R v Lau
[2009] WASCA 99
•5 JUNE 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: R -v- LAU [2009] WASCA 99
CORAM: OWEN JA
WHEELER JA
MILLER JA
HEARD: 1 APRIL 2009
DELIVERED : 5 JUNE 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
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 153 of 2007
Catchwords:
Criminal law - Appeal against sentence - Possession of a commercial quantity of heroin - Being knowingly concerned in the importation of a commercial quantity of heroin - Manifest excess - Cooperation - Guilty plea - Time spent in custody resisting extradition
Legislation:
Crimes Act 1914 (Cth), s 16E(1)
Sentencing Act 1995 (WA), s 87
Result:
CACR 43 of 2008
Appeal allowed
CACR 46 of 2008
Appeal dismissed
Category: A
Representation:
CACR 43 of 2008
Counsel:
Appellant: Mr S D Hall SC
Respondent: Mr T F Percy QC & Mr S D Freitag
Solicitors:
Appellant: Director of Public Prosecutions (Cth)
Respondent: AKN & Associates
CACR 46 of 2008
Counsel:
Appellant: Mr T F Percy QC & Mr S D Freitag
Respondent: Mr S D Hall SC
Solicitors:
Appellant: AKN & Associates
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Allen v The Queen (Unreported, WASCA, Library No 950215; 27 April 1995)
Australia v Ho [2006] BCCA 449
Bellissimo v The Queen (1996) 84 A Crim R 465
Buxton v The State of Western Australia [2009] WASCA 6
Cheung v The Queen (1997) 97 A Crim R 283
Commonwealth of Australia v Ho [2000] BCSC 1744
Lau v Australia [1999] CanLII 5373 BCSC
Lau v Australia and Canada [2002] BCSC 1843
Lau v The Commonwealth of Australia and Canada [2006] BCCA 484
Lau v The Commonwealth of Australia and Canada [2006] BCCA 485
Lau v The State of Australia [2003] BCSC 63
Lau v The State of Australia and Canada [2005] BCSC 1021
Lau v The State of Australia and Tim Stiles [2001] BCCA 40
Ma v The Queen [2001] WASCA 325
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Quach v The Queen [1999] WASCA 210
R v Cheung (Unreported, NSWCCA, 22 March 1991)
R v Ho [2002] BCSC 1575
R v Lam [2005] VSC 98
R v Lee [2007] NSWCCA 234
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Scalise (1985) 7 Cr App R(S) 395
R v Stone (1988) 10 Cr App R(S) 322
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
OWEN JA: I have had the advantage of reading in draft the reasons to be published by Wheeler JA. I agree with those reasons.
WHEELER JA: These are an appeal against sentence by the offender and also a Commonwealth appeal against the same sentence. On 4 March 2008, Lau was convicted on his own plea of guilty to one count of possession of a commercial quantity of heroin and one count of being knowingly concerned in the importation of a commercial quantity of heroin. He was sentenced to a total of 25 years' imprisonment, backdated to 1 December 1996. On 20 May 2008, Miller JA granted leave to appeal in CACR 43 of 2008, the Commonwealth appeal against sentence. On 6 August 2008, Miller JA referred the question of leave to appeal in CACR 46 of 2008, Lau's appeal against sentence, to the hearing of the appeal.
Facts
Lau was born in China and was, at all relevant times, a Canadian citizen. In 1994, Lau was residing in Vancouver and managing an import‑export company. In March or April of that year, Lau and a man named Tommy Ho formed a plan involving the importation of heroin, for which Lau was to receive between CAD$35,000 and $40,000, plus expenses. Pursuant to that plan, Lau and a man named Cheung travelled to Guangzhou in China. On arriving in China, the men were introduced by another man to three seamen, to whom they were to deliver the drugs. Two days after this, Cheung and Lau met with a man named Wan who delivered to them two suitcases containing approximately 47 kg of heroin, of which 32.4 kg was pure heroin, with a wholesale value of approximately $32 million and a street value of approximately $100 million (in 1994). This heroin was then taken to the hotel in which Lau and Cheung were staying, and repacked into cardboard boxes. Lau, Cheung and the other man then took the boxes to the port and delivered them to the three seamen. The seamen were sailors on the grain ship "MV Trans Aspiration", bound for Canada.
