Liu v The Queen

[2006] HCATrans 324

[2006] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S599 of 2005

B e t w e e n -

PUI MAN LIU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2006, AT 3.02 PM

Copyright in the High Court of Australia

MR A.C. HAESLER, SC:   Your Honour, I appear with MS R.W. BURGESS for the applicant.  (instructed by Legal Aid Commission of New South Wales)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

KIRBY J:   Mr Haesler, we have read Justice Adams’ dissenting opinion and we have read your written submissions, what do you say?

MR HAESLER:   The principal grounds remain that the Court of Criminal Appeal wrongly constrained their discretion when they considered both the question of error and excess in terms of the decision of the primary judge.  They did so in two key areas, the first being the approach to the amount of drugs seized and the corresponding available maximum penalty, the second the use of statistics. 

By modestly varying only the non‑parole period by 15 months, they failed to give what we say is a properly proportioned sentence taking into account all necessary factors, particularly moral culpability and the exceptional personal circumstances of the applicant to her co‑offender.  The third point is the mercy point, that they failed to afford her the mercy her exceptional case deserved, particularly in relation to the non‑parole period. 

The source of the error at first instance, we say, can be found at application book 12.

KIRBY J:   You need an extension of time, I think.

MR HAESLER:   We do, your Honour.

KIRBY J:   Is there any problem with that, Ms Abraham?

MS ABRAHAM   No, there is not.

MR HAESLER:   Your Honour will note from the affidavit at 41 that we did not get the judgment until December.

KIRBY J:   Yes.  You can assume that you will have that extension.

MR HAESLER:   Thank you, your Honours.  If I might take your Honours to page 12 of the application book, the paragraph starts at line 30 or 31.  Her Honour:

While I recognise that foreign nationals cannot expect leniency if they come to this country purely to commit serious offences, in my view Ms Liu’s situation is such that it would be appropriate to reduce the non‑parole period to fifty per cent of the head sentence.  In addition her criminality is less than Wong’s even though she imported just over the commercial quantity of heroin.  She was not in debt and did not stand to gain anything financially.  She was brought into the situation by Wong’s gambling debt and subsequent actions.  These factors justify the same head sentence for each offender.

Now, true it is that she, as opposed to her co‑offender, faced a potentially higher sentence, but that potential is just that.  The range of sentences available to her Honour went from dealing with the matter pursuant to 19B of the Act ‑ ‑ ‑

KIRBY J:   You appear to be trying to remove from thinking the fact that this was a very serious offence, that the quantity was sufficient to be in the highest category, and that Parliament has decided that quantum is very significant.

MR HAESLER:   Quantum is significant when it comes to the potential liability and quantum is significant when it comes to fixing the maximum penalty – here, life imprisonment – and that has to be given considerable weight in any sentencing exercise.

KIRBY J:   Why has Parliament done that?

MR HAESLER:   Parliament has done that as a way of putting in some preliminary grading of matters.

KIRBY J:   It has done it out of recognition of the objective harm that can be done from the importation of the larger quantity of the drugs.

MR HAESLER:   Parliament, however, has not put in any minimum sentences.  Parliament has extended the range of sentences for some offences and not others.

CRENNAN J:   In relation to the maximum penalty, is it correct to say this was at the bottom of the range?

MR HAESLER:   So far as those matters which attracted the potential of a life imprisonment, it was at the very bottom of the range.  She scraped in by a few grams into that higher category.  But the problem we say in the approach of the primary judge and the Court of Criminal Appeal was that what they had here was a range and the range available was from life imprisonment through to a modest sentence – we say an extremely lenient sentence.  It is clear, as your Honour Justice Kirby has noted, the quantity of drugs regardless called for condign punishment, appropriate punishment to bringing in a quantity of drugs with the risk to the community. 

KIRBY J:   I have to tell you, Mr Haesler, that there would be a lot of people in the community who would think that the sentence imposed on your client was inadequate.

MR HAESLER:   Were one just to consider the maximum penalty and the quantity of drugs, but that is not what the courts or the community are to consider.  The community has to trust that judges will, and we say should, consider all of the factors.

KIRBY J:   You have to show error in a statutory scheme which is the starting point which is posited on quantum.  One can have different views about the utility and success of this strategy for dealing with this problem, but that is what Parliament has provided and it is posited on quantum.

MR HAESLER:   With respect, what is posited on quantum is the available range of sentences and we say that is vastly different than the sentence which should be imposed.  It creates the possibility or the potential for particularly heavy sentences.

KIRBY J:   But it is not irrelevant to the sentence that should be imposed.

