R v Feng Lin - [2001] NSWCCA 7

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Feng Lin [2001] NSWCCA 7 revised - 24/08/2001

FILE NUMBER(S):
60071/00

HEARING DATE(S): 8 December 2000

JUDGMENT DATE: 09/02/2001

PARTIES:
Regina v Feng Lin

JUDGMENT OF: Mason P Hidden J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/065

LOWER COURT JUDICIAL OFFICER: Viney DCJ

COUNSEL:
G P Craddock (Appellant)
A F Backman (Respondent)

SOLICITORS:
Legal Aid Commission of NSW (Appellant)
Commonwealth Director of Public Prosecution (Respondent)

CATCHWORDS:
SENTENCING - Severity appeal - taking part in the coming to Australia of non-citizens - people-smuggling - stowaways secreted in ship by deck officer - strong deterrent element - exceptional subjective circumstances.

LEGISLATION CITED:
Crimes Act 1914
Migration Act 1958
Migration Legislation Ammendment Act 1999

DECISION:
See paragraph 74 and 75.

JUDGMENT:

- 1 -

IN THE COURT OF

CRIMINAL APPEAL

CCA 60071/00

MASON P
HIDDEN J
CARRUTHERS AJ

Friday, 9 February 2001

REGINA v FENG LIN

JUDGMENT

MASON P: I have had the benefit of reading the judgment of Carruthers AJ.
In my view the remarks on sentence of Judge Viney QC do not reveal appealable error. Nor was the sentence imposed manifestly excessive.
The objective seriousness of the offence is evident from its nature and the reasons underlying the 1999 amendments which increased the maximum penalty to ten years imprisonment or 1000 penalty units or both. Smuggling non-citizens into Australia presents obvious social problems to the fabric of Australian society; it undermines the attempted equities of an organised immigration and refugee system; it exposes the participants to exploitation and risk to health and life; and it imposes significant costs upon the Australian public. The need for deterrent penalties is manifest given the difficulties of detection and the exposure of Australia through its vast coastline. The extent of the problem has increased markedly in recent years, according to the Minister’s second reading speech set out in the judgment of Carruthers AJ.
I do not regard the two Northern Territory cases discussed by Carruthers AJ as setting general benchmarks. In any event, the circumstances of the present case are distinguishable given the applicant’s responsible position as a deck officer, the covert nature of the particular offence and the size of the promised reward involved.
I do not consider that Viney DCJ erred in taking 7 years as an appropriate starting point for the sentencing exercise, having regard to the objective features of the offence. (This was the principal submission of the applicant.) The starting point was high, but not appealably high, when one has regard to the applicant’s significant involvement in the attempted smuggling of three non-citizens, the steps actually taken, the amount of the promised reward ($US3000 per person) and the applicant’s awareness of the illegality of his actions.
The learned sentencing judge addressed and took account of a range of subjective factors including the applicant’s lack of prior convictions, his good character, his gullibility in having been led into the offence due to his lack of experience, his expressed and genuine contrition culminating in the guilty plea and significant assistance to the authorities, the impact of serving a sentence in a foreign environment away from family and friends, the impact of the sentence upon his future prospects as a deck officer and his excellent character in prison. Each of the subjective matters referred to by Carruthers AJ were adverted to and taken into account by the sentencing judge. Unless the sentence imposed was manifestly excessive (which in my view it was not), the evaluation of the precise impact of those factors was a matter for Viney DCJ.
I would grant leave to appeal, but dismiss the appeal.
HIDDEN J: I agree with Carruthers AJ.
CARRUTHERS AJ: Feng Lin, who is a citizen of the People’s Republic of China, seeks leave to appeal against a sentence imposed upon him by his Honour Judge Viney QC at the Sydney District Court on 1 February 2000 in relation to a conviction on one count under s 233(1)(a) of the Migration Act 1958, as amended, of taking part in the coming to Australia of non-citizens under circumstances from which it might reasonably be inferred that the non-citizens intended to enter Australia in contravention of the Migration Act 1958.
The applicant had earlier pleaded guilty to that charge and was remanded for sentence until 1 February 2000. The maximum penalty for the subject offence is ten years imprisonment or one thousand penalty units, or both. His Honour sentenced the applicant to imprisonment for a period of four years, to date from 21 August 1999 (when the applicant was taken into custody) and fixed a non-parole period of two years and four months, to expire on 20 December 2001.
