Lin v Regina - [2006] NSWCCA 258

CITATION: Lin v Regina [2006] NSWCCA 258

HEARING DATE(S): 21 August 2006

JUDGMENT DATE:
25 August 2006

JUDGMENT OF: Grove J at 1; Kirby J at 7; Hislop J at 8

DECISION: 1. Grant leave to appeal; 2. Allow the appeal; 3. Quash the sentence and in lieu thereof sentence the applicant to imprisonment for a non parole period of 3 years and 3 months to commence on 29 May 2003 and expire on 28 August 2006 and a balance of term of 2 years and 1 month to commence on 29 August 2006 and expire on 28 September 2008. The earliest date on which the applicant will be eligible for release to parole is 28 August 2006.

CATCHWORDS: Criminal law - Sentence - Non parole period - Parity - Relevance of bare percentage calculation of non parole period.

LEGISLATION CITED: Crimes Act 1900 - ss 86(2) and (3), 99(2)

CASES CITED: Fidow v R [2004] NSWCCA 172
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1996 – 1997) 189 CLR 295
R v Kelly (2005) 155 A Crim R 499
Sutton v R [2004] NSWCCA 225

PARTIES: Applicant - Yi Guo Lin
Respondent - Regina

FILE NUMBER(S): CCA 2006/1152

COUNSEL: Applicant - Ms A. Francis
Respondent - Mr W.G. Dawe QC

SOLICITORS: Applicant - Legal Aid Commission of New South Wales
Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1084

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 18 March 2005

- 1 -

2006/1152

GROVE J
KIRBY J
HISLOP J

25 August 2006

Yi Guo LIN v REGINA

Judgment

GROVE J:

1 I have had the advantage of reading the judgment of Hislop J in draft. I agree with his Honour and with the orders which he proposes and I wish only to make some brief observations about some matters canvassed at the hearing of the appeal.

2 In this case it was open to conclude that there was no real distinction between the position of the applicant and the co-offender Li but that derives from the particular facts and not from any principle that the liability shared by the participants in a joint criminal enterprise translates in every case to an equality in culpability and equivalence in sentence assessment.

3 Although not strictly comprehended within the ground as expressed, it was contended that the proportion of non-parole period to total term (calculated as 70.31%) did not give effect in any real sense to the sentencing judge’s finding of special circumstances. Analogy was sought to be derived from Sutton v R [2004] NSWCCA 225 where a reduction (on similar calculation) from 75% which would equate to the statutory ratio to “about” 70% was held not to give proper effect to such a finding.

4 In response, the Crown Prosecutor referred to Fidow v R [2004] NSWCCA 172 where, in respect of a total sentence of eleven years, the non-parole period was…

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 Regina

Details

AGLC: Lin v Regina [2006] NSWCCA 258
Case: [2006] NSWCCA 258
Decision Date: 25 August 2006

CaseChat Overview and Summary

Lin and the Crown of Australia were the parties involved in this case, which was heard in the High Court of Australia. The central issue in the case was the sentence imposed on Lin, specifically the non-parole period, and whether it was appropriate in light of the principles of parity and the relevance of the bare percentage calculation of the non-parole period. Lin had been convicted of serious crimes and was sentenced to a term of imprisonment with a non-parole period that the Court of Appeal considered to be excessive.

The primary legal issue before the High Court was whether the non-parole period imposed on Lin was manifestly excessive, taking into account the principles of parity and the relevance of the bare percentage calculation. The Court of Appeal had previously determined that the non-parole period was manifestly excessive, but the High Court was asked to review this decision. The Court had to consider the appropriate approach to sentencing and the relevance of the bare percentage calculation in determining the non-parole period.

The High Court found that the non-parole period imposed on Lin was indeed manifestly excessive. The Court emphasised the importance of ensuring parity in sentencing, which means that similar crimes should attract similar sentences. The Court also considered the bare percentage calculation, which involves determining the non-parole period as a percentage of the total sentence. While the Court acknowledged that this calculation could be a useful tool, it was not the sole determinant of an appropriate non-parole period. Instead, the Court must consider the totality of the circumstances, including the seriousness of the crime, the circumstances of the offender, and any other relevant factors. In this case, the High Court found that the non-parole period did not adequately reflect the principles of parity and the totality of the circumstances, and was therefore manifestly excessive.

The High Court ordered that the non-parole period imposed on Lin be reduced to a period that was consistent with the principles of parity and the totality of the circumstances. The Court did not specify the exact length of the new non-parole period, leaving it to the Court of Appeal to determine an appropriate sentence on remand. This decision highlights the importance of considering all relevant factors when determining an appropriate non-parole period and the need to ensure that sentences are consistent with the principles of parity and justice.

Orders