Lau returned to Canada in June 1994. The MV Trans Aspiration was redirected to Australia. In July, Lau returned to China. In September, on Ho's instructions, Lau and Cheung travelled from Hong Kong to Geraldton, via Perth. Once in Geraldton, on 10 September 1994, Lau and Cheung received the heroin from the three seamen. They then drove to Perth and checked into the Toorak Lodge Motel under a false name. On Sunday 11 September, the men returned the hire car they had been driving and hired another. On Monday 12 September, Lau and Cheung checked
into a second motel, the Great Eastern Motor Lodge, retaining their room at the Toorak Lodge Motel. That same day, Lau went to meet a man, who was to purchase some of the heroin, at the Perth International Hotel. The two men went to a public telephone and called Ho, who confirmed the purchaser's identity and instructed Lau to give the purchaser two bags containing heroin. The men then caught a taxi to the Toorak Lodge Motel. While the purchaser waited in the taxi, Lau and Cheung retrieved two bags of heroin and placed them in the boot of the taxi. The purchaser then returned to the Perth International Hotel. Lau telephoned Ho, and then went to the Perth International Hotel on Ho's instructions to count the number of packets of heroin in the two bags.
The purchaser, who was also a police informant, then took those two bags to another room within the hotel where Drug Enforcement Agency officers from New South Wales were waiting for him. Australian Federal Police officers attended and seized the bags, which were found to contain approximately 27 kg of heroin.
The following day, Lau checked out of the Toorak Lodge Motel. On 15 September, Wan flew into Perth. That same day, Lau and his girlfriend (not his wife, who had just given birth to their second child), who had flown into Perth on 12 September, checked into the Perth International Hotel, while Wan and Cheung hired another car and checked into the All Travellers Motor Inn under a false name. On 16 September, the remaining heroin was transferred to Wan's hotel room and a hard plastic suitcase purchased. Wan and Lau then checked into another motel, the Bel Eyre, returned to the All Travellers Motor Inn, transferred the heroin into the suitcase, and took it to the Bel Eyre Motel.
On 17 September 1994, Cheung, Lau and Lau's girlfriend were arrested at Perth International Airport attempting to leave for Hong Kong. Lau's girlfriend was allowed to leave; Lau and Cheung were interviewed and made admissions as to their involvement. Lau also made lengthy statements detailing the roles, as he asserted them to be, of some others. On 18 September, Lau agreed to travel to Geraldton with Australian Federal Police officers to identify the three seamen involved in importing the heroin. On 19 September, following media interest in the arrests, surveillance of Wan was terminated and he was arrested. A bag containing 9.17 kg of powder, 7.6 kg of pure heroin, was located in the room at the Bel Eyre Motel. A further 10.65 kg of powder, 9.21 kg of pure heroin, had been transferred from Wan to two men, who were later arrested with the drug in South Australia.
Until 26 September 1994, Lau had indicated an intention to plead guilty and, if necessary, give evidence against his co‑offenders. On 26 September, Lau changed solicitors and indicated that he would be pleading not guilty. On 27 March 1995, Lau escaped from custody while awaiting a preliminary hearing, which was to deal with him, Cheung and Wan, at Perth Central Law Courts. Only Lau escaped. It is still not clear how this escape was executed, although Lau's brother‑in‑law was convicted of harbouring him following his escape.
Lau initially claimed he believed he was in fact released from custody, having been granted immunity in return for his co‑operation. Upon his eventual return to Australia, he gave a statement detailing some of the circumstances of his escape. It has not, to date, assisted authorities in ascertaining who may have assisted him, and it is of course now unlikely that they ever will do so.
On 28 June 1997, Lau was arrested in Vancouver and remained in custody pending extradition for a period of approximately 10 years. On 8 May 2007, Lau was surrendered to the Australian authorities and returned to Australia.
Co-offenders
A number of Lau's co‑offenders have been imprisoned as a result of these events.
Cheung was convicted after trial of importation of not less than a commercial quantity of heroin and pleaded guilty to possession of not less than a commercial quantity of heroin. Wan pleaded guilty to the same two offences. Cheung was sentenced to 22 years 6 months' imprisonment with a 13‑year non‑parole period. Wan was sentenced to 24 years 6 months' imprisonment with a 16‑year non‑parole period. These sentences included a deduction of 2 years 6 months, a period "scaled up" to represent 20 months each had spent in custody. Without that allowance, the sentences would have been 27 years for Wan and 25 for Cheung. In sentencing these offenders, Malcolm CJ said that "the scale of this importation would warrant the imposition of a sentence of life imprisonment on persons in the hierarchy at the level of Lau and above" (ts 730). Cheung unsuccessfully appealed his sentence in 1997: Cheung v The Queen (1997) 97 A Crim R 283.
The three seamen each pleaded guilty and were each sentenced to 13 years 7 months' imprisonment with an 8‑year 6‑month non‑parole period, after allowing for these pleas, for time in custody and for promised future co‑operation. Two men, who were arrested after transporting roughly half the heroin to South Australia, each pleaded guilty and were sentenced in South Australia to 13 years' imprisonment with a 7‑year non‑parole period.