The applicant, who is a single man, was born on 20 October 1974 on a small island, being the only child of his parents. His mother is illiterate and his father, who is now rather old, made a living as a fisherman until, as the result of advancing age and physical disability, he lost his working capacity. Thus the applicant came from a disadvantaged background. However, he demonstrated high intelligence and a determination to succeed as a student. He had an excellent High School record. After High School, he enrolled in the Zhoushan Navigation College in order to prepare himself for a career as a ship’s deck officer.
Upon graduation from College he obtained a cadetship with the Orient Overseas Container Line (hereinafter “OOCL”) in 1994. The OOCL is a large Chinese shipping company, whose activities include providing a service of container vessels between Chinese and Australian ports. This appointment may be looked upon as a significant achievement by the applicant.
To the applicant’s credit, performance appraisal reports by the company, which were in evidence before his Honour, demonstrate that the applicant discharged his duties over the years in an efficient and responsible manner on various vessels of the Company.
On 18 March 1999 the applicant was appointed Third Officer on the M.V. OOCL Exporter (the “Exporter”).
The Exporter is a large container vessel which at the relevant time was engaged in a direct service between the port of Shekuo and the port of Sydney.
The circumstances under which the applicant committed the subject offence can be gleaned from a taped record of interview between Federal Agents and the applicant, conducted on board the vessel at Port Botany on 21 August 1999.
On about 5 July 1999 the applicant was in a hairdresser’s salon in Shekuo when he was approached by a man who knew that his vessel was due to sail for Australia.
The man approached the applicant and asked: -
“I have a few friends, whether it’s possible for you to take them to Australia.”(sic)
The applicant declined the overture and there the matter rested at that stage. After the Exporter returned from Australia to Shekuo the applicant contacted this man, who had previously provided him with a mobile telephone number. The man again enquired whether the applicant was prepared to bring persons to Australia on the vessel. The man arranged to meet the applicant at a hotel. At the hotel the man said: -
“My three friends who are already here. I already brought them here now.”(sic)
On this occasion the applicant yielded to the overtures and informed the man that the three persons could be brought to the vessel when the applicant commenced his watch at 4pm that day.
Consequently, at 4 pm the man brought three other males to the wharf. The three males boarded the vessel and the applicant took them down into No. 8 cargo hold and gave them some water and bread. They were to remain in the hold until the vessel arrived at Sydney, some eleven days later.
The applicant said that the man had promised to give him three thousand American dollars for each person who was smuggled into Australia. However payment was not to be made until the Exporter returned to Shekuo. Whether that sum of money (which would have represented a king’s ransom to the applicant), or any of it, would have been paid to the applicant if the persons had been introduced into Australia without detection will never be known.
On 10 August 1999, the Exporter sailed from the port of Shekuo with the three persons secreted in No. 8 cargo hold.
The circumstances under which they came to be detected are set out in the statement of Huang Yao Zhu, the Chief Officer of the vessel .
On 14 August 1999 the Chief Officer, in accordance with his routine duties, conducted (in company with a senior able seaman) an inspection of the vessel’s holds. Whilst using a torch light to look for a bilge well in cargo hold No. 8, he detected the three stowaways who appeared to be sleeping on their backs.
Without realising that the applicant was involved in the matter, the Chief Officer radioed the applicant who was then on the bridge area of the vessel. The applicant then requested the Chief Officer to come to the bridge. When the Chief Officer did so, the applicant put his hand on his shoulder and said words to the effect: -
“Just treat this as though you have found some money on the road and don’t talk any more”
The Chief Officer replied: -
“I can’t and I must report to the Captain”
The Chief Officer then reported the matter to the Master.
A short time later, the applicant informed the Master that he was responsible for the presence of the three persons on the vessel, but requested the Master not to implicate him in the matter if it was reported to the Company.
On the evening of 15 August 1999 the applicant approached the Master and said words to the effect: -
“I need to tell you the truth about this incident. While the ship was in the port of Shekuo, on the last voyage, I went out to do my shopping. I ran into a fellow who could speak the same dialect as me. He told me that if I could smuggle some people, I would be paid US$3000 per person. On this occasion I did not agree because I was scared. Then on another occasion I saw this man again and this time I agreed.”
The Master replied to the following effect: -
