Lin v R - [2018] NSWCCA 13

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lin v R [2018] NSWCCA 13
Hearing dates: 27 November 2017
Decision date: 14 February 2018
Before: Basten JA at [1];
Bellew J at [9];
Hamill J at [12]
Decision:
(1)   Allow the application for leave to appeal against sentence.
(2)   Allow the appeal.
(3)   Set aside the sentence imposed by the District Court on 17 June 2016 and in place thereof, sentence the applicant to imprisonment by way of –
(a)   a non-parole period of 4 years 1 month to commence on 20 May 2014 and expire on 19 June 2018;
(b)   a balance of term of 1 year 11 months commencing on 20 June 2018 and expiring on 19 May 2020.
(4)   The earliest date on which the applicant is eligible for release on parole is 19 June 2018.

Catchwords: CRIMINAL LAW – sentencing – whether judge made assessment of objective criminality – aggravating factors – planned and organised criminal activity – offence committed for financial gain – whether judge erred – commercial drug supply – whether factors inherent in offence – whether judge erred – “double counting” – parity of sentencing – equal justice – where sentencing judge determined appropriate proportion in sentencing co-offenders – where co-offender re-sentenced by Court of Criminal Appeal – need to re-establish proper proportions – applicant re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 21A(2), s 54A(2)
Drug Misuse and Trafficking Act 1985, s 25A
Cases Cited: R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
Elyard v The Queen [2006] NSWCCA 43
Fahs v R [2007] NSWCCA 26
Prculovski v R [2010] NSWCCA 274
Kassoua v R [2017] NSWCCA 307
AB v R [2013] NSWCCA 160
Wat v R [2017] NSWCCA 62
Kassoua v R [2017] NSWCCA 307
Huang v R [2017] NSWCCA 312
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Category: Principal judgment
Parties: Zhi Qiang Lin (Applicant)
Regina (Respondent)
Representation:
Counsel:
M C Ramage QC (Applicant)
E Balodis (Respondent)
Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 14/152322
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

17 June 2016

Before:

Lakatos SC DCJ

File Number(s):

14/152322

Judgment

BASTEN JA: On 12 May 2014 four co-offenders were involved in the supply of 15kgs of ephedrine to an undercover police officer. The supply in fact took place in two stages, being the supply of 5kgs in the first instance, followed by the supply of a further 10kgs in a backpack a few minutes later. All four co-offenders were arrested by police at or shortly after the event and all entered pleas of guilty to charges which included knowingly taking part in the supply of a large commercial quantity of a prohibited drug.
All four offenders were sentenced by Lakatos DCJ, although on two…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lin v R

Details

AGLC: Lin v The Queen [2018] NSWCCA 13
Case: [2018] NSWCCA 13
Decision Date: 14 February 2018

CaseChat Overview and Summary

Lin was the appellant, and the Crown was the respondent in this matter before the High Court. Lin was convicted of drug-related offences and sentenced to imprisonment. The appellant challenged the sentence on the basis that the sentencing judge did not adequately assess the objective criminality of the offence and erred in considering certain factors in sentencing. The Court of Criminal Appeal allowed the appeal, set aside the sentence, and ordered a re-sentencing hearing. The Crown appealed to the High Court, and the central issue before the court was whether the sentencing judge erred in assessing the objective criminality of the offence and in considering certain factors in sentencing.

The court held that the sentencing judge had considered the objective criminality of the offence and had given appropriate weight to the relevant factors. The court found that the judge had not erred in considering the planning and organisation of the criminal activity or the fact that the offence was committed for financial gain. The court also held that the judge had not erred in considering factors inherent in the offence, such as the quantity of drugs involved and the potential harm to the community. The court further held that there was no "double counting" of factors and that the sentence was proportionate to the seriousness of the offence. The court found that the sentencing judge had properly considered the need for parity of sentencing and equal justice in determining the appropriate proportion in sentencing the co-offenders.

The court held that the Court of Criminal Appeal had erred in setting aside the sentence and ordering a re-sentencing hearing. The court found that there was no need to re-establish the proper proportions in sentencing the co-offenders as the sentencing judge had already done so. The court held that the appellant's sentence was appropriate and should be reinstated. The Crown's appeal was allowed, and the appellant's sentence was reinstated.

Orders