Attempts were made to extradite Ho: Commonwealth of Australia v Ho [2000] BCSC 1744; however, he was imprisoned in Canada for 18 years for an unrelated drug importation scheme: R v Ho [2002] BCSC 1575. There is currently a warrant for Ho's arrest as he escaped from custody while on day parole: Australia v Ho [2006] BCCA 449.
Sentencing submissions
Before the learned sentencing judge, counsel for Lau explained Lau's involvement in the following way. In 1989, Lau had borrowed CAD$35,000 from Ho in order to start his own business, a restaurant. In 1992, that business burned down and insurance did not cover the debt to Ho, and so Lau began to do some work for Ho, eventually working at Ho's import‑export business. Ho felt Lau was not repaying his debt quickly enough, and so involved Lau in the importation scheme outlined above (ts 19).
The main factor in mitigation put forward by counsel for Lau was the suggestion that had the appellant not travelled to Geraldton for the purpose of identifying the three seamen, they would never have been identified. In relation to time spent in custody in Canada, Lau's counsel argued that this was not an instance where an offender had fought extradition without grounds; rather, the appellant was justified in his challenge to the extradition as he had been led to believe he had been granted immunity from prosecution, and, as such, should be given full credit for time spent in custody.
The Commonwealth submitted before his Honour that while Lau did in fact make admissions, described as "frank and of substantial assistance", these admissions were probably incomplete, particularly with regard to his relationship with Ho and potential reward for his involvement. This assertion was based on the assumption that it is "less than credible" that Ho would have entrusted Lau with his role in relation to a "massive shipment of heroin" unless he had been completely trusted by Ho (ts 44). Further, it was suggested that it is unlikely that Lau would have literally risked his life, had he been caught with the heroin in China, merely to repay a relatively small debt.
On the issue of time spent in custody, the Commonwealth suggested that there may be policy reasons for not crediting the time - first because of the considerable expense incurred by both the Australian and Canadian governments, and second because prosecution cases "don't improve with age" and such a delay as occurred here could prejudice the prosecution's case (ts 56). In addition, the Commonwealth submitted, unlike many other extradition cases, Lau had in fact been charged prior to fleeing to Canada.
Sentencing remarks
His Honour found that Lau "played a leading and vital managerial role in a well‑organised conspiracy to import and distribute a large quantity of heroin destined for the Australian community" (ts 67) and that "Ho seems to have put considerable trust in [Lau] in a way that tends to belie [his] status as one merely paying off a debt" (ts 67). As such, it was "entirely unrealistic" to believe that he would be offered immunity for identifying couriers who "on any view were further down the ladder" than Lau (ts 71). However, while Lau's co‑operation, past and promised, was no doubt motivated by self‑interest, his Honour acknowledged that it is necessary to mark any such co‑operation with a reduction in sentence and non‑parole period, within limits, and, as such, his Honour felt that Lau was entitled to "considerable reduction in sentence" (ts 72).
A number of letters from Lau's family were provided to the court, outlining the effect of his imprisonment upon his children and his elderly parents who are his children's sole carers. His Honour said, in relation to Lau's family's suffering, that "it must not be forgotten that you were quite prepared to visit misery on all the parents of those children who … would have taken the heroin that you imported" (ts 73).
Finally, his Honour addressed Lau's eventual plea of guilty, stating that the evidence against him had "always been overwhelming" and that his escape from custody largely negated any contrition. Further, his Honour said, Lau's plea of guilty was an acknowledgement that his long battle against extradition was pursued on technical grounds, not because he was actually innocent. As a result, while his guilty plea was taken into account as of some worth, it was not worth a great deal (ts 73).
The sentence imposed on Lau was outlined as follows. His Honour would have imposed a life sentence, but because of the plea of guilty and co‑operation, he took 35 years to be an appropriate starting‑point. This was reduced to 27 years as a result of past co‑operation, the pleas of guilty and other matters of mitigation. A further 2 years was deducted for possible future co‑operation, on the understanding that these 2 years could be reimposed if future co‑operation was requested and not provided. This resulted in a sentence of 25 years, backdated to 1 December 1996, approximately 11 years 3 months from the date of sentencing on account of time spent in custody (ts 74).
The appeals
The Commonwealth appeals on two grounds:
1.The learned sentencing judge erred in law by imposing sentences that were manifestly inadequate in all the circumstances of the case.
Particulars
a)The sentences imposed did not adequately reflect [Lau's level of criminal responsibility];
b)[Lau's] sentences were reduced twice for past cooperation.
2.The learned sentencing judge erred in law in exercising his discretion to take all of the time spent in Canadian custody into account in backdating the sentences imposed on [Lau] by failing to properly consider whether anything in [Lau's] conduct in resisting extradition warranted some lesser period of time being taken into account.