“I have received an email from the Company. They have instructed me that they do not accept your story. They have instructed me to ask you some questions. It is in your best interests to tell the truth to the Company.”
Later that evening the applicant handed the Master a handwritten report outlining his involvement in the matter. That report was faxed by the Master to the Company.
After the stowaways had been located they were fed and spent the remainder of the voyage in the vessel’s hospital.
The Explorer berthed at Port Botany on 21 August 1999 and Federal Agents immediately boarded the vessel and took the applicant and the three stowaways into custody.
When interviewed by the Federal Agents the applicant was completely co-operative and gave them the name and mobile telephone number of the man in Shekuo who had approached him and brought the persons to the vessel.
A Statement of Assistance under the hand of a Federal Agent dated 25 January 2000, was before his Honour. Relevantly, that Statement reads: -
The prisoner told police that a man named Kwok-hua Chen was the organiser of this criminal activity and his name was given to the Chinese authorities. To my knowledge the Chinese have detained Chen but no other detail can be obtained despite numerous requests to the Chinese authorities.
The prisoner has informed Police he is a merchant seaman and by admitting and coming to terms with this crime has seriously impeded his chances of future employment and promotion with the OOCL shipping company. He is also unsure of any future physical harm that may come to him that may arise as a result of informing on the Chinse organiser
The prisoner is further aware that Australian authorities can afford him no assistance or protection once his gaol term has been served.
The fact that a definitive commentary cannot be obtained from the Chinese authorities in relation to this matter impedes my ability to fully comment on [the] true value of the prisoners’ assistance other than to say I think his contrition is genuine.
During the interview between the applicant and the Federal Agents, the applicant was asked: -
“has anyone ever approached you about doing this sort of thing before?
The applicant responded: -
“No, never. This is my first time. Actually I didn’t want to do all this. I never wanted to do that at all because one of my friends fell into the water and he died two days before we left. I was very depressed.”
The applicant conceded that he realised that his actions were contrary to both Chinese and Australian law.
When interviewed by the Federal Agents the three stowaways stated that they had no passports or travel documents, and consequently they were detained as prohibited non-citizens.
The applicant informed the Federal Agents, during the course of his interview, that when the vessel arrived in Sydney he was to telephone Mr Chen in Shekuo who would tell him what to do next. There was no evidence before Viney DCJ as to the proposed fate of the stowaways in the event that their presence on the vessel was not detected.
In that regard his Honour thought however that in the light of the available evidence the appropriate inference was that the three stowaways were “to be brought into Australia and to be secreted in the community”. Thus in his Honour’s view this was a clear case of people-smuggling as distinct from people-trafficking.
It is convenient now to consider the manner in which his Honour calculated the actual sentence which was imposed. Taking the view that this was a serious matter from an objective point of view, his Honour thought it appropriate to start his calculation with a figure of 7 years.
His Honour reduced that figure to 6 years in order to accommodate the assistance which the applicant had rendered to the authorities: see s 16A(2)(h) of the Crimes Act, 1914.
His Honour allowed a further deduction of one third for the lack of remissions in this State: see s 16G of the Crimes Act. Thus his Honour assessed a head sentence of 4 years imprisonment. His Honour expressed the view that the applicant’s rehabilitation was well on the way, and saw no reason to depart from what he referred to as the usual non-parole period, vis, 60% of the head sentence. Accordingly his Honour fixed a non-parole period of 2 years and 4 months.
His Honour then enquired of the legal representative of the Crown, whether it was likely that the applicant would be deported upon his release on parole. The response was: -
“Well yes I can’t really comment. It’s highly likely. He might lodge some sort of application, I don’t know.”
The question of deportation was not raised before this Court.
It is convenient now to consider the statutory provisions relevant to the subject offence. Division 12 of Part 2 of the Migration Act 1958 deals with offences in relation to entry into, and remaining in, Australia.
It is appropriate to consider both s 232A and s 233, bearing in mind certain discussion which took place before Viney DCJ. Those sections, are set out hereunder: -
232A Organising bringing groups of non-citizens into Australia
A person who:
