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[2003] NSWCCA 65
respondent. Leave to appeal granted; appeal dismissed. The five-year sentence with a three-year non-parole period remained undisturbed: [1], [23]-[25].
The Court of Criminal Appeal allowed Liu to bring his sentence appeal but dismissed it. It held that, while his English-language concerns were considered, he confirmed after assistance that he understood the plea options and did not want to withdraw his guilty plea. The Court therefore assessed the sentence on the basis of deemed supply, not personal use. Given the quantity of cocaine, the need for deterrence and the other sentencing matters, it found the sentence was not shown to be manifestly excessive.
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In R v Qin Liu [2003] NSWCCA 65, the New South Wales Court of Criminal Appeal considered an application for leave to appeal against sentence. Liu had been sentenced in the District Court to five years' imprisonment, with a non-parole period of three years, after pleading guilty to supplying not less than the commercial quantity of cocaine. The sentence was imposed on 19 February 2002: [1].
No linked legislation citations have been extracted yet.
Three other matters were taken into account on a form 1: possession of MDMA, having a knife in a public place, and possessing $705 suspected of being stolen or unlawfully obtained: [1]. The judgment records that a police surveillance operation led to a search of Liu's residence. Officers found almost half a kilogram of cocaine, smaller quantities of drugs wrapped in foil, scales with traces of cocaine, a knife and the cash: [2].
At sentence, the judge took account of Liu's early guilty plea, limited intelligence assistance to police, lack of prior convictions and history of poly-drug abuse: [3]. The appeal focused on whether the sentence was too severe and whether Liu's limited English, particularly during the preparation of a pre-sentence report, meant that the sentencing process proceeded on a mistaken view of his understanding and remorse.
The pre-sentence report had been prepared without an interpreter. It recorded that Liu said he thought he was being sentenced for possession rather than supply, said the cocaine belonged to another person, and denied owning the scales: [5]. By contrast, a psychologist's interview took place with an interpreter. The report recorded that Liu said an acquaintance had given him the cocaine and that he had been using it as his own supply: [7].
At the appeal hearing, Liu appeared in person with an interpreter. He raised concerns about his solicitor's explanation of paperwork and the pre-sentence report's account of his position: [10]. He also said he had understood that the sentencing judge would give him a combined 30 per cent reduction for his assistance and early plea: [13]. The Court arranged a brief consultation with a public defender and a Legal Aid officer after Liu suggested that he had understood the case as personal possession rather than deemed supply. Following that consultation, he confirmed that he understood the options and the significance of deemed supply, and chose not to seek to withdraw his guilty plea: [11]-[12].
Wood CJ at CL delivered the principal reasons. Studdert J agreed with the orders proposed: [24]. The Court granted leave but dismissed the appeal: [23]-[25].
The key procedural and substantive point was that Liu did not seek to go behind his guilty plea. The Court had raised whether, if given the opportunity, Liu could have attempted to rebut the deeming element under s 29 of the Drug Misuse and Trafficking Act 1985: [11]. But after the Court arranged a consultation and confirmed Liu understood the available options, he elected to continue with a sentence appeal only: [12]. The Court then assessed the appeal on the footing that the plea remained in place.
The Court stated that, where an offender does not seek to go behind the plea, success required a demonstration that the sentence was “manifestly excessive”: [19]. This framed the appeal. It was not enough to show that another sentence might have been available. The question stated by the Court was whether the sentence fell outside the legitimate range of sentencing discretion.
The Court treated the offence as serious. The cocaine quantity was almost twice the commercial quantity, and the Court said the case called for significant general and specific deterrence: [19]. It also rejected drug addiction as a mitigating factor in this case, relying on R v Valentini (1989) 46 ACR 23: [19]. That is a case-specific application recorded in the judgment, not a full discussion of the scope of that authority.
The nature of the plea also mattered. Relying on Regina v Pilley (1991) 56 ACR 202, the Court said that a person convicted of, or pleading guilty to, a deemed-supply offence must be sentenced on the basis that the drug was possessed for supply: [20]. Accordingly, Liu's reported assertion that he used the cocaine himself did not permit the sentencing court to treat the offence as mere personal possession while the deemed-supply plea remained operative.
