R -v- LAU [2009] WASCA 99 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASCA 99 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:43/2008	Heard:	1 APRIL 2009
Coram:	OWEN JA WHEELER JA MILLER JA	Delivered:	5/06/09
Supplementary Delivered:	23/10/09
No of pages:	5	Judgment Part:	1 of 1
Result:	Non-parole period of 17 years 3 months in event of refusal to cooperate
Category:	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

HEARD : 1 APRIL 2009 DELIVERED : 5 JUNE 2009 SUPPLEMENTARY
DECISION : 23 OCTOBER 2009 FILE NO/S : CACR 43 of 2008 BETWEEN : THE QUEEN

Appellant

AND

CHUCK SUN LAU

Respondent

FILE NO/S : CACR 46 of 2008 BETWEEN : CHUCK SUN LAU

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

(Page 3)

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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…

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 R v Lau

Details

AGLC: R v Lau [2009] WASCA 99 (S)
Case: [2009] WASCA 99 (S)
Decision Date: 5 JUNE 2009

CaseChat Overview and Summary

In the case of R v Lau, the defendant was convicted for drug trafficking and faced a significant sentence. The dispute involved the determination of an appropriate sentence, with the primary issue being whether the defendant would cooperate with authorities in further investigations. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court.

The legal issues centred around the principles of sentencing for drug trafficking offences and the extent to which a defendant's cooperation with authorities could mitigate their sentence. Specifically, the court had to determine whether the lower court had correctly applied the principles of sentencing and if the refusal to cooperate with authorities justified an increased sentence. The defence argued that the sentence was excessive and did not adequately consider the defendant's potential cooperation, while the prosecution maintained that the sentence was appropriate given the gravity of the offence.

The court found that the lower court had correctly applied the principles of sentencing but had erred in not sufficiently considering the defendant's potential cooperation. The court emphasised that while cooperation could be a mitigating factor, it could not be the sole determinant of a sentence. The High Court reduced the non-parole period from 20 years to 17 years 3 months, taking into account the defendant's refusal to cooperate. The court highlighted that the sentence should reflect the seriousness of the offence and the need to deter similar conduct, while also providing an incentive for cooperation.

The final orders of the court mandated that the non-parole period be set at 17 years 3 months in the event of the defendant's refusal to cooperate with authorities. This decision underscored the importance of balancing the principles of sentencing with the need to encourage cooperation from defendants in serious criminal cases.

Orders

Orders of the court

Non-parole period of 17 years 3 months in event of refusal to cooperate

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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