Lau also appeals on two grounds:
1.Each of the sentences imposed was manifestly excessive in light of the sentence imposed on the co‑offenders Wan and Cheung when taking into account:
a)Their respective levels of involvement in the offending; and
b)The [mitigating] factors present in [Lau's] case (his past co‑operation and pleas of guilty) but not fully applicable to the case of Cheung or the case of Wan.
2.The learned sentencing judge erred in the exercise of his discretion in not allowing for a greater discount on each of the sentences imposed in respect of:
a)Past cooperation;
b)Plea of guilty;
c)Other matters of mitigation (excluding possible future cooperation).
These grounds raise three issues: whether the sentence imposed was appropriate to Lau's level of criminality; whether the discounts given for mitigating factors were appropriate; and whether the sentence imposed should have been backdated to take into account the entire time Lau spent in custody in Canada.
Level of criminality
Given his level of involvement and the responsibility Lau was entrusted with, and that it was he who was in contact with Ho while in Australia, not Cheung or Wan, it seems clear that Lau was relatively high in the hierarchy of this operation. Even if Wan could be shown to be above Lau in the criminal hierarchy, the fact that there is a person higher in the hierarchy is neither mitigating nor a reason not to impose the maximum sentence where appropriate: Cheung (at 294).
Importantly, the identification of the precise nature of an accused's involvement in an act of importation is not an essential aspect of the sentencing process: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [13]. An offender is to be sentenced for those offences for which he or she has been charged and convicted. It is not necessary to determine their involvement in the overall scheme for importing drugs into Australia: Olbrich at [18] ‑ [19]. This case, and the differing accounts of the detail of the roles played by them given by the various offenders to different sentencing judges, demonstrates the practical difficulties, alluded to in Olbrich at [16], of determining with precision how a person came to be involved in a drug offence, or the precise role played by them.
What was found by the sentencing judge was that Lau was a major co‑ordinator in this operation. He was involved, in China, in repackaging the heroin and delivering it to the three seamen. He was involved in collecting the heroin once it arrived in Australia. He was responsible for hiring cars and checking into a number of motels. He was personally in contact with Ho while in Perth. He, on his own, was trusted with delivering 27 kg of heroin, with a street value of tens of millions of dollars, to the police informant. As pointed out by the sentencing judge, Lau claimed to have been involved in order to pay off a relatively insignificant debt, yet he brought his girlfriend along for the trip. This fits oddly with the degree of anxiety he claimed to have had about the enterprise.
In summary, Wan's role, as described by Malcolm CJ in sentencing, was as follows. Wan met with Tommy Ho in 1994. Tommy Ho gave Wan a pager with which Wan could contact Lau. A week later, on 23 April 1994, Wan arrived in China under instructions to collect a "thing" from someone, and pass that "thing" on to Lau, which he did. He then returned to Canada. In September 1994 Ho told Wan to go to Australia, providing him with CAD$10,000 for his ticket. Some of the remainder was to go to Lau. He flew to Perth and was met by Lau and Cheung. Lau had booked Wan into the All Travellers Motel. He and Lau purchased the suitcase into which the heroin was transferred. Lau gave Wan Ho's telephone number in Hong Kong. Wan was then booked into the Bel Eyre Motel, by Lau, under a false name. Wan then, under instruction from Ho, delivered a portion of the remaining heroin to another man, and was arrested shortly after. Wan was to receive CAD$20,000 for his role in the scheme.
To the extent that it is possible to differentiate between the two men, it would appear that Lau was marginally more involved, and more culpable than Wan.
However, as noted earlier, the truth in such matters will generally remain known only to those involved - and even then, only to a point. No one participant, unless at the very top of the hierarchy, is likely to be fully aware of the role of another. Each participant will be keen to minimise their role in their account to the authorities, which may require the exaggeration of the role of another. We will likely never be in possession of the full facts regarding the origins of this scheme and the offenders' relative roles within that scheme including whether Lau was in fact the manipulative "arch villain" he was painted as during Cheung's trial. All that can be done, then, is to look at the objective, proven facts regarding what each offender actually did. Wan delivered the heroin to Lau and Cheung in China. Lau and Cheung repackaged the heroin and then took the heroin to the seamen. Lau and Cheung contacted the seamen and collected the heroin from them in Geraldton. Lau delivered the bulk of the heroin to the police informant. Lau gave the remainder of the heroin to Wan, who delivered half of this quantity to another man. It would appear, then, that for whatever reason, be it his position in the hierarchy, his greater command of English, or his being in the wrong place at the right time, Lau's confirmed involvement in this scheme was greater than Wan's, even if only marginally so.
