R v Lin

[2000] NSWCCA 542

CITATION:	R v Lin [2000] NSWCCA 542
FILE NUMBER(S):	CCA 606344/99
HEARING DATE(S):	11 August 2000
JUDGMENT DATE:	11 August 2000
PARTIES :	Regina David Min Lin
JUDGMENT OF:	Beazley JA at 1; Wood CJ at CL at 16; Greg James J at 21

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/3029
LOWER COURT JUDICIAL OFFICER :	Sides DCJ

COUNSEL :	Appellant: J C Papayanni Crown: M Ierace SC
SOLICITORS:	Appellant: Jeffreys & Associates Crown: Commonwealth Director of Public Prosecutions
CATCHWORDS:	Criminal law - conspiracy - sentence - no adjustment to be made
LEGISLATION CITED:	Crimes Act 1914 (Cth); ss 16A(2), 16G, 86(1A) Criminal Appeal Act (NSW); s6(3)
CASES CITED:	R v Budiman (1998) 102 A Crim R 411 R v El Karhani (1990) 21 NSWLR 370 R v Lee [1998] 1 ER 637 R v Beeforth (unreported, New South Wales Court of Criminal Appeal, 24 November 1995)
DECISION:	Leave to appeal granted; Appeal dismissed; Sentence confirmed

IN THE COURT OF

CRIMINAL APPEAL

CCA 60634/99

BEAZLEY JA
WOOD CJ at CL
GREG JAMES J
Friday 11 August 2000

REGINA v DAVID MIN LIN

JUDGMENT

1    BEAZLEY JA: On 27 September 1999 Mr David Min Lin pleaded guilty to a charge of a conspiracy to commit an offence under section 86(1A) of the Crimes Act 1914 (Cth). The maximum penalty for the offence prescribed at that time was two years and/or a fine of $13,200.

2    On 28 September 1999 Sides DCJ sentenced Mr Lin to twelve months' imprisonment to commence on 28 September 1999. His Honour directed Mr Lin was to be released after the expiration of eight months of his sentence on recognisance in a sum of $200 to be of good behaviour for a period of two years from the date of his release.

3    The applicant was one of a number of people who were arrested following an unsuccessful attempt to smuggle sixty-nine Chinese illegal immigrants into Australia in May 1999. These persons had travelled to Australia on a vessel called the ‘Ka Yuen’ pursuant to arrangements which had been put in place by a criminal syndicate in Hong Kong. Once in Australian waters off the local Sydney coast it was planned to bring these persons ashore in a smaller fast speed boat. A boat called the ‘Gruesome’ was purchased for that purpose. A number of local Sydney residents all of Chinese origin were found to be involved in the conspiracy to bring the illegal immigrants into Australia.

4    The main local organiser was identified as a Mr Xin Chen (Chen). Mr Lin was introduced into the conspiracy by Chen on 8 May 1999. By that time the conspiracy was well advanced both at the Hong Kong and Australian end, but there were still major arrangements which needed to be made in Australia to bring the matter to fruition.

5    His Honour found, and there has been no contest, that Mr Lin's involvement, which was solely at the Australian end, was as follows. He had visited a number of jetties and wharves in the Sydney area inspecting them for the purposes of launching the boat ‘Gruesome’ for bringing the illegal immigrants ashore. He had attended to the rental of a number of vehicles including a Nissan Patrol, two Toyota Taragoes and a Toyota Mini-Bus. Together with Chen had organised others to assist in the driving of the vehicles. He had made arrangements for the rental of an additional house. He purchased three maps at the request or instruction of Chen. He had also been with Chen and assisted in identifying appropriate rental property. He assisted with the launch of the ‘Gruesome’ and he in fact boarded that boat. After the ‘Gruesome’ developed engine troubles and wasn't able to be used to bring the illegal immigrants ashore as had been planned, he took steps to have the boat repaired. These steps included making enquiries to locate a mechanic and he also went to collect a smaller boat which was owned by Chen which was to be used in the event that the ‘Gruesome’ could not be repaired. He expended in excess of $2000 of his own money in various purchases associated with the conspiracy and in the rental of the vehicles.

6    His Honour the sentencing Judge considered that these matters indicated that Mr Lin’s “was a very active role”. His Honour noted that there was no evidence that he was a principal or a financier of the conspiracy. Nonetheless, he observed that the success of this enterprise depended upon the persons on the ship being brought ashore very quickly and once ashore being moved away from the landing point. His Honour found “this was particularly crucial” as the illegal immigrants were to be brought ashore in a densely populated area. His Honour concluded that Mr Lin “was thus an important cog in the wheel of this venture and his role was important to the overall success of the venture”. His Honour further found that the reason for his involvement in the conspiracy was financial gain. He was to have received $3000 as well as be refunded the money he had himself expended.

7    His Honour took into account a number of factors in determining what was the appropriate sentence to impose. He made reference to his early admissions, his early plea of guilty and his early offer to assist authorities. He considered all of these matters indicated a strong case of contrition. However, later in his remarks on sentence, he expressed his concern that Mr Lin had not appreciated the enormity of his crime. He considered the attempts Mr Lin made during the course of his evidence to minimise his involvement demonstrated that. His Honour thought Mr Lin lacked insight into the real nature of his participation. He thought that for that reason there was a necessity to apply personal deterrence in the matter. He also considered the general deterrence was an important consideration.