The Court also considered the concern about contrition. The sentencing judge had said Liu had not demonstrated contrition, relying on the pre-sentence report's statement that he accepted no responsibility: [14]. The appeal judgment noted, however, that the judge did not wholly disregard remorse. The guilty plea was found to have utilitarian value and to demonstrate “to some degree some contrition”: [17]. The sentencing judge also made a favourable finding about Liu's motivation to rehabilitate himself in prison, which affected the relationship between the head sentence and non-parole period: [17]. The Court found no additional evidence of remorse in the psychologist's report or elsewhere: [15]-[16].
Finally, the sentence had to reflect the form 1 matters, with the judgment referring to the Court's guideline judgment in the Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999, Number 1 of 2002: [21]. As to the asserted 30 per cent combined discount, the Court observed there was nothing on the record showing that such a representation had been made. It added that such a discount would have been excessive and unjustified in the circumstances: [22]. On the whole, the Court found the sentence within the legitimate range: [23].
This judgment does not present a broad account of the law before and after the decision. It applies three cited sentencing authorities or sources to the facts before it. Any description of a wider change in the law would go beyond what the judgment establishes.
The first stated proposition concerns deemed supply. The Court relied on Regina v Pilley for the rule that, when a person is sentenced following conviction or a guilty plea for a deemed-supply offence, the sentencing basis is possession for the purpose of supply: [20]. In this case, that meant the court could not sentence Liu as though his plea were to possession for personal use. The appeal reasons do not explain the statutory deeming mechanism in detail or decide the underlying facts necessary to rebut it.
The second proposition concerns addiction and mitigation. The Court stated that Liu's drug addiction was not a mitigating factor, citing R v Valentini: [19]. The reasons do not elaborate on the facts or reasoning in Valentini, so the reach of that authority cannot be developed from this judgment alone.
The third sentencing reference concerns the treatment of form 1 matters. The Court said the sentence needed to reflect those matters in accordance with the cited guideline judgment: [21]. The reasons do not reproduce the guideline or explain its detailed operation. They establish only that the guideline was treated as relevant to the sentencing assessment in this case.
The judgment's own procedural treatment is also significant. It distinguishes between a sentence appeal that leaves a guilty plea intact and an attempt to challenge the plea or the basis of conviction. The Court raised the possibility of a s 29 issue, but did not resolve it because Liu confirmed that he understood his options and chose not to withdraw his plea: [11]-[12]. The decision therefore does not determine whether Liu could in fact have rebutted the deeming element.
Nothing in the supplied judgment establishes how later courts have applied, limited or reconsidered these propositions. It is therefore possible to describe the rules applied in 2003, but not to claim from this source alone that they remain unchanged or have been followed subsequently.
At [19], Wood CJ at CL stated: “To succeed on this application in circumstances where the applicant does not seek to go behind the plea, it is necessary that he demonstrate that the sentence was manifestly excessive.” In plain English, because Liu kept his guilty plea in place, he had to show that the sentence was clearly outside the proper sentencing range, rather than simply argue for a lower sentence.
At [20], the Court said it was “not open to the sentencing court to deal with the matter on any basis other than that the offender had the drug in his or her possession for the purpose of supply.” In plain English, a sentencing judge could not treat a deemed-supply guilty plea as if it were only a personal-possession offence.
At [17], the Court recorded that the sentencing judge found that the plea demonstrated “to some degree some contrition on the prisoner's part.” This qualifies the sentencing judge's earlier statement that Liu had not demonstrated contrition. The appeal court's account is that the judge did give the plea some weight as evidence of remorse, even though the pre-sentence report had described Liu as not accepting responsibility.
At [22], the Court said there was nothing on the record showing that the sentencing judge had promised a combined 30 per cent discount, and that such a discount would have been “quite excessive and unjustified” on these circumstances. In plain English, the Court did not accept that the record supported Liu's account of a promised reduction and considered the proposed reduction too large in this case.
