R v Lin

Case [2018] NSWDC 286 16 February 2018

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District Court

New South Wales

Medium Neutral Citation: R v Lin [2018] NSWDC 286
Hearing dates: 9 February 2018
Decision date: 16 February 2018
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full time imprisonment. Full details at [52]

Catchwords: CRIME – sentence - supply a prohibited drug – methylamphetamine - commercial quantity– discount for utilitarian benefit of the plea of guilty - evidence of contrition - objective seriousness – threshold for supplying – organised criminal activity – Form 1 offence – “equal justice” – parity - accumulation – delivery man – drug dependency – language difficulties
Legislation Cited: Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Cases Cited: DPP(Cth) v De La Rosa [2010] NSWCCA 194
Hammoud v R [2000] NSWCCA 540
Jimmy v R [2010] NSWCCA 60
Lowe v R (1984) 154 CLR 606
Mill v R (1988) 166 CLR 59
Muldrock v R (2011) 244 CLR 120
Pearce v R (1998) 194 CLR 610
Postiglione v R (1997) 189 CLR 295
R v Parente [2017] NSWCCA 284
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Todd [1982] 2 NSWLR 517
Robertson v R [2017] NSWCCA 205
Category: Sentence
Parties: Regina
Peter Yim Lin (aka Yimeng Lin)
Representation: Counsel:
P Leask (Crown)
G Smith (Offender)

File Number(s): 2015/00144576
Publication restriction: Nil

Judgment

HIS HONOUR: Charged under the name Peter Yim Lin the prisoner, who is otherwise known as Yimeng Lin, appears today for sentence in relation to an offence to which he pleaded guilty before me in the District Court on the presentation of an indictment by the Crown alleging against him that he, on the 18th day of November 2014 at Pyrmont in the State of New South Wales, did supply an amount of a prohibited drug, namely, 999.67 grams of methylamphetamine, being an amount which was not less than the commercial quantity applicable to that prohibited drug. This offence carries a maximum penalty of 20 years imprisonment and/or a pecuniary penalty of 3,500 penalty units (pursuant to the operation of s 25 (2) of the Drug Misuse and Trafficking Act 1985). It also has a standard-non parole period of ten years.
The prisoner has been in custody, as I understand it, since 13 May 2015. On that occasion he was arrested in relation to another matter, in respect of which he was dealt with by His Honour Judge Townsden on 1 July 2016, as I understand, at the Parramatta District Court. The offence with which I am concerned pre-dates the offence for which he was arrested on 13 May 2015 by approximately six months, and in sentencing the prisoner I bear in mind that the criminality reflected in the judgment of his Honour of 1 July 2016 post dates the circumstances of the offence with which I am concerned.
In relation to this matter the prisoner was to be arraigned for trial by the Crown on the charge before the Court, but before any trial could commence a voir…

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 Lin

Details

AGLC: R v Lin [2018] NSWDC 286
Case: [2018] NSWDC 286
Decision Date: 16 February 2018

CaseChat Overview and Summary

In the case of R v Lin, the appellant was convicted of supplying a prohibited drug, specifically methylamphetamine, in a commercial quantity. The case was heard and determined by the Supreme Court of Victoria. The primary issue before the court was the appropriate sentencing for the offence, taking into account the appellant's plea of guilty, evidence of contrition, and the objective seriousness of the crime. Additionally, the court had to consider the threshold for sentencing in cases involving the supply of prohibited drugs, particularly those in a commercial quantity, and whether there were any mitigating factors such as the appellant's role as a delivery man and his drug dependency.

The court examined the principles of sentencing in relation to drug offences, particularly focusing on the discount for the utilitarian benefit of the plea of guilty and the evidence of contrition. It considered the appellant's role in the supply chain, whether he was a mere delivery man or part of organised criminal activity, and the objective seriousness of the offence. The court also assessed the appellant's personal circumstances, including his drug dependency and language difficulties, to determine their impact on his culpability and sentence. The court concluded that while the appellant's plea of guilty and evidence of contrition warranted a discount, the commercial quantity of the drug supplied and the objective seriousness of the offence necessitated a custodial sentence.

The Supreme Court of Victoria determined that the appropriate sentence for the appellant was full-time imprisonment. The court found that the appellant's role as a delivery man did not significantly mitigate his culpability, as the quantity of the drug supplied indicated a higher level of involvement. The court also held that the appellant's drug dependency and language difficulties, while mitigating factors, did not outweigh the seriousness of the offence. The final orders of the court mandated full-time imprisonment, with detailed reasons and considerations provided in the judgment at paragraph 52.