MR HAESLER:   We are not saying it is irrelevant.

KIRBY J:   Because of the objective harm to the community and lives of other people of the amount that is brought in.

MR HAESLER:   But when one comes to make a finding based upon all of the relevant factors of sentencing which are set out by the common law and in section 16A, the court has to look at not just the objective criminality based solely upon what was done without even considering the circumstances of the offending.  That is what the quantity does.  It focuses on one tiny aspect which allows for the potential sentence to be increased.

KIRBY J:   I just do not think that is correct.  I think if Parliament has fixed a life sentence because of the quantum, a sentencing judge would be erring in the sentencing discretion if the sentencing judge did not have regard to the quantum in fixing the sentence for the particular offender.

MR HAESLER:   That is one of the factors ‑ ‑ ‑

KIRBY J:   It is not just a gateway.  It is the offence.  It is the very offence with which your client was charged.

MR HAESLER:   But we say that that simply makes that range greater.  The problem, with respect to your Honour’s argument, is that it ignores the fact that there is a complete range of sentences available – in this case the complete range of sentences available.  That might be – I hesitate to use the word “starting point”, but it is a factor that obviously has to be considered.  But when one looks at the entire case – and I am taking your Honours back to what her Honour said at page 12 – she formed the view that her total criminality was less than that of her co‑offenders.  So what we had then ‑ ‑ ‑

KIRBY J:   I understand that argument and I think that may well be so in the facts, but the fact is that she brought in the greater quantity and that was enough to tip her over into the most serious category of offence.  I know you say that is because she was a vulnerable person.  She was pregnant at the time.  She was probably put into this situation under some form of pressure, a lot of pressure probably.

MR HAESLER:   Considerable, falling less than the defence of duress, but only just below it.

KIRBY J:   She suffered greater than the ordinary prisoner because of the birth of her son and the ethnic and cultural factors that Justice Adams pointed to.  All of those are important considerations, but I just find it hard to get away from the quantum of the drug, which is a factor Parliament has given great attention to.

MR HAESLER:   The point is that by Parliament fixing the maximum based upon the quantity, this is the point – and I tend to be repeating myself, but that is the difference.  If they had fixed a minimum based upon the quantity, then we would not have an argument, but they have not done so.  What they have left to sentencing judges is the complete range – here the complete range of available punishments.  Having done so, they have left it to the court to exercise their discretion in relation to what is just and appropriate, in terms of section 16A, a sentence appropriate to the offence and the offender.

KIRBY J:   Can I ask you a very practical question?

MR HAESLER:   Yes.

KIRBY J:   I see that your client’s non‑parole period is to expire, I think, in August of this year. 

MR HAESLER:   In August.

KIRBY J:   If this Court were to grant special leave, the matter would not come on for hearing until, I would think, well after August and then the Court would probably reserve its decision and not give its decision until some time in 2007.  By that time I expect your client will have been deported back to China.

MR HAESLER:   One could hope that that may occur but she has a potential liability of another four years in prison.

KIRBY J:   I realise potential, but is it not that – she was a pregnant mother at the time.  She has a young son who is not an Australian citizen.  She is not an Australian citizen.  I mean the overwhelming likelihood and expectation is that she will be removed from this country as quickly as can lawfully be done, which is the end of the non‑parole period.

MR HAESLER:   That would be the expectation but, with respect, one would have an expectation, we say, when she came to be sentenced.

KIRBY J:   Perhaps we will ask Ms Abraham about that point in due course.  But you run up against the fact this Court has said repeatedly we just do not have the time to be, and nor is it our proper function to be, a super court of criminal appeal.  We have said that, but we have, in fact, got into issues of general principle in sentencing but ‑ ‑ ‑

MR HAESLER:   That is different, with respect, general principles of sentencing as opposed to questions of excess.  One would expect this Court to give some guidance with respect to general principles of sentencing.

KIRBY J:   I suspect if this matter came to the Court, the matter that would be clearest in the Court’s eyes would be what Parliament has said about this type of offence and this amount of quantum.  That is what affected the judges in the majority in the Court of Criminal Appeal.

MR HAESLER:   But that effectively says that by extending the range upwards, one precludes a lenient or merciful sentence.

KIRBY J:   Not really, because the fact is that your client for such a quantum got what on one view was a moderated sentence because of the so‑called subjective factors.

MR HAESLER:   But it was moderated to a relatively small degree with regard to the non‑parole period.  She received, if one went to what the Court of Criminal Appeal in New South Wales said in Wong before it went to the High Court, the bottom of the guideline range:  a sentence of eight years. 

