Lau v The Queen - [2021] VSCA 162

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0216

HON WING LAU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and SIFRIS JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 May 2021
DATE OF JUDGMENT:	11 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 162
JUDGMENT APPEALED FROM:	[2019] VCC 1091 (Judge Parrish)

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CRIMINAL LAW – Appeal – Sentence – Parity – Attempt to possess commercial quantity of a substance reasonably suspected of having being unlawfully imported (1 charge) – Applicant sentenced to 8 years’ imprisonment with 5 years 6 months non-parole – Low level involvement by applicant in importation of two consignments – 5.9 times commercial quantity of methamphetamine – Co-offender sentenced for importing commercial quantity of border controlled drug (2 charges) – Sentenced to 12 years 9 months’ imprisonment with 8 years 4 months non-parole – Co-offender participated at very high level in importation of four consignments – 11.8 times commercial quantity of methamphetamine – Crown concession – Offences of significantly different seriousness – Need for much greater differential between co-offenders’ sentences – Leave granted – Appeal allowed – Applicant resentenced – Total effective sentence of 5 years’ imprisonment with 3 years non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Valos Black & Associates
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
SIFRIS JA:

Summary

The applicant (‘HWL’) pleaded guilty to one charge of attempting to possess a commercial quantity (‘CQ’) of methamphetamine, being ‘a substance … reasonably suspected of having been unlawfully imported’.[1] He was sentenced to 8 years’ imprisonment, with a non-parole period of 5 years and 6 months.[2]
[1]Contrary to ss 11.1(1), 11.2A(1) and 307.8(1) Criminal Code Act 1995 (Cth).
[2]DPP (Cth) v Lau [2019] VCC 1091 (‘Reasons’).

The attempt to possess related to two consignments of drugs. The applicant provided to his co-offender, Lam, his home address for the delivery of the first consignment and his work address for the delivery of the second. The total amount of pure methamphetamine the subject of the charge was 4,409 grams (4.41kg), which represented 5.9 times CQ for methamphetamine.

Lam, who had earlier been sentenced by a different judge (Judge Lyon), was found to have participated ‘at a very high level’ in the importation of methamphetamine.[3] He pleaded guilty to two charges of importing a commercial quantity of the drug, each involving two consignments. The total quantity of pure methamphetamine which Lam imported was 8.8kg, representing almost 12 times CQ. He was sentenced to a total effective sentence of 12 years and 9 months’ imprisonment, with a non-parole period of 8 years and 4 months.
[3]DPP (Cth) v Lam [2018] VCC 1655, [9] (‘Lam Reasons’).

The applicant’s principal complaint concerned the misapplication of the principle of parity. He contended that, given his very limited role — confined to the provision of two addresses for delivery of the drugs once imported — there should have been much greater differentiation between 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 The Queen

Details

AGLC: Lau v The Queen [2021] VSCA 162
Case: [2021] VSCA 162
Decision Date: 11 June 2021

CaseChat Overview and Summary

Lau and The Queen came before the court in an appeal against sentence. The applicant was convicted and sentenced to 8 years’ imprisonment with a non-parole period of 5 years 6 months for attempting to possess a commercial quantity of a substance reasonably suspected of being unlawfully imported. The applicant's co-offender was sentenced to 12 years 9 months’ imprisonment with a non-parole period of 8 years 4 months for importing a commercial quantity of a border controlled drug. The applicant's involvement was at a low level in the importation of two consignments of methamphetamine, while the co-offender was involved at a high level in the importation of four consignments. The co-offender’s quantity of methamphetamine was almost double that of the applicant.

The legal issues for the court to determine were whether the sentences imposed on the applicant and co-offender were commensurate with the respective levels of involvement and seriousness of their offences, and whether there was a sufficient differential between the sentences. The applicant argued that the sentences were disproportionate given the difference in their respective roles and the Crown conceded that the offences were of significantly different seriousness.

The court found that there was a need for a much greater differential between the sentences of the applicant and the co-offender to reflect the disparity in their respective levels of involvement and the seriousness of their offences. The court considered the relevant principles of parity and proportionality in sentencing and concluded that the applicant’s sentence was excessive in comparison to that of the co-offender. The court allowed the appeal, resentenced the applicant to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years, and directed that the applicant be given credit for the time already served.

Orders