At [23], Wood CJ at CL concluded that “the sentence fell entirely within the legitimate range of sentencing discretion.” This was the immediate basis for dismissing the appeal, after granting leave.
The most direct fit is a sentence appeal following a guilty plea to a deemed-supply drug offence, where the appellant does not seek to withdraw or challenge the plea. The decision says that, in that situation, the sentence appeal is assessed on the basis that the offence involved supply, and the appellant must show manifest excess: [19]-[20].
The judgment also speaks to a sentence involving a quantity of drugs substantially above the commercial threshold, where deterrence is important. Here, the quantity was almost twice the commercial quantity, and the Court expressly identified the need for significant general and specific deterrence: [19]. That factual feature is central to the reasoning and should not be reduced to a general rule that all drug cases require the same sentence.
Another potentially relevant pattern is a case where an offender has limited English and claims that the pre-sentence report misunderstood their answers. The Court examined the interpreter arrangements, the contents of the reports and what the applicant confirmed at the appeal hearing: [4]-[12]. The judgment's approach was fact-specific. It does not establish that a report prepared without an interpreter is necessarily reliable or unreliable.
The decision may also be relevant where a sentencing judge considers remorse alongside a guilty plea and a pre-sentence report indicating non-acceptance of responsibility. The Court reviewed the full sentencing record and noted that the judge had given the plea some credit as contrition: [14]-[17]. The judgment does not state that a guilty plea always proves remorse.
Finally, the case involved form 1 matters and a reference to a guideline judgment governing their sentencing treatment: [1], [21]. The decision may be relevant where comparable sentencing issues arise, but the actual guideline's terms are not set out in this judgment.
The supplied judgment contains no later decisions discussing R v Qin Liu. It was delivered on 17 March 2003, and the supplied material provides no subsequent case history. Accordingly, it is not possible, from this source alone, to say whether later courts have followed, distinguished, confined or questioned its reasoning.
Within its own reasons, the Court relied on Regina v Pilley for the deemed-supply sentencing basis, on R v Valentini concerning drug addiction as mitigation, and on the Attorney General's guideline judgment concerning the form 1 matters: [19]-[21]. These are the authorities and sources the Court applied in reaching its decision. The judgment does not describe later treatment of any of them.
For professional use, the key research distinction is between what this 2003 decision actually decided and what later authority may have done. The judgment decides the appeal before it, on Liu's plea, the evidence described and the sentencing record. It does not itself provide a history of subsequent cases or establish the present status of each cited proposition.
The first unresolved question is whether Liu could have rebutted the deeming element under s 29 of the Drug Misuse and Trafficking Act 1985. The Court expressly raised the possibility but did not decide it because Liu chose not to withdraw his plea: [11]-[12]. The judgment therefore offers no conclusion on the evidence needed to rebut the deeming element or on how Liu's own-use account would have been evaluated.
A second question is the precise effect of the interpreter's absence during the preparation of the pre-sentence report. The Court recorded that the report was prepared without an interpreter and considered the language concerns alongside other evidence: [5]-[12]. It did not formulate a general rule about when an interpreter is required for such an interview, or what consequence follows if a report is affected by a language misunderstanding.
Third, the reasons do not explain the detail of the guideline judgment on form 1 matters. They say only that the sentence needed to reflect the form 1 matters in accordance with that judgment: [21]. The applicable guideline's full content and its operation in other cases cannot be reconstructed from the supplied text.
Fourth, the judgment does not set out the detailed sentencing range for cocaine supply at the quantity involved. It concludes that the sentence fell within the legitimate range, but does not provide a tariff, comparative cases or a numerical methodology: [19], [23]. The result should therefore be read as an application to the facts and sentencing record described, not as a complete sentencing guide.
Finally, the reasons do not resolve the asserted 30 per cent discount beyond noting the absence of support on the record and the Court's view that such a discount would have been excessive on these circumstances: [22]. They do not establish what was said in communications not recorded in the transcript or prescribe a general discount for other pleas or assistance.
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CITATION : R v Qin Liu [2003] NSWCCA 65 HEARING DATE(S) : 17/3/03 JUDGMENT DATE : 17 March 2003
JUDGMENT OF : Wood CJ at CL at 1; Studdert J at 24 DECISION : Leave to appeal granted. Appeal dismissed.
