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
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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 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.

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.

R v Lau

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established