Citation: Lau v R [2010] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 16 March 2010
Judge(s): McClellan CJ at CL, James J, Davies J
Background
The applicant pleaded guilty to manufacturing not less than the commercial quantity of methylamphetamine (8.869 kilograms), an offence under the Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The District Court sentenced him to 12 years imprisonment with a non-parole period of 9 years. The sentencing judge found that he was the principal "cook" in a sophisticated drug manufacturing operation, rejecting his claim that he had been coerced and had no prior knowledge of the task.
Two co-offenders were sentenced at the same time or shortly before. Song Lin was found to have played a general labouring role and was sentenced to 8 years with a non-parole period of 6 years. Kam Wing Lo, sentenced for aiding and abetting the same manufacturing offence, received a head sentence of 6 years and a non-parole period of 4 years.
The applicant appealed on two grounds. First, he argued that the parity principle required a downward adjustment to his sentence having regard to those imposed on Song Lin and Lo. Second, he argued that proceedings had miscarried because of advice his legal representatives had given him about what to tell a psychologist and what to say in evidence regarding his prior criminal history in Hong Kong.
Legal Issues
- Whether the parity principle required the applicant's sentence to be reduced, having regard to the sentences imposed on co-offenders Song Lin and Lo.
- Whether a miscarriage of justice arose from legal advice the applicant received about disclosures to a psychologist and evidence given before the sentencing judge concerning his criminal history.
- Whether the sentencing judge's adverse credit findings were tainted by any miscarriage flowing from that advice, and if so, to what effect.
Decision
On the parity ground, the Court of Criminal Appeal accepted that the applicant had a justifiable sense of grievance by comparison with the sentences imposed on his co-offenders. The Court noted that Song Lin's sentence had itself already been reduced on appeal after a parity comparison with Lo. Accordingly, it was appropriate to adjust the applicant's sentence downward to reflect the proper relationship between his role and those of the co-offenders, even though his role as the principal manufacturer was more serious than theirs.
On the miscarriage ground, the Court examined the advice the applicant had received from his legal representatives about what to say to the psychologist Mr Taylor regarding his Hong Kong criminal history, and about the explanation he gave in evidence to the sentencing judge. The Court found that, even setting aside any issue about that advice, the sentencing judge's concerns about the applicant's credibility were independently justified. By the time the applicant gave evidence before the sentencing judge, he had been told he must tell the truth, and the judge found he was still not being truthful. That finding was open on the evidence.
The Court concluded that the sentencing judge's adverse factual findings about the objective seriousness of the offence were not infected by any miscarriage arising from the legal advice. Those findings rested on the applicant's role in the offence rather than on his credit. Any residual impact of the credit findings on the sentencing outcome was regarded as independently warranted, given the applicant's overall lack of candour.
Orders Made
- Leave to appeal granted and the sentence imposed in the District Court quashed.
- The applicant resentenced to a non-parole period of 8 years with a total sentence of 12 years, commencing 2 January 2005, making him eligible for release to parole on 1 January 2013.
Key Takeaways
- A co-offender who receives a harsher sentence than others of comparable or lesser culpability may have a justifiable sense of grievance sufficient to ground a successful parity appeal, even where the sentencing court properly identified a hierarchy of roles.
- Advice from legal representatives that results in a client giving misleading information to a forensic psychologist or to the sentencing court may raise the question of a miscarriage of justice, but the miscarriage must actually have affected the sentencing outcome to ground appellate intervention.
- Where a sentencing judge's adverse credit findings are independently supported by the accused's conduct before the court, those findings may survive a challenge based on bad legal advice.
- The Court of Criminal Appeal confirmed that special circumstances (justifying a departure from the standard ratio between non-parole period and head sentence) can be established by factors such as a first term of custody and the absence of family support in Australia.
- In applying the parity principle, the Court of Criminal Appeal takes into account not only the original sentences imposed on co-offenders, but also any reduction those co-offenders have themselves obtained on appeal.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 27
Cases:
- Briginshaw v Briginshaw (1938) 60 CLR 336
- R v Do [2005] NSWCCA 209
- R v Wahabzadah [2001] NSWCCA 253
- Taiana v R [2006] NSWCCA 398