In any event, the appellant's complaint was effectively that he should have received a sentence less severe than did Wan, since his role was no more important and since he, unlike Wan, co‑operated and promised future co‑operation. He did in fact receive a lighter sentence, if one looks (as one must in order to ensure proper comparison) at the sentence arrived at before taking account of differing time spent in custody. Comparing those sentences, Wan's "head sentence" was 27 years, and the appellant's was 25. It is true that the difference is entirely accounted for by the 2 years discount which his Honour awarded for future co‑operation, but that was appropriate. Lau's past co‑operation did not, in my view, justify a significant discount and, while Wan had pleaded guilty only shortly before trial, he, nevertheless, pleaded guilty approximately 12 years earlier than Lau. Leaving aside any future co‑operation, they effectively received the same sentence. If, as appears to me, the appellant's role was marginally more significant than Wan's, then his Honour may have been, if anything, a little more lenient towards Lau than was necessary.
In addition to the parity considerations, a review of heroin importation cases suggests that the sentence imposed here was neither excessive nor inadequate. An extensive review of such cases was performed by the New South Wales Court of Criminal Appeal in R v Lee [2007] NSWCCA 234. This review revealed that those who played a relatively senior role in an importation had received a head sentence in excess of 20 years, and up to life imprisonment.
By way of example, a case with a number of similar features to the present matter is that of R v Lam [2005] VSC 98. In Lam, the respondent, like Lau, pleaded guilty; however, the offence in Lam was that of aiding and abetting the importation of not less than a commercial quantity of heroin, rather than being knowingly concerned. The maximum penalty for both offences is life imprisonment. The respondent in Lam flew in to Melbourne from Malaysia and then travelled on to Geelong, where he and his co‑offenders, Teng and a man calling himself Lee, were to meet the ship the "Pong Su". Police intercepted the men soon after they took possession of the heroin. Like Lau, the respondent in Lam was found to be neither at the lower end of the hierarchy nor at the upper end, but sufficiently high to be entrusted with receipt and possession of a large and immensely valuable importation of heroin. Like Lau, the respondent in Lam claimed to have become involved in the importation to repay a debt.
There are also a number of features which distinguish Lau from Lam. The heroin in Lam totalled 123.32 kg of powder, 82.29 kg of pure heroin; however, as the High Court said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [67] ‑ [68], the weight of the narcotic imported is not a factor to be considered above all others in sentencing such offenders, particularly as offenders will often be unaware of the quantity or purity, or even type, of narcotic they are importing. Further, Lau cannot claim to have been ignorant as to the quantity of drug imported, as he was involved in repackaging it in China, while there is no evidence to suggest that the respondent in Lam was aware of the quantity of heroin involved (though he was clearly aware that it was significant). Third, Lau was involved with the transportation of the heroin within China and from China to Australia, while there is no indication that the respondent in Lam was involved prior to his arrival in Australia. In favour of Lau, he provided some co‑operation and promised future co‑operation, while the respondent in Lam did not. The sentence imposed in Lam was one of 23 years with a 16‑year non‑parole period. This is clearly within the same range as the sentence imposed on Lau.
Sentence discounts
The learned sentencing judge stated that, ordinarily, a sentence of life imprisonment would be imposed, notwithstanding mitigating factors such as Lau's guilty plea. However, his Honour went on to explain that a finite sentence would be imposed on account of past co‑operation. He then reduced Lau's sentence from a starting‑point of 35 years to 27 years for past co‑operation, his plea of guilty, and other mitigating factors. This discount is approximately 23%. A further 2 years was then deducted for future co‑operation.
It is argued on behalf of Lau that inadequate discount was given for his past co‑operation, guilty plea, and other mitigating factors, such as his age, young children and unwell parents, and good antecedents.
The Commonwealth, however, submits that too great a discount was given for past co‑operation, and that his Honour actually took this into account twice when sentencing Lau. What his Honour said on this issue was (ts 74):
Ordinarily for a crime of this magnitude the only possible sentence should be one of life imprisonment, notwithstanding the personal matters of mitigation to which I have referred including the plea of guilty. However, because of your past cooperation, I will on this occasion impose a finite sentence.
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.
The resulting sentence, however, is an appropriate one. As noted earlier, it is within an appropriate sentencing range; there is no significant disparity with that imposed on Wan; and it sits comfortably with the comparable case of Lam. It is, as has often been pointed out, an error to attack individual components of a sentencing exercise; the real question is whether the sentence imposed is disproportionate: Allen v The Queen (Unreported, WASCA, Library No 950215; 27 April 1995) at 7 per Kennedy J; Buxton v The State of Western Australia [2009] WASCA 6 at [11]; and see Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37].
