R v Qin Liu [2003] NSWCCA 65

New South Wales Court of Criminal Appeal

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 :

- 5 - IN THE COURT OF CRIMINAL APPEAL 60087/02

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: