Criminal Appeal Act 1912

Kar Wah Lau v R

Written submissions on behalf of the appellant 1. The appellant adopts his grounds for appeal as his submission before this court. 2. It is respectfully submitted that the sentencing decision at first instance suffers from a disparity of penalty as between the co-offenders. Disparity is a well known ground of sentencing appellate review and even where the sentence is not manifestly excessive, the appellant on a severity appeal can succeed where the court considers that the disparity is such as to give rise to a justifiable sense of grievance Lowe v The Queen (1984) 154 CLR 606. Of course, in relation to co-offenders there may be different facts or gravity; but in the present case, the objective facts point to a lower degree of seriousness in relation to the conduct of the appellant when compared to that of the co-offenders. The appellant gave evidence and expressed contrition from the witness box (cf. Mr. Lin); he was involved in the operation for a considerably shorter period than the others; he was not the entrepreneur or the organizer, rather the cook. In R v Darrell Terry McNaughton (2006) NSWCCA 242 it was held by Spigelman CJ that it is authoritatively established that the common law principle of proportionality, propounded in Veen v R (No.2) 77 ALR 385, requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances. (Hoare v R (1989) 167 CLR 348 at 354.) In Markarian v R (2005) 215 ALR 213 McHugh J held that the principle of proportionality is one of the fundamental principles of sentencing law [at 69]. It is therefore anomalous that Mr. Lau was given a heavier sentence than the others. This, it is submitted constitutes appellable error. 3. The sentence of Mr. Lo occurred before the same sentencing Judge on 16 June 2006. His Honour found that Mr. Lo was essentially a labourer, to shop, assist others in the shopping, to remove garbage from the house where the manufacturing process was taking place and to run

around at the request of others (p.2). He was, according to the judge at first instance, an aider and abetter of the offence. Mr. Lo, so it was held, was actuated by the desire for financial benefit (p.7). But there were special circumstances in relation to the non-parole period and the head sentence was set at 6 years, with a non-parole period of 4 years (p.8). 4. Mr. Lin and Mr. Lau were sentenced by the sentencing judge on 24 November 2006, having pleaded guilty to offences concerned with the manufacture of a prohibited drug, namely methylamphetamine. His honour drew attention to the dichotomy between the charges, namely that Mr. Lau pleaded guilty to actual manufacture of a large commercial quantity of the proscribed drug but Mr. Lin pleaded guilty to knowingly taking part in the manufacture of a commercial manufacture quantity of that drug. It was pointed out by his Honour that the maximum penalty differed. That distinction does not displace the fact that the appellant was a cook where as others were involved in the entrepreneurial and organizational activity in the manufacture of the illegal substance. The appellant was not a ringleader. In Markarian v R (2005) 215 ALR 213 McHugh J held that the common law should not accept the two-tier approach to sentencing as superior to the method that in R v Williscrof [1975] VR 292, which recognised the fact that in the end sentencing depends on the judges assessment of what is the correct sentence, not an arithmetical exercise. McHugh J found the learned judge in the Court of Criminal Appeal to have erred in this regard. We submit that his honour erred by sentencing Mr. Lau, the cook to a higher sentence than the others, whose roles were more significant. 5. Any reading of the agreed statement of facts demonstrates that Mr. Lau was relatively inactive, apart from the process of manufacture itself, in the operation and that the real actors included Mr. Lin, Mr. Gan and Mr. Lo. The appellant was not a ringleader and yet, we submit, erroneously was the subject of a substantially more severe penalty than his co-offenders received. This starkly raises the question of disparity and a legitimate sense of grievance on the part of the appellant. For example the unchallenged evidence from Mr. Lau was that he only learnt that he had been given the task of manufacturing the substance once he came to Australia although he had been asked by a triad organization to bring filter papers to this country and he agreed because of concerns as to what would happen if he refused (p.2). It is submitted that his honours finding that Mr. Lau knew before he came to Australia that he was to act as a cook is contrary to the evidence before the sentencing judge (see the finding at p.3). 6. Mr. Laus evidence (p.3 of transcript of 3 November 2006, line 20) was that he had undertaken to help somebody to bring filter paper to Australia but after arriving he learnt that he had to perform other duties, involving carrying out a chemical process (line 31). He had not