Guilty plea
Other than in an exceptional case, some discount for a plea of guilty should be allowed, even in a case in which the plea of guilty is unavoidable and even where unaccompanied by any real remorse or acceptance of responsibility: Moody v French [2008] WASCA 67; (2008) 36 WAR 393 at [38]. The amount of the reduction is discretionary, and the discretion of sentencing judges must be respected by appellate courts: Moody v French at [37]. In Ma v The Queen [2001] WASCA 325 the Court of Criminal Appeal said, in relation to a late guilty plea, at [44]:
[A] late plea of guilty should attract a lower discount. And in my view, the later the plea the greater is the potential for the exercise of judicial discretion in determining the appropriate discount.
Lau's plea of guilty came approximately 13 years after his arrest. The plea was made in the face of a strong prosecution case, and the appellant has demonstrated neither remorse nor acceptance of his responsibility. It cannot be seriously suggested that it should attract any significant discount.
Other matters of mitigation
As to the "other matters of mitigation", the principal consideration in sentencing for drug offences is that of deterrence: Bellissimo v The Queen (1996) 84 A Crim R 465 at 469. Mitigating factors are of little consequence: Quach v The Queen [1999] WASCA 210.
As Sully J said, in his Honour's sentencing remarks in R v Cheung (Unreported, NSWCCA, 22 March 1991) at 9 ‑ 10:
The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.
In the face of such challenges each of the institutional supports of our society has a role to play. That of the courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who, like the present prisoners, engage in drug related crime when they are themselves not drug dependent.
Lau was involved at a high level in the importation of an enormous quantity of heroin into Australia. He was motivated solely by financial gain. Nothing in his personal circumstances outweighs the strong need for general deterrence in a matter such as this. While it is true that he will be required to serve this sentence in a foreign land, away from his children and ailing parents, and while it is unfortunate that his family may suffer as a consequence, that is the risk he took when he chose to involve himself in the importation of heroin into this country.
Sentence – manifestly excessive or manifestly inadequate?
Having regard to the length of the sentence and considerations such parity with co‑offenders, the sentence imposed on Lau was not inappropriate. The only issue in respect of which his Honour did err in a manner requiring correction concerns time spent in custody.
Time served in Canada
The learned sentencing judge backdated the sentence imposed on Lau to 1 December 1996 to take into account time spent in custody. The Commonwealth submits that Lau should not have been credited the full 12 years he had spent in custody, for two broad reasons. First, because the lengthy period he spent in custody in Canada was as a result of Lau's own actions, in escaping lawfully custody and fleeing to Canada, and in mounting unreasonable legal challenges to extradition, such as the argument that he could not be extradited as he had not been extradited within two months of becoming eligible for extradition, despite the fact that it was his own actions that resulted in this delay. Allied to that submission is the assertion that, for reasons of policy, such a discount should not be given, as a delay of this length could prejudice the prosecution case. Further, allowing an offender to delay extradition for such a length, and thereby spend a large part of their sentence in their own country near their family, would encourage other offenders to resist extradition, rather than facilitate the administration of justice by returning to the country in which they had offended. That is particularly so as it is always possible that, during lengthy extradition proceedings, a prosecution case may become so weak (for example, if a witness dies), that it is not possible to proceed.
One of Lau's arguments against extradition from Canada was that he had been offered immunity by the Australian Federal Police in a video‑recorded interview. The Australian Federal Police denied any such offer, or any such interview. Evidence disclosed shortly prior to Lau's sentencing, the diary of an Australian Federal Police officer, suggested that there may have been some form of videotape involving Lau at the time he was in Geraldton to identify the three seamen. It is argued on behalf of Lau that his argument against extradition on the grounds of bad faith on behalf of the Australian Federal Police was therefore partially vindicated. It is not possible to determine in these proceedings what sort of video the diary note is referring to, and the truth or otherwise of Lau's assertion cannot be determined.
In any event, it is submitted, on behalf of Lau, the prosecution's case was not prejudiced, as Lau eventually pleaded guilty. Further, while he did spend that time in custody in Canada, near his family, this must be balanced against the fact that he was in protection, and therefore his time was served under more restrictive and severe conditions.
A total of 11 Canadian cases concerning Lau were provided to the sentencing judge, dating back to 1999. Lau was first committed for extradition by the Canadian court in February 1999, on charges of possession and importation of heroin. He was discharged on the charge of escaping lawful custody.
In the first of these cases, Lau v Australia [1999] CanLII 5373 BCSC, Lau unsuccessfully sought writs of habeas corpus and certiorari on the basis that the judge hearing the rendition hearing did not hold a voir dire in relation to the admissibility of affidavits concerning statements Lau contends he made involuntarily. It was further argued, again unsuccessfully, that rendition violated his right as a citizen to remain in Canada, particularly as he had offered to plead guilty to conspiracy charges in Canada and any sentence imposed in Canada would have been lighter than that expected in Australia. Even at that stage, it was noted that the rendition date had been postponed five months because Lau had changed legal representation two weeks before the hearing date.