(a) organises or facilitates the bringing or coming to Australia or the entry or proposed entry into Australia, of a group of 5 or more people; and
(b) does so knowing the people would become, upon entry into Australia, unlawful non-citizens;
is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both
233 Persons concerned in bringing non-citizens into Australia in contravention of this Act or harbouring illegal entrants
(1) A person shall not take any part in:
(a) the bringing or coming to Australia of a non-citizen under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of this Act;
(b) the concealing of a non-citizen with intent to enter Australia in contravention of this Act; or
(c) the concealing of an unlawful non-citizen or a deportee with intent to prevent discovery by an officer.
(2) A person must not knowingly or recklessly harbour an unlawful non-citizen, a removee or a deportee.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
It is important to bear in mind that the elements of the offence under s 232A are different from the elements of the offence in s 233(1)(a).
Speaking generally, s 232A is concerned with persons who organise the bringing of groups of more than 5 persons, who are non-citizens, into Australia.
The reference in s 232A to a group of 5 or more people cannot lead, in my view, to the conclusion that s 233(1)(a) is confined to taking part in the bringing of a maximum of 4 non-citizens to Australia. In other words sections 232A and 233 are not cognate sections, and a sentencing Judge can obtain no assistance from a consideration of the provisions of s 232A when imposing a sentence for an offence under s 233.
This Court has been informed that this is the first prosecution in this State for an offence under s 233(1)(a) since the legislature increased the maximum penalty from 2 years to 10 years imprisonment. This amendment was effected by the Migration Legislation Amendment Act(No. 1) 1999 which became effective on 22 July 1999.
When introducing the Bill into the House of Representatives, the Honourable Peter Slipper (Parliamentary Secretary to the Minister for Finance and Administration) said (Hansard 30 June 1999 p 7992): -
“The government is committed to protecting the integrity of the nation’s borders and to stopping the work of people traffickers who think nothing of exploiting people with the false promise of entry into Australia.”
The Honourable Con Sciacca, (Shadow Minister for Immigration) who supported the Bill, said during the course of the debate (at p 7993): -
“Over the past 18 months Australia has increasingly been seen as a soft target to gangs of people traffickers in a number of countries. Overall in 1997-98 some 157 illegal immigrants arrived by sea on our shores. In 1998-99 this figure increased eightfold to 859, and more are coming every day. This increase in people smuggling in the operation of the so-called ‘snakeheads’, signifies that Australia’s penalties for these offences do not go far enough to deter those who assist these criminal warlords on our shores. The amendments put forward today reflect the seriousness of these crimes and their cost to the government and to the Australian community.
Sentencing judges must necessarily be sensitive to the concern expressed by the Federal government at the increasing prevalence of people-smuggling into this country with its consequence of possible health problems, the cost of detection, law enforcement, detention, and the many other social problems associated with this illegal conduct. Of course, unhappily this is not a problem which is confined to Australia, although it must be acknowledged that Australia is particularly vulnerable to people-smuggling by reason of its extensive coastline.
However, as this case and other cases illustrate, the imposition of an appropriate penalty for this offence is one of considerable difficulty. It is helpful, therefore, to consider certain of the penalties which have been imposed in other Australian jurisdictions since the increased penalty under s 233(1)(a) came into effect. In each case the factual circumstances are considerably different from the subject case. However, some assistance may be gathered from two judgments.
The matter of The Queen v Guruapin and Others came before Riley J in the Supreme Court of the Northern Territory on 22 November 1999 (SCC 99/19773, 99/19774, 99/20280, 99/20281, 99/20283). Here five citizens of the Republic of Indonesia were dealt with for offences under s 233(1)(a). Two of the offenders were sentenced in respect of offences which occurred on 26 August 1999 and which involved 12 non-citizens. Three of the offenders were sentenced in respect of offences which occurred on 30 August 1999 and which involved 24 non-citizens. Each offender pleaded guilty. Each of the prisoners was a fisherman of limited means who agreed to take part in a voyage on certain vessels from Indonesia to the Ashmore Reef carrying non-citizens who were intent on seeking entry into Australia. None was an organiser. Each had skills which could assist in getting the vessels to their destination. Each was motivated by an offer, which was to them, of significant financial benefit.