been involved in undertaking this process prior to coming to Australia (p.4, line 5). He says in his evidence that it was not possible to decline to perform this task because if he did not do it, he could not return to Hong Kong (p.4, line 35). He was afraid of the consequences (p.4, line 40). Although Mr. Lau conceded in cross examination that he was suspicious about being asked to bring filter paper to Australia (p.7, line 50) nothing in the cross examination of Mr. Lau negates the evidence given in chief summarized above. There was no real or substantial Brown v Dunn (1893) 6 R 67 cross-examination of the appellant. 7. The submission of his counsel (p.12, line 45) was correct: In my submission he does not occupy a particularly high role in the hierarchy and I would ask your honour to find that he is certainly on the bottom side of, 50/50 in terms of his position. 8. The submission put by his counsel at (p.13, line 25), that there were special circumstances namely that Mr. Lau was a foreign national in an Australian gaol does not seem to have been expressly addressed by the sentencing judge and yet this was a relevant matter, specifically applied in the case of Mr. Lo. Section 21A(1)(c) of the Crimes (Sentencing Procedure) Act specifically requires the court to take into account, in addition to the mitigating factors referred to in s21A(3), any other objective or subjective factor that affects the relative seriousness of the offence. Furthermore, s21A(1) goes on to say that The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. In R v Way [2004] NSWCCA 131 the court held that the s21A factors are not confined to those that are specifically identified in s21A(3) and that s54B(3) is not to be read down as restricting consideration to those factors [at 103]. Section 21A(3) is therefore not meant to operate as an exhaustive or exclusive code as they make it clear that existing statutory and common law factors may still properly be taken into account in determining a sentence even though they are not listed in s21A(3). This is reaffirmed in the Second Reading Speech of the AttorneyGeneral (Parliamentary Debates, Legislative Assembly, 23 October 2002, at 5813). In R v Way [2004] NSWCCA 131, the court held that this might include hardship to the family where that qualifies as exceptional hardship (R v T (1990) NSWCCA Unreported). Mr. Lau is a foreign national in an Australian gaol and his family who depend on him is back in Hong Kong. As such we submit that his

honour erred in failing to take into account this hardship to the family and the appellant. 9. Counsel for the appellant was correct in submitting (p.13, line 31) that it is relevant that Mr. Lau gave sworn evidence in the witness box and exposed himself to cross examination yet, nothing in the cross examination detracted from the substance of the submissions put on his behalf. 10. On all of the evidence, the sentencing judge should have concluded that Mr. Lau was not an organizer but, rather, others were. 11. The balance of the evidence indicates that Mr. Lau was pressured by triads to engage in the conduct to which he has pleaded guilty and that this ought to have been regarded as a significant mitigating factor. Yet, despite some equivocal statements, his honour essentially rejected the duress argument. In regard to duress, in Zafritos Makrynikos v R (2006) NSWCCA 170 Hislop J adopted the case of R v Abusafiah (1991) 24 NSWLR 531 whereby Hunt J (with whom Gleeson CJ and Mahoney JA agreed) suggested a form of directions that should be given in respect of the defence of duress. The direction was relevantly: 1) What the Crown must establish is one or the other of two things. It does not have to establish both of them. The first is that, when the accused did those acts, there is no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him or upon his family if he did not do those acts. 2) If the Crown has failed to eliminate that particular reasonable possibility, it must establish in relation to any such threat which may reasonably have been made that there is no reasonable possibility that such was its gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did Abusafiah was quoted with approval in R v Pimentel (1999) 110 A Crim R 30; [1999] NSWCCA 401 (Spigelman CJ, Dunford and Hidden JJ). Given the transcript of Mr. Laus testimony in regards to his fear of the consequences should he not perform the task that was asked of him and the thought of never being able to return to Hong Kong, we submit that the first ground of the above mentioned directions is not established. Furthermore, his family resides in Hong Kong and are susceptible to harm from the Hong Kong based triads.

The triads are a Chinese secret society usually involved in criminal activities (SOED, Vol 2, p.3386) yet although the sentencing judgment seemed prepared to accept the appellants fear of such a body, was somewhat equivocal on the question of duress. In regard to the second ground, given that the triads caused duress, we submit that a person of ordinary firmness of mind and will, and of the same sex and maturity of the accused, would have yielded to that threat in the way that Mr. Lau did. 12. His honour did not take account of the positive statements contained in the psychologists report, which were not the subject of any challenge by the Crown. That is, the psychologist took the view that: Mr. Lau has a low risk of recidivism He had been manipulated into committing the offence He would experience greater hardship in serving a custodial sentence than most other inmates.

His honour erred in failing to take into account that Mr. Lau had a low risk of recidivism given that in Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 said that The function of the criminal law is to protect the community from crime. This follows s3A(c), which states that sentencing is to protect the community from the offender. With the psychologist report stating that Mr. Lau had a low risk of recidivism, this should have been taken into account by his honour when sentencing. The seriousness of having not taken into account a relevant consideration was held by Kirby J in Markarian v R (2005) 215 ALR 213 to be a rudimentary error in the exercise of a sentencing discretion (at 102). In House v R (1936) 55 CLR 499 at 505 it was held by Dixon, Evatt and McTiernann JJ that If [the judge] does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 13. Accordingly the appeal should be upheld.