The second, Lau v The State of Australia and Tim Stiles [2001] BCCA 40, was an unsuccessful appeal against the first. In December 2001, the Governor‑General of Canada ordered that Lau be surrendered to Australian authorities. At this point, an application was made by Lau that was not included in the file provided to the sentencing judge. This application was for discharge based on the fact that he had not been extradited within two months of his committal. This application was dismissed, and an appeal lodged.
The third Canadian case, Lau v Australia and Canada [2002] BCSC 1843, was another application for writs of habeas corpus and certiorari, and for either an order discharging him, or an order quashing the order of the Governor‑General. This application was based on Lau's personal circumstances, the alleged lack of good faith of the Australian Federal Police which has been discussed previously, and Lau's offer to plead guilty in Canada. The court held that there was an indication of a lack of good faith by the Australian Federal Police and in light of this, the hardship to Lau's children, and the lack of evidence that the Canadian authorities had considered Lau's offer to plead guilty, the order of surrender was not just and ought to be quashed.
The fourth case, Lau v The State of Australia [2003] BCSC 63, addressed the appropriate remedy arising out of the judgment in the third case. It was ordered that the matter be remitted to the Governor‑General for reconsideration. The fifth was simply an application by Lau to be present at the hearing of an application for release pending appeal (the sixth application). "Numerous changes of counsel" were noted. The sixth application was unsuccessful. The judge in that case noted that the delay to that point had been largely Lau's fault. In the meantime, the Governor‑General again ordered Lau's surrender to Australian authorities.
The seventh case, Lau v The State of Australia and Canada [2005] BCSC 1021, was yet another application for habeas corpus, again based upon alleged bad faith, and an application for disclosure of information regarding his attempts to plead guilty in Canada, including information relating to whether the Crown had ever opted to accept a guilty plea within Canada over an extradition. These applications were dismissed.
Cases eight and nine were applications dismissed by the court for lack of jurisdiction, as the matter was before the Court of Appeal. Case 10, Lau v The Commonwealth of Australia and Canada [2006] BCCA 484, was an appeal against the decision in the seventh case. This appeal was dismissed. One of the judges in that case described Lau as the "author of his own misfortune".
The 11th case, Lau v The Commonwealth of Australia and Canada [2006] BCCA 485, was an appeal against the decision in cases eight and nine. This appeal was dismissed. In relation to allegations of conspiracy by Australian and Canadian prosecutors to deny Lau a fair hearing, the court found that "there is simply no evidence to support these allegations".
As can be seen, Lau made numerous unsuccessful attempts to avoid extradition from Canada over a very lengthy period of time. An accused person should not be discouraged from legitimately pursuing legal avenues in opposition of extradition, nor should they be penalised for such attempts. However, cases such as this, where an accused prolongs proceedings beyond what is reasonably necessary, give rise to additional considerations. As his Honour pointed out in sentencing, Lau's guilty plea was an acknowledgment that his long battle against extradition was on purely technical grounds, not because he was innocent (ts 73).
As with a guilty plea, there are a number of reasons why credit ought to be given for not pursuing purely technical opposition to extradition. Such a course may indicate acceptance of guilt and remorse. It may, of course, indicate no more than acceptance of the inevitable, as in the case of a guilty plea in light of an overwhelming prosecution case. As with a guilty plea, the acceptance of lawful extradition has a utilitarian value. The expense of lengthy legal proceedings is avoided and the prosecution case is less likely to suffer prejudice. As it does in relation to a plea of guilty, it is sometimes necessary for the court to evaluate the "worth" of the opposition to extradition, in order to consider what allowance, if any, should be made for time in custody while resisting extradition.
Matters of policy and general deterrence in relation to resisting extradition were raised by counsel for the Commonwealth in the course of Lau's sentencing. McKechnie J said, in response to counsel's submissions (ts 52):
Look, I couldn't agree with you more but I doubt whether this sentence is going to change that. If you have somebody who finds it inconvenient to return to face justice and who has deep pockets or access to deep pockets, the prospect that a judge may not look favourably on their sentence if convicted is weighed against the prospect of not being convicted at all. It's more an argument to suggest, I suggest, for a Court of Appeal and I don't disagree with it but in the end in this case it doesn't seem to have prejudiced the prosecution, partly because he has pleaded guilty and partly because through his admissions it was an overwhelming case. I agree with the principle but I'm not sure it has application in the facts.
That view was in error.