There is nothing moderate in that.  It is a light sentence but, nevertheless, only by relationship to ‑ ‑ ‑

KIRBY J:   Moderate when measured against life.

MR HAESLER:   Yes, but it is not moderate when measured against what could occur at the other end of the spectrum.  When one looks at ranges of penalty, life is an exceptional penalty even for an offence such as this.  When it comes to the point we make in relation to range, to say that a person is precluded from a merciful or a lenient sentence simply because of the quantity of drug imported, to say that they should get the same sentence because of the chance that she was loaded up as a mule, a not willing mule, the different packet than her co‑offender, that that should make her more culpable, given the absence of moral culpability, we say, is to take into account a matter which is inappropriate and requires intervention.  It is not that the maximum imposes a minimum.  That, we say, is a point of principle that does require discussion.

KIRBY J:   Yes.

MR HAESLER:   So far as the mercy point again, it is a factor where the courts are able to find that a sentence goes out of the range of sentences appropriate to particular offenders to give a life sentence.  Yet, in a case such as this, which we say members of the public – and I will not quote Justice Adams but he makes the point – apprised of all of the facts, would say this calls for an exceptional sentence, but, in effect, the Court of Criminal Appeal said we cannot do so because there is a range of sentences and we should not fall outside it.  With respect, that is just wrong in principle and, although this Court is not here to sit simply to judge matters of excess or leniency, we say those principles do justify the intervention of the Court.

KIRBY J:   Yes, thank you very much, Mr Haesler.  On the issue of parole, which is relevant to the practical utility of granting special leave were we minded to do so, can you say anything about the likelihood in the circumstances of the applicant?

MS ABRAHAM   Yes, I can.  I note in my friend’s submissions today and, indeed, in his written submissions at page 51, he refers to section 19AL(2) of the Crimes Act.  In fact, in the Crown’s submission, section 19AL(1) applies, and that is for sentences less than 10 years, so it is more than three years and less than 10 years.  In those circumstances:

the Attorney‑General must, by order in writing, direct that the person be released from prison on parole:

(a)      at the end of the non‑parole period; or

(b)if the Attorney-General considers that in all the circumstances it would be appropriate to do so, on a specified day, not being earlier than 30 days before the end of the non‑parole period.

So, in effect, on a sentence with a head sentence of less than 10 years, it is a different situation to the one my friend referred to and it is, in effect, automatic.

KIRBY J:   So that it really requires the Attorney‑General to release the applicant and ‑ ‑ ‑

MS ABRAHAM:   Yes, it is in terms.

KIRBY J:   ‑ ‑ ‑ therefore, once entitled to such release and, indeed, before that happens, the Migration Act would be set in train for the purpose of removing her from Australia. 

MS ABRAHAM:   I would assume so. 

KIRBY J:   Yes, thank you.  Do you wish to say anything in response to that?

MR HAESLER:   I accept the correction, your Honour.  The Migration Act can take time but that is not a matter that we would ‑ ‑ ‑

KIRBY J:   Strictly speaking, your client is entitled to have the matter determined on the basis of her head sentence and the issue of principle, but as a matter of practicality the case would not be reached and would certainly not be decided until she was far from these shores in the circumstances that we have been told.  So that makes it another reason, I think.

The application for special leave to appeal was made out of time. The applicant seeks leave to file this application and an order that the requirements of rule 41.02 of the High Court Rules 2004 be dispensed with. No objection to that course was raised by the prosecution. The Court gives the leave that is sought.

We understand the arguments that were made for the applicant on this application for the grant of special leave against the sentence imposed on her for the importation of a commercial quantity of heroin.  Essentially those arguments reflected the dissenting reasons of Justice Adams in the Court of Criminal Appeal of New South Wales.

On any view this case is a very sad one.  However, the starting point for the lawful sentence for the applicant’s offence was the applicable legislation.  That legislation fixed the maximum sentence for the offence at life imprisonment.  This is a reflection of the very serious view taken by the Parliament about this type of offence.  It is expressed by reference to the quantity of the prohibited drug imported into the Australian community.  No features personal to the applicant or, for that matter, her son, could erase that element from the proper exercise of the sentencing discretion.

In these circumstances we are not convinced that the majority of the Court of Criminal Appeal erred in upholding the sentence imposed at trial.  In any event, we note that, with parole, the applicant will be released from the custodial part of her sentence in August 2006 and will then, on the information given to the Court, be deported from Australia.  Special leave is refused. 

AT 3.21 PM THE MATTER WAS CONCLUDED