CATCHWORDS : CRIMINAL LAW - Supply prohibited drug - plea of guilty - appeal against severity of sentence - absence of interpreter at certain times - whether applicant understood plea, instructions by solicitor, and pre-sentence report. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 CASES CITED : Regina v Pilley (1991) 56 ACR 202 R v Valentini (1989) 46 ACR 23 PARTIES : Regina Qin Liu FILE NUMBER(S) : CCA 60087/02 COUNSEL : D M Howard (Crown) Applicant in Person SOLICITORS : S E O'Connor
LOWER COURT District Court JURISDICTION : LOWER COURT 60087/02 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER :
WOOD CJ at CL STUDDERT J
Monday 17 March 2003 Regina v Qin Liu Judgment 1 HIS HONOUR: The applicant seeks leave to appeal against the severity of a sentence of imprisonment for five years with a non-parole period of three years which was imposed upon him by Sorby DCJ on 19 February 2002. This followed upon his plea of guilty to one count of the supply of not less than the commercial quantity of cocaine. Three other matters, namely the possession of a prohibited drug, MDMA, having a knife in his possession in a public place and having property in possession suspected of being stolen or unlawfully obtained, namely $705, were taken into account on a form 1. 2 The applicant was arrested in the course of a surveillance operation which culminated in a search of the premises where he lived. Australian Federal Police agents found in those premises a box containing almost half a kilogram of cocaine, some small quantities of drugs wrapped in aluminium foil and a pair of scales upon which traces of cocaine were found. Additionally, there were recovered the knife and the cash previously mentioned. 3 In sentencing the applicant, his Honour took into account his early plea of guilty, some limited assistance of an intelligence nature, which he had supplied to police, the absence of any prior criminal record and the fact that he had a history of poly-drug abuse. 4 It was evident from the attempts by Australian Federal Police agents to interview the applicant that he had a limited command of the English language at the time of his arrest, which occurred on 29 June 2001. 5 A presentence report was prepared on 16 January 2002, without the benefit of an interpreter, in the course of which its author recorded the applicant's attitude to the offence, observing: " Although Mr Liu pleaded guilty to the offences discussion regarding his offending behaviour revealed that he does not accept any responsibility. He claimed that he believed that he was being sentenced for possession of a drug rather than supply. He went on to claim that the cocaine found in his flat belonged to another person and that he was keeping it at his premises for that person. Mr Liu stated that unbeknown to that person, he was regularly using the cocaine to maintain his drug habit. Mr Liu further claimed that the scales found at his home were not his. With regard to the knife, he claimed that he had used this for the purpose of eating fruit and that it was not for any sinister purpose, adding that his cocaine usage had caused him to be confused and he had forgotten that he had the knife ." 6 In his interview with Australian Federal Police agents, he had in fact said in relation to the knife that was in his possession, "only for food, this not weapon." That exchange did tend to indicate that he had some capacity to communicate in English. 7 In an interview conducted with a consulting psychologist, Gregory Fathers, with the assistance of an interpreter, the applicant was recorded as saying that, "the quantity of cocaine in his possession had been given to him by an acquaintance" and that he had been, "using it as his own supply." 8 Each of these documents was tendered before his Honour in the course of the sentencing proceedings, in which he was represented by Mr P. Murphy. 9 It would appear that the interpreter did not arrive at court until counsel had commenced their addresses before his Honour. The transcript of the proceedings does, however, suggest that there was then a short adjournment of the proceedings, although whether that was due to the arrival of the interpreter remains unclear. 10 The applicant appeared in person before us, although with the assistance of an interpreter. His attention was drawn to the letters supplied to the Court in which he had set out the various matters relied upon in support of his application to the effect that:
(a) His solicitor had not considered the case properly and that, after the submissions, he was asked to sign certain paperwork which was not explained thoroughly to him.