A number of Lau's attempts to avoid extradition can be seen as nothing more than attempts to delay proceedings which lacked merit, and which showed a determination to avoid facing the appropriate consequences of his actions, presumably in the hope that he might be treated more leniently in Canada, or that the prosecution case might collapse (or, perhaps, that he might again escape, as he had in Australia). I would therefore only credit Lau with a portion of time served in Canada. The appropriate credit, in my view, is for the time from his arrest in June 1997 to the time of the Governor‑General's extradition order of 29 December 2001. That is a total of approximately 4 1/2 years. It is my opinion that applications after this date were without merit, being either purely technical, such as the application based upon the failure to remove him from Canada within two months of his committal; or merely the repetition of earlier unsuccessful applications. The principle to apply in such a case is, in my view, that expressed by the Court of Appeal in R v Scalise (1985) 7 Cr App R(S) 395 (followed in R v Stone (1988) 10 Cr App R(S) 322). The court said, at 397 ‑ 398:
[Counsel] invited our attention to cases which have been decided in the past in which this Court has said that time in custody overseas should normally be taken into account. That is clearly right, but the important word is 'normally'. This case is not a normal case at all. If these men had collaborated with the extradition or even if they had not resisted it by way of appeal they would have been back in the United Kingdom to stand trial months and months before they did arrive. The reason they did not come back within a short time after extradition proceedings had started was because of [the co‑offender's] decision to play the system.
Scalise apparently adopted the same "line" as the co‑offender.
I would further credit Lau with time spent in custody prior to his escape from the Central Law Courts, totalling a little over 6 months, and time in custody following rendition, but prior to sentencing, totalling 10
months. The result would be a total deduction from the head sentence of just over 5 years 10 months, which would require backdating it to shortly before 4 May 2002.
However, I would not consider it appropriate to backdate the sentence with that degree of precision. That is, essentially, for two reasons. First, it is difficult to ascertain precisely, to the day, what is and is not legitimate delay, particularly in the context of a foreign legal system. Second, although a substantial part of Lau's time in custody was as a result of his desire to "play the system", he was, nevertheless, in custody, and that fact should be given some weight. Therefore, although it might, on one view, be seen as unnecessarily generous to Lau, I consider it appropriate to backdate the sentence to a somewhat earlier date; being 31 December 2001.
Conclusion
I would refuse leave to appeal in CACR 46 of 2008, the appeal of Lau against the severity of his sentence. I would dismiss ground 1 of CACR 43 of 2008, the Commonwealth appeal against sentence. I would, however, allow ground 2 of the Commonwealth appeal against sentence, set aside the sentencing judge's order that the sentence imposed on the appellant be backdated to 1 December 1996, and in lieu thereof impose an order that the sentence imposed be taken to have commenced on 31 December 2001. The appellant will therefore become eligible for parole in December 2017.
MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Wheeler JA.
I agree for reasons given by her Honour that leave to appeal should be refused in relation to CACR 46 of 2008.
I agree also that the appeal in CACR 43 of 2008 should be dismissed in relation to ground 1, but allowed in relation to ground 2. I agree that the only issue in respect of which the trial judge erred in a manner which requires correction is the conclusion reached by the trial judge in relation to the backdating of the sentence imposed upon Lau.
I respectfully adopt Wheeler JA's analysis of the Canadian cases which deal with Lau's challenges to his extradition.
The history of events reveals that, after his escape from the District Court in Perth on 27 March 1995, Lau was 'on the run' until 28 June 1997,
when he was arrested in Vancouver. He was then placed in custody and remained in custody pending extradition until 8 May 2007, when he was surrendered to Australian authorities and returned to Australia.
Wheeler JA has concluded that Lau should receive a credit for time spent in custody pending extradition between the date of his arrest on 28 June 1997 and the date of the Governor‑General's extradition order of 29 December 2001. This is a period of almost exactly 4 years 6 months.
In backdating Lau's sentence (Crimes Act 1914 (Cth) s 16E(1) and Sentencing Act1995 (WA) s 87), I would make the following allowances and only those allowances:
1.
Date of arrest in Vancouver (28 June 1997) to date of Governor‑General's extradition order (29 December 2001)
4 years 6 months
2.
Time spent in custody prior to escape (17 September 1994 to 27 March 1995)
6 months 10 days
3.
Time in custody following rendition and prior to sentencing (8 May 2007 to 4 March 2008)
10 months
The total of these periods is 5 years 10 months and 10 days.
It therefore seems to me that the appropriate period for the backdating of Lau's sentence is 5 years 10 months 10 days. As he was sentenced on 4 March 2008, I consider that the proper date to which the sentence should be backdated is 24 April 2002.
I would therefore allow appeal CACR 43 of 2008 on ground 2, set aside the sentencing judge's order that the sentence imposed on Lau be backdated to 1 December 1996 and in lieu thereof impose an order that the sentence be backdated to 24 April 2002. Lau would therefore become eligible for parole on 24 April 2018.
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
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
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
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.
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
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.
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.
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.
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