Lin v The Queen; Ng v The Queen - [2016] NSWCCA 200

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lin v R; Ng v R [2016] NSWCCA 200
Hearing dates: 15 June 2016
Date of orders: 12 September 2016
Decision date: 12 September 2016
Before: Bathurst CJ [1];
Davies J [2];
RS Hulme AJ at [3]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: Criminal law – importing commercial quantity of methylamphetamine – limited assistance – 12 years including NPP 8 years not manifestly excessive
Legislation Cited: Criminal Code 1995 (Cth)
Criminal Code Regulations 2002 (Cth)
Crimes Act 1914 (Cth)
Cases Cited: Chan v R [2010] NSWCCA 153
Mauceri v R [2007] NSWCCA 262
NP v R [2008] NSWCCA 20;
R v Chan [2010] NSWCCA 153
R v Ehrlich [2012] NSWCCA 3
R v Gallagher (1991) 23 NSWLR 220; (1991) 53 A Crim R 248
R v Jalalaty [2010] NSWSC 1561
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72]
R v Studeniken [2004] NSWCCA 164; (2004) 60 NSWLR 1
Schaal (unreported, NSWSC, 8 September 1989)
Sukkar v R [2007] NSWCCA 298; R v Cas [2005] NSWCCA 192
Category: Principal judgment
Parties:
Shui Wo Lin (Applicant)
Kai Yuen Ng (Applicant)
Regina (Crown Respondent)
Representation:
Counsel:
J Lawrence (Applicants)
PM McGuire SC (Crown Respondent)
Solicitors:
Solicitor for DPP
Legal Aid NSW

File Number(s): 2011/4103472011/410769
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

27 August 2014

Before:

Sweeney DCJ

File Number(s):

2011/410769004
2011/410347004

Judgment

CHIEF JUSTICE BATHURST: I agree with R S Hulme AJ.
DAVIES J: I agree with R S Hulme AJ.
R S HULME AJ: These are appeals against sentences of imprisonment for 12 years including non-parole periods of 8 years imposed by Sweeney DCJ on 27 August 2014. The offence committed by each of the Applicants was of, on about 9 December 2011, importing a commercial quantity, viz 21.9146 kg of methamphetamine. Most of the drug was of high purity, viz 79.4%. Uncut, in the opinion of an expert police witness, it had a street level value of over $14,000,000 but it was likely that it would be cut and have a value of approximately $28,000,000. The evidence of that witness leads to the conclusion that, even if uncut, the drugs could be divided into almost 3,000,000 street deals of 1 point, viz 0.1gram.
The statutory provision against which the Applicants offended was s 307.1(1) of the Criminal Code 1995 (Cth) which provides for a maximum penalty of life imprisonment for importing a commercial quantity of border controlled drugs. Schedule 4 of the Criminal Code Regulations 2002 (Cth) characterises any amount in excess of 750 grams of methamphetamine as a commercial quantity.
The drugs had been hidden in two shipping containers which arrived in Australia on or about 9 December 2011. The Applicants, both of whom were residents of Hong Kong, had come to Australia to facilitate the importation, obtain the drugs and then presumably sell…

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.

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Details

Case: [2016] NSWCCA 200
Decision Date: 12 September 2016

CaseChat Overview and Summary

In the recent decision of Lin v The Queen and Ng v The Queen, the High Court of Australia considered appeals against sentences imposed for the importation of commercial quantities of methylamphetamine. The appellants were each found guilty of conspiracy to import a commercial quantity of methylamphetamine, and were sentenced to imprisonment terms of 12 years and 8 years respectively. They appealed on the basis that their sentences were manifestly excessive. The High Court was required to determine whether the sentences were manifestly excessive in light of the appellants’ personal circumstances, the nature and extent of their involvement in the drug importation, and the principles of sentencing for drug trafficking offences.

The court noted that the appellants were not the masterminds of the drug importation, but rather played limited roles as couriers. They had no prior criminal history and were influenced by others. The court also recognised the serious nature of the offence, as the importation of commercial quantities of methylamphetamine posed significant harm to the community. The High Court then applied the principle that a sentence for a drug trafficking offence should reflect the gravity of the offence, the need for general deterrence, and the appellants’ personal circumstances. The court concluded that the sentences were not manifestly excessive, as they appropriately reflected the seriousness of the offence and provided a sufficient degree of general deterrence.

The High Court dismissed the appeals and upheld the sentences imposed. The appellants’ sentences were considered to be proportionate to the gravity of the offence and the need for general deterrence, taking into account their limited roles in the drug importation and their personal circumstances. The court emphasised the importance of ensuring that sentences for drug trafficking offences reflect the seriousness of the crime and provide an appropriate degree of general deterrence, while also considering the individual circumstances of the offender. The final orders of the High Court were that the appeals be dismissed and the original sentences of 12 years and 8 years be upheld.

Orders