R v Lau
[2009] WASCA 99 (S)
•5 JUNE 2009
R -v- LAU [2009] WASCA 99 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 99 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:43/2008 | 1 APRIL 2009 | |
| Coram: | OWEN JA WHEELER JA MILLER JA | 5/06/09 | |
| 23/10/09 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Non-parole period of 17 years 3 months in event of refusal to cooperate | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN CHUCK SUN LAU |
Catchwords: | Turns on own facts |
Legislation: | Crimes Act 1914 (Cth), s 21E Criminal Appeals Act 2004 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : R -v- LAU [2009] WASCA 99 (S) CORAM : OWEN JA
- WHEELER JA
MILLER JA
DECISION : 23 OCTOBER 2009 FILE NO/S : CACR 43 of 2008 BETWEEN : THE QUEEN
- Appellant
AND
CHUCK SUN LAU
Respondent
- Appellant
AND
THE QUEEN
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
File No : INS 153 of 2007
Catchwords:
Turns on own facts
Legislation:
Crimes Act 1914 (Cth), s 21E
Criminal Appeals Act 2004 (WA)
Result:
Non-parole period of 17 years 3 months in event of refusal to cooperate
Category: B
Representation:
CACR 43 of 2008
Counsel:
Appellant : Mr S D Hall SC & Ms A Cooper
Respondent : Mr T F Percy QC & Mr S D Freitag
Solicitors:
Appellant : Director of Public Prosecutions (Cth)
Respondent : AKN & Associates
- <mpr>
CACR 46 of 2008
Counsel:
Appellant : Mr T F Percy QC & Mr S D Freitag
Respondent : Mr S D Hall SC & Ms A Cooper
Solicitors:
Appellant : AKN & Associates
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Nil
(Page 4)
1 SUPPLEMENTARY REASONS OF THE COURT: This court heard an appeal against sentence and a Commonwealth appeal against sentence on 1 April 2009. On 4 March 2008, McKechnie J had sentenced Mr Lau to 25 years' imprisonment, with a 16-year non-parole period, backdated to 1 December 1996. On 5 June 2009, Mr Lau was refused leave to appeal his sentence. Also on 5 June 2009, ground one of the Commonwealth appeal against sentence was dismissed and ground two of the Commonwealth appeal allowed, and Mr Lau's sentence adjusted so that it was backdated to 31 December 2001.
2 At the publication of the court's reasons, counsel for the Commonwealth foreshadowed a request to amend the hypothetical non-parole period that would be imposed on Mr Lau should he refuse to co-operate with authorities in future. This was a matter which was overlooked during the course of argument. It arises because of s 21E of the Crimes Act 1914 (Cth). The Commonwealth filed submissions in relation to this matter on 15 June 2009. Counsel for Mr Lau chose not to file submissions.
Sentencing
3 In sentencing Mr Lau, McKechnie J said:
I consider that an appropriate starting point for a sentence is one of 35 years' imprisonment. I will reduce that sentence to take account of your past cooperation, your plea of guilty and such other matters of mitigation as may be found to one of 27 years' imprisonment. I specifically deduct a further two years for your possible future cooperation.
You should clearly understand that in the event you are called upon to honour your promise of future cooperation and do not do so, that period of two years may be reimposed on your sentence and the nonparole period also adjusted.
4 Under s 21E, if the court reduces an offender's sentence or non-parole period, then it must state the sentence or non-parole period that would have been imposed were it not for that reduction. In deciding an appeal, this court has the power, under the Criminal Appeals Act 2004 (WA) to make any order it sees fit, and the power to substitute a decision that ought to have been made by the Court below. There is no reason to depart from the figure of 2 years, fixed by McKechnie J as an appropriate allowance for possible future co-operation. We would therefore fix that period for the purposes of s 21E.
(Page 5)
5 The sentence imposed on Mr Lau was one of 25 years with a 16-year non-parole period. In practical terms, in the event that requests for future co-operation are not complied with, 2 years will be added to Mr Lau's sentence, resulting in a term of imprisonment of 27 years. The non-parole period to be served in this event will be 17 years 3 months.