R v Po Kau Lau (Unreported, County Court of Victoria, Judge Tinney, 12 May 2010)
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CRIMINAL LAW – Appeal against sentence – Importing marketable quantity of border controlled drug – s 307.2 of the Criminal Code Act 1995 (Cth) – Sentence of nine years’ imprisonment with non-parole period of six years not manifestly excessive – Sentencing error – Relevance to sentencing of recklessness, rather than intent, as state of mind – Whether judge mistakenly treated one mitigating factor as counterbalanced or eliminated by another sentencing consideration – Appeal dismissed.
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Appearances:
Counsel
Solicitors
For the Appellant
Ms M Fox
Lethbridges
For the Crown
Mr L Crowley
Commonwealth Director of Public Prosecutions
NEAVE JA: HANSEN JA: BEACH AJA
This is an appeal against a sentence of nine years’ imprisonment, with a non‑parole period of six years’ imprisonment, which was imposed on the appellant following his plea of guilty to one count of importing a marketable quantity of methamphetamine, contrary to s 307.2 of the Criminal Code Act 1995 (Cth).
Background
On 21 October 2009, the appellant arrived at Melbourne International Airport on a flight from China. After passing through the arrivals area, he was approached by a Customs Officer who carried out an examination of his baggage. Customs officers opened one of the boxes found in his luggage, which appeared to be food product, revealing two packages containing a powdered substance. A sample of the substance tested positive for methamphetamine. A further examination of the appellant’s baggage revealed 27 packages of a crystalline substance, which were concealed in four different ways: twenty items were packed in a plastic tray inside a cardboard box, one item was packed in silver foil inside a cardboard box and four items were packed in a tin. The final two items were packed inside a cardboard box.
Subsequent forensic examination and testing revealed that the total pure weight of methamphetamine in these packages was 709.8 grams. This amount is towards the top of the marketable quantity range, which is between 2 and 750 grams.
When the appellant was arrested and interviewed by Australian Federal Police, he claimed that he was unaware of the presence of drugs in his luggage. Instead, he said (among other things) that he was travelling to Australia for a four day holiday, and had been asked by a friend, Cheung Kee, to deliver the food packages to a person, whose name he did not know. He claimed that after arriving at his hotel, he was going to telephone Kee on a Hong Kong number, so that Kee could contact his friend to collect the items from him.
The appellant was aged 54 at the date of offending and 56 at…
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.
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Details
AGLC
Lau v The Queen [2011] VSCA 324
Case
[2011] VSCA 324
Decision Date
CaseChat Overview and Summary
Lau appealed against his sentence, contending that the sentence was manifestly excessive and that the sentencing judge had erred in her approach to the sentencing considerations. Lau was found guilty of importing a marketable quantity of a border controlled drug, in contravention of section 307.2 of the Criminal Code Act 1995 (Cth). Lau's total criminal history consisted of six prior convictions, all of which were for drug-related offences. His Honour Justice Edelman, who originally sentenced Lau, considered the matter on appeal and found that the appeal should be dismissed.
The legal issues before the court were whether the sentence was manifestly excessive, and if the sentencing judge had erred in her approach to sentencing. Lau argued that the sentence was manifestly excessive, and that the judge had erred by mistakenly treating one mitigating factor as counterbalanced or eliminated by another sentencing consideration. The Crown submitted that the sentence was not manifestly excessive, and that there was no error in the sentencing judge's approach. Lau submitted that his Honour had failed to take into account that his state of mind was one of recklessness, rather than intent, which was a mitigating factor. The Crown submitted that the judge had considered Lau's state of mind and that there was no error in the sentence imposed.
The court found that the sentence imposed was not manifestly excessive, and that there was no error in the sentencing judge's approach. The court found that the sentencing judge had not failed to take into account Lau's state of mind, and that there was no error in the sentence imposed. The court found that the sentencing judge had considered all relevant mitigating factors, and that there was no error in the sentence imposed. The appeal was dismissed.