(b) The officer of the Probation and Parole Service who had prepared the presentence report had misunderstood his replies due to his limited fluency in the English language, and
(c) The sentencing judge had sentenced him to a longer term than was appropriate by reason of the observations in the presentence report concerning his lack of remorse, yet he had been unable, during the interview with the author of that report, to convey what he claimed to have been considerable remorse on his part. 11 In addition, this morning, he indicated that he considered that he had stood for sentence only upon the basis that the drugs had been in his possession for his personal use and not for supply. That invited the question whether, had he been given the opportunity to do so, he could have satisfied the requirements of s 29 of the Drug Misuse and Trafficking Act 1985 to rebut the deeming element. 12 Being concerned that the applicant might not understand fully the implications of any such submission, the Court arranged for him to have a brief consultation with a public defender and with an officer from the Legal Aid office who were present in court in relation to another matter. We were assured by Ms Burgess, and this was confirmed by the applicant, that he understood the options available to him as well as the significance of what was involved in an offence of deemed supply, and did not seek to withdraw his earlier plea of guilty. On the contrary, he preferred to proceed with the appeal being confined to one relating to sentence. 13 He submitted that it was his understanding that the sentencing judge had indicated that he would receive a combined discount of thirty per cent in relation to his assistance and his early plea. 14 It is evident that his Honour took into account the contents of the presentence report in relation to the applicant's contrition. In this respect his Honour said: " The prisoner has not demonstrated before me any contrition for his offence. On the basis of the probation and parole report the prisoner does not accept any responsibility."
His Honour went on to refer to the passage in the pre sentence report, extracted above. 15 The version which the applicant had given to the psychologist differed to a degree, although not significantly in relation to any display of contrition or remorse on his part, insofar as he had there asserted that the cocaine had been given to him by an acquaintance and that he was using it as his own supply. 16 There were no additional indications in this report in relation to any feelings of remorse or contrition, nor was any evidence otherwise placed before the Court in this respect. 17 In relation to contrition or remorse it is not correct that his Honour entirely discounted that factor since he expressly found that the plea, not only had a utilitarian benefit, but did demonstrate "to some degree some contrition on the prisoner's part". Moreover, there was a positive finding in the applicant's favour, leading to a considerable reduction in the ratio between the non-parole period and the head sentence, arising out of his Honour's acceptance that he had a motivation to rehabilitate himself in prison. 18 The psychologist's report makes it clear that the applicant understood that the case against him was one of deemed supply. Upon the evidence available, that was to my mind the only basis upon which he stood for sentence. 19 To succeed on this application in circumstances where the applicant does not seek to go behind the plea, it is necessary that he demonstrate that the sentence was manifestly excessive. I am not persuaded that the applicant has shown that to be the case. The offence was serious in that it involved an amount of cocaine which was almost double the commercial quantity, and the case was accordingly one which called for a significant element of general and specific deterrence. In that regard, the fact of the applicant's own drug addiction did not constitute a mitigating factor, R v Valentini (1989) 46 ACR 23. 20 Moreover, as was established in Regina v Pilley (1991) 56 ACR 202 where a person is convicted of, or pleads guilty to, a deemed supply offence it is not open to the sentencing court to deal with the matter on any basis other than that the offender had the drug in his or her possession for the purpose of supply. 21 Additionally, it was necessary that the sentence in this case reflect the fact of the form 1 matters in accordance with the guideline judgment of this Court in Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 Number 1 of 2002. 22 In relation to the suggestion that his Honour indicated that the applicant was to receive a thirty per cent combined discount, I observe that there is nothing on the face of the record to indicate that anything was said to that effect. Such a discount would, in my view, in the circumstances of this case, have been quite excessive and unjustified. 23 I am satisfied that the sentence fell entirely within the legitimate range of sentencing discretion and while I would grant leave to appeal, I would dismiss the appeal. 24 STUDDERT J: I agree with the orders proposed. 25 WOOD CJ AT CL: The orders of the Court will therefore be as I have indicated. That means your appeal has been dismissed Mr Liu.
Last Modified: 05/12/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
R
Qin Liu
Leave to appeal granted; appeal dismissed. The five-year sentence with a three-year non-parole period remained undisturbed: [1], [23]-[25].