After taking into account s 16G of the Crimes Act, each of the offenders was sentenced to imprisonment for 2 years, to be released within 12 months upon entering into a recognizance in the sum of $500 to be of good behaviour for a period of 12 months.
Riley J said, in his remarks on sentence: -
“It is not difficult to see why the offences are treated so seriously. Potential risks to the people of Australia are obvious and significant. Whilst the present offences are serious, they are far from the most serious contemplated by s 233(1)(a) of the Migration Act.
Although the prisoners are at the end of the chain of persons involved in facilitating the journeys of these people from their country of origin to the shores of Australia, they are a vital part of that process. They provide the means by which the final leg of the journey is completed. It is through them that entry into Australia is achieved.”
The matter of The Queen v Nursia and Others came before Bailey J in the Supreme Court of the Northern Territory on 12 January 2000 (SCC99/21457, 99/214155, 99/20702, 99/20691, 99/20695, 99/20696, 99/20692, 99/20694). Again, the offenders were citizens of the Republic of Indonesia. Two of the offenders were sentenced in respect of offences which occurred on 17 September 1999 and which involved 4 non-citizens. Six of the offenders were sentenced in respect of offences which occurred on 31 August 1999 and which involved 86 non-citizens. Both of the voyages involved the Ashmore Reef as their destination. The first 2 offenders were street vendors from East Java who had been approached and had been offered the equivalent of AU$200-250 each to take 4 Iraqis (who were described to them as tourists) to Ashmore Reef. The other 6 offenders were fishermen from Kepang. The Master of the vessel was promised the equivalent of AU$300-375 and the remaining 5 crew were promised approximately two-thirds of this sum each. It was not suggested by the Crown that any of the offenders was an organiser in the ventures. Each pleaded guilty at the first opportunity and each was entitled to credit for co-operation. Only one had a prior criminal conviction.
The first 2 offenders were sentenced to imprisonment for 16 months and were ordered to be released after 10 months upon entering into a recognizance in the sum of $500 to be of good behaviour for 12 months. His Honour took as a starting point imprisonment for 3 years which was reduced to 2 years for mitigation, and which was further reduced under s 16G of the Crimes Act.
The remaining 5 offenders, with one exception, were sentenced to imprisonment for one year and 10 months, and were ordered to be released after 13 months upon entering into a recognizance in the sum of $500 to be of good behaviour for 18 months. In these cases the starting point was imprisonment for 4 years which was reduced to 2 years 8 months for assistance, and this was then further reduced under s 16G. The one offender who had a previous conviction for an offence under s 233(1)(a) was sentenced to imprisonment for 2 years and 3 months and was ordered to be released after one year and 5 months upon entering into a recognizance in the sum of $500 to be of good behaviour for 2 years.
During the course of his remarks on sentence, Bailey J said: -
“It is my duty to give effect to the legislative intent. The penalties for such offences must be substantial and also must be increased from what has been a general range in the past.
General deterrence must play an important role in determining appropriate sentences in the present circumstances. A clear message must be sent to those who are minded to engage in bringing non-citizens to this country that they can expect to face a very substantial penalty.’
Bailey J went on to say that there was no attempt to hide from the authorities or to disguise what the offenders were doing. His Honour said: -
“The offences, whilst serious, are correctly described as ‘people-trafficking’ offences rather than ‘people-smuggling’.”
Before this Court the Crown sought to distinguish these cases on the basis that the subject case was not concerned with people-trafficking but with people-smuggling. It was the intention, it was argued, of the applicant to land the stowaways in Sydney with the aim of integrating them into the Australian community.
The fundamental point in the applicant’s argument before this Court was that his Honour commenced his assessment of the appropriate penalty at too high a figure, namely 7 years as against a maximum penalty of 10 years imprisonment.
