taylor would not be relied upon and a further report from a psychologist who had been told the truth would be obtained. I have been troubled as to whether it is likely that the applicant would have entirely fabricated advice of this character.

32 Notwithstanding my reservations it is important to remember that the applicant has a significant criminal record for offences which involve dishonest conduct. Unless I was firmly of the view that he was telling the truth his account of the relevant events cannot be accepted: see Briginshaw v Briginshaw (1938) 60 CLR 336.

33 Notwithstanding the matters to which I have referred I am not persuaded that the solicitor’s accounts of the events should be rejected and the applicant accepted.

34 No doubt the applicant’s concern to raise these matters was occasioned by the comments made upon this issue by the sentencing judge in his remarks. I have recorded the relevant comments at [22] above. The applicant believes the adverse view which his Honour formed of his integrity has influenced the length of the sentence.

35 I am not satisfied that the applicant’s understanding of the situation is correct. In the remarks on sentence his Honour makes findings in relation to the applicant’s role in the offences before raising his concerns in relation to his untruthful response to the psychologist and his attempt to mislead his Honour. It is the earlier findings that inform his Honour’s decision that the objective seriousness of the offence is in the middle of the range.

36 Irrespective of whether his Honour’s adverse view of the applicant’s credit was affected by the fact that he gave false evidence, I am satisfied that his Honour’s finding with respect to the circumstances of the offence and its objective seriousness were appropriate. Although it is understandable that the applicant may believe that his Honour’s concerns may have been reflected in his factual findings I am not satisfied this is the case.

37 In relation to the applicant’s subjective circumstances, leaving to one side that his Honour did not think he had given honest evidence, the applicant’s lack of integrity was made patent by the offences he had committed both in Hong Kong and in the instant offence. A finding that he had deliberately attempted to mislead the sentencing judge in relation to his prior record would have been of little if any consequence.

38 The concern which his Honour expressed was not so much in relation to the applicant’s response that he believed the psychologist was asking about his Australian convictions but, rather, when asked to disclose his convictions in Hong Kong the applicant was not forthcoming in relation to either or all of the offences he had committed or their relative seriousness. On any version of the events by the time the applicant was giving evidence before his Honour he had been advised that he must tell the truth. It is apparent that his Honour formed the view that even after he had been advised to this effect the applicant was still not truthful. This finding was open to his Honour and I am not persuaded this Court could set it aside.

39 Accordingly to the extent that his Honour’s opinion of the applicant’s truthfulness influenced the sentencing outcome it seems to me to have been justified irrespective of the advice given by the solicitor.

Orders

1. I would 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.

40 JAMES J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

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