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,…

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 R v Feng Lin

Details

AGLC: R v Feng Lin [2001] NSWCCA 7
Case: [2001] NSWCCA 7
Decision Date: 9 February 2001

CaseChat Overview and Summary

The case of R v Feng Lin involved a defendant who was convicted of taking part in the coming to Australia of non-citizens, a charge related to people-smuggling. Feng Lin was found guilty of assisting stowaways who were secreted in a ship by a deck officer. The matter was brought before the court for sentencing, and subsequently, an appeal against the severity of the sentence was lodged. The appeal was heard by the court, which had to determine the appropriate level of punishment considering the nature of the offence and the circumstances surrounding it.

The court had to consider several legal issues in this case. Firstly, it had to assess the severity of the offence, which involved assisting in the illegal entry of non-citizens into Australia. The court also needed to take into account the role Feng Lin played in the smuggling operation, specifically his involvement in hiding the stowaways on the ship. Additionally, the court had to weigh the exceptional subjective circumstances presented by the defence, which were intended to mitigate the sentence. The court also had to consider the need for a strong deterrent effect in such cases to discourage others from engaging in similar activities.

In delivering its reasoning, the court first acknowledged the gravity of the offence, highlighting the significant impact of people-smuggling on national security and the rule of law. It also recognised the need for a strong deterrent to prevent such activities in the future. However, the court also took into account the exceptional subjective circumstances presented by the defence, which included factors such as Feng Lin's personal background and the potential impact of the sentence on his family. After carefully weighing all these factors, the court decided to impose a sentence that, while severe, reflected the seriousness of the offence and also considered the mitigating circumstances. The appeal against the severity of the sentence was dismissed, and the original sentence was upheld.

The final orders of the court confirmed that Feng Lin's sentence would remain as determined in the initial sentencing. The court emphasised that while it recognised the exceptional circumstances, these did not justify a significantly lighter sentence. The decision underscored the importance of maintaining a balance between the need for deterrence and the consideration of individual circumstances in sentencing.

Orders