The Crown, on the other hand, submitted that this is an offence in which the element of deterrence plays a predominant role in the sentencing process. The Court was reminded that s 16A(1) of the Crimes Act provides that in determining the sentence to be passed, in respect of any person for a Federal offence, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. A specific matter which must be taken into consideration is the nature and circumstances of the offence. In the current climate of community concern at the prevalence of people-smuggling and the problems of detection, it was submitted that his Honour was correct in commencing his assessment of appropriate penalty at a figure in the order of 7 years.
The question for this Court is whether the sentence imposed by his Honour was, balancing the objective and subjective circumstances, outside the sentencing discretion available to his Honour. Although, in his careful judgment, Judge Viney adverted to the various subjective matters, his Honour, in my respectful view, did not make sufficient allowance for them in the assessment of the appropriate head sentence. The subjective circumstances in this case may fairly be described as exceptional. They may be briefly summarised as follows:
Firstly, the conviction and consequential sentence must, at the very least constitute a serious disruption to the applicant’s professional career as a Deck Officer. The chances of the applicant being re-employed by OOCL, or a company of its standing, must be considered to be minimal. This detriment is of such a serious nature to the applicant’s chosen career (in which he had progressed thus far so commendably) that it operates as a very significant punishment in itself.
Secondly, the applicant has a prior excellent character. Prior to this lapse he had led an unblemished personal and professional life. Although the lapse was a serious one, the circumstances clearly demonstrate a certain naivety on his part. It may well be that he was depressed at the time, as he claims, as the result of his friend being drowned.
Thirdly, the applicant is required to serve his sentence in a foreign country. This separation from his family has (according to the evidence) already caused tensions.
Fourthly, there is the assistance which the applicant rendered to the authorities, with the consequent fear of reprisals upon his return to China. Although the Chinese authorities have not seen fit to provide the Australian authorities with the details which they seek in relation to Mr Chen, it is clear that Chen was arrested by the Chinese authorities based on information supplied by the applicant. The applicant could have done no more in this regard than he has done already in assisting the authorities.
Fifthly, the applicant may rely upon his plea of guilty at the earliest possible time. In the circumstances of this case, this plea has a significant utilitarian value because the Crown would have been required to rely upon evidence of overseas witnesses if the matter had proceeded to trial. The fact that the prospective overseas witnesses are seafarers would represent an additional complexity. There has been a clear demonstration of contrition on the part of the applicant and one can look upon his prospects of rehabilitation as excellent. I do not overlook that when the stowaways were detected in the cargo hold, the applicant sought to have his involvement in the matter covered up.
Sixthly, the applicant has conducted himself in an exemplary manner whilst incarcerated in New South Wales. Very significant evidence was before his Honour to this effect.
In a report dated 25 January 2000 by the Senior Education Officer at the Parramatta Correctional Complex, the following comment is made: -
“Feng Lin continues to impress and to draw praise from teachers with his consistent quiet persistence, initiative, and courage to make the best of a difficult situation.
In addition to these subjective circumstances, his Honour was required, as his Honour did, to take into account the fact that in this State sentences are not subject to remission or reduction
Thus, giving full weight to the objective seriousness of the offence and the need for a strong deterrent element in the sentence, nevertheless when one balances with them the exceptional subjective circumstances, it leads to the conclusion, in my respectful view, that the sentence imposed by his Honour was outside the sentencing discretion available to him.
I would propose, therefore, the following orders: -
(i) Leave to appeal be granted and the appeal upheld;
(ii) The sentence imposed by his Honour be set aside and in lieu thereof the applicant be sentenced to three years imprisonment to date from 21 August 1999 and to expire on 20 August 2002.
(iii) The appellant is to be released at the expiration of one year and eight months from 21 August 1999, upon his entering into a Recognizance in the sum of $500.00 to be of good behaviour for one year and four months.
The explanation of the sentence required by s 16F of the Crimes Act is to be provided to the applicant by his Solicitor or Counsel.

LAST UPDATED: 24/08/2001