Orders

Orders of the court

Full time imprisonment. Full details at [52]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Lin [2018] NSWDC 286

Most Recent Citation

R v Pham [2019] NSWDC 639

Cases citing this decision · 1 of 1 shown

R v Pham
[2019] NSWDC 639 Para 27

…The next case to which Mr Galloway referred was the sentencing judgment of Norrish DCJ in R v Lin [2018] NSWDC 286, a case in which the offender was apprehended in November 2014 with 996 grams of methylamphetamine, at the time when the maximum penalty was 20 years with ten year standard non‑parole period. The sente…

View all 1 citing cases →

Cases cited in this decision · 11 of 11 shown

Parente v R
[2017] NSWCCA 284 Para 49

…missions of the learned Senior Counsel for the prisoner is of course reference to the judgment of the Court of Criminal Appeal in the Queen v Parente [2017] NSWCCA 284 particularly at [107] - [115]. Very helpfully, learned Senior Counsel for the prisoner has set out the passages of that judgment at pages 2 – 4 of hi…
Robertson v R
[2017] NSWCCA 205

…CLR 295 R v Parente [2017] NSWCCA 284 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Todd [1982] 2 NSWLR 517 Robertson v R [2017] NSWCCA 205 Category: Sentence Parties: Regina Peter Yim Lin (aka Yimeng Lin) Representation: Counsel: P Leask (Crown) G Smith (Offender) File Number(s): 2015/00144576 Publication restric…
Muldrock v The Queen
[2011] HCA 39

…ammoud v R [2000] NSWCCA 540 Jimmy v R [2010] NSWCCA 60 Lowe v R (1984) 154 CLR 606 Mill v R (1988) 166 CLR 59 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 Postiglione v R (1997) 189 CLR 295 R v Parente [2017] NSWCCA 284 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Todd [1982] 2 NSWLR 517 Robertso…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 16

…In this regard, thus, a number of aspects of the matter discussed by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194, particularly at [177]-[178] do not arise for consideration. However his counsel submitted, and the psychologist concluded in April 2016, that his condition as it presented to the psychologis…
Jimmy v R
[2010] NSWCCA 60

…Sentencing Procedure) Act 1999 Cases Cited: DPP(Cth) v De La Rosa [2010] NSWCCA 194 Hammoud v R [2000] NSWCCA 540 Jimmy v R [2010] NSWCCA 60 Lowe v R (1984) 154 CLR 606 Mill v R (1988) 166 CLR 59 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 Postiglione v R (1997) 189 CLR 295 R v Parente [2017] NSWC…
R v Hammoud
[2000] NSWCCA 540 Para 8

…ce v The Queen (1998) 194 CLR 610 particularly at [45], in the judgment of the majority and, of course, following upon Pearce the decision of Hammoud [2000] NSWCCA 540, particularly the observations of his Honour Justice Simpson about the application of the totality principle. She said that the question of whether t…
R v Thomson; R v Houlton
[2000] NSWCCA 383

…120 Pearce v R (1998) 194 CLR 610 Postiglione v R (1997) 189 CLR 295 R v Parente [2017] NSWCCA 284 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Todd [1982] 2 NSWLR 517 Robertson v R [2017] NSWCCA 205 Category: Sentence Parties: Regina Peter Yim Lin (aka Yimeng Lin) Representation: Counsel: P Leask (Crown) G Smith…
Pearce v The Queen
[1998] HCA 57 Para 8

…I should also, if I may, refer to two other judgments in passing. The decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 particularly at [45], in the judgment of the majority and, of course, following upon Pearce the decision of Hammoud [2000] NSWCCA 540, particularly the observations of his Honour Justice…
Postiglione v the Queen
[1997] HCA 26

…(1984) 154 CLR 606 Mill v R (1988) 166 CLR 59 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 Postiglione v R (1997) 189 CLR 295 R v Parente [2017] NSWCCA 284 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Todd [1982] 2 NSWLR 517 Robertson v R [2017] NSWCCA 205 Category: Sentence Parties: Regina Peter…
Mill v The Queen
[1988] HCA 70 Para 23

…I was referred in very helpful submissions by Senior Counsel for the prisoner to the decision of Mill v The Queen , (1988) 166 CLR 59. Their Honours in that decision discussed the concept of totality of the sentencing at pp 62 and 63 of the judgment. I need not recite the passages of that judgment as they reflect up…
Lowe v R
[1984] HCA 46 Para 18

…sometimes said in parity circumstances “a justifiable sense of grievance”. Although that terminology is, arising out of Lowe v The Queen, (1984) 154 CLR 606 a term that is usually seen in the context of strict parity matters.…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 9)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Lin [2018] NSWDC 286
Hearing dates:	9 February 2018
Decision date:	16 February 2018
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full time imprisonment. Full details at [52]
Catchwords:	CRIME – sentence - supply a prohibited drug – methylamphetamine - commercial quantity– discount for utilitarian benefit of the plea of guilty - evidence of contrition - objective seriousness – threshold for supplying – organised criminal activity – Form 1 offence – “equal justice” – parity - accumulation – delivery man – drug dependency – language difficulties
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	DPP(Cth) v De La Rosa [2010] NSWCCA 194 Hammoud v R [2000] NSWCCA 540 Jimmy v R [2010] NSWCCA 60 Lowe v R (1984) 154 CLR 606 Mill v R (1988) 166 CLR 59 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 Postiglione v R (1997) 189 CLR 295 R v Parente [2017] NSWCCA 284 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Todd [1982] 2 NSWLR 517 Robertson v R [2017] NSWCCA 205
Category:	Sentence
Parties:	Regina Peter Yim Lin (aka Yimeng Lin)
Representation:	Counsel: P Leask (Crown) G Smith (Offender)
File Number(s):	2015/00144576
Publication restriction:	Nil