8    In relation to the plea of guilty his Honour noted that it was clear that the prosecution had a strong case in any event. It was also clear that the assistance offered and the assistance which was promised, although real, would be of limited value having regard to the extent of the evidence which was already in the hands of the investigating police. If anything, it would seem that the assistance which he could provide was of a corroborative nature.

9    His Honour noted that this was a very serious offence and that he considered Mr Lin's involvement fell into the worst type of case, notwithstanding that he was not at the top of the hierarchy of those involved. His Honour believed that a custodial sentence needed to be imposed and that to do otherwise would be an affront to community standards. He took into account Mr Lin’s prior good character and other personal circumstances which he noted would invite the sympathy of a Court.

10    It is submitted on behalf of Mr Lin that the trial Judge fell into error in the sentencing process in a number of respects. First, it was submitted that his Honour was influenced by the fact that the sentence for this particular offence has been increased substantially to a maximum sentence of ten years and that in engaging in the sentencing process his Honour had his mind on that maximum penalty rather than the penalty which was relevant at the time. Although there was minimal reference made during the course of oral submissions to the increase in the penalty and although the Crown referred to this in their written submissions, there is no reference whatsoever to it in his remarks on sentence, nor is there any reference in the discussion between his Honour and counsel which would indicate that his Honour had any regard to other than what was the penalty at this time. I consider that there is no force in the submission put forward.

11 It was next submitted that his Honour erred in the manner in which he applied the provisions of s 16G of the Crimes Act (Cth). That section provides that if a Federal sentence is to be served in a prison of a State where State sentences are not subject to remission or reduction then the Court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly.

12    The complaint which is made here is not that s 16G was ignored by his Honour but that it was applied wrongly by his Honour. It is unclear from his Honour's remarks on sentence whether, in determining the appropriate sentence which could be imposed, he took into account the assistance which had been provided and which had been undertaken to be provided to the authorities together with the other matters which were relevant here under s 16A(2) and then applied section 16G, or whether he engaged in the reverse process. If it was the latter, his Honour was in error, as has been said consistently by the Court in dealing with this particular section (see for example R v Budiman (1998) 102 A Crim R 411 at 415; R v El Karhani (1990) 21 NSWLR 370 especially at 384 to 385; and R v Lee [1998] 1 ER 637 at 642).

13 I think it is better to proceed on the basis that his Honour did err in the manner in which he applied s 16G and, therefore, I consider that leave to appeal should be granted. However, s 6(3) of the Criminal Appeal Act (NSW) provides that on an appeal against sentence, unless the Court is of the opinion that some other sentence other than that imposed by the sentencing Judge should have been imposed, the Court on appeal should dismiss the appeal.

14    In my opinion the sentence imposed by his Honour having regard to the seriousness of the offence, the extent of criminality of Mr Lin, even taking into account the assistance to authorities and the relevant matters under s 16A(2) was appropriate and ought not to be interfered with. In arriving at this view, I have had regard to the submission that Mr Lin's co-offender Chen received a sentence of fifteen months with a period of imprisonment of twelve months to be served and that Chen was more extensively involved and at a higher level in the hierarchy and that having regard to the principles of parity Mr Lin's sentence was disproportionate. I do not agree. There is not in fact any disparity. Mr Lin received approximately two-thirds of Chen's sentence and, as I have indicated, the sentence which was imposed by the sentencing Judge here was, in my view, an appropriate one.

15    It was also suggested that this was an appropriate case for periodic detention and that his Honour erred in failing to permit a pre-sentence report to be obtained, that being a pre-requisite to a sentence of periodic detention. It will be obvious from what I have already said that I do not consider that this was a case appropriate for periodic detention. It was a serious crime. There was a high level of involvement by Mr Lin. It was a case that called for a custodial sentence and I consider that the custodial sentence imposed by the sentencing Judge was an appropriate one. I therefore propose that the appeal be dismissed.

16    WOOD CJ at CL: I agree. I only wish to add that s 16G of the Crimes Act requires that the Court make an adjustment to the sentence, in the particular case before it, as is appropriate for that case, having regard to the fact that the offender will serve the sentence imposed in a State which does not provide for remissions.

17    Two observations may be made in this regard. First, while it has been customary to reduce the sentence otherwise appropriate by a factor of approximately one-third, there is no rule of law to the effect that this is to be the adjustment to be made automatically in every case (see R v Beeforth unreported, New South Wales Court of Criminal Appeal, 24 November 1995). Secondly, it is inappropriate to follow the course, which appears to me to have been advanced in this case, requiring the sentencing Court to give cumulative and separate credit for each and every one of the mitigating circumstances which may be present. Otherwise this risks producing a sentence which lacks proportionality to the total criminality involved. In many instances those circumstances of a mitigating kind do overlap and this Court has made it plain that it is inappropriate to simply accumulate them separately.

18    Having regard to the matters identified by the presiding Judge I am not persuaded, if any error was in fact disclosed by the approach taken by his Honour, that the sentence which could have been imposed would have been other than that in fact imposed. The objective criminality involved in large scale people smuggling, and the risks of hardship and exposure to extortion associated with that activity are both evident and significant. The offence is such that a real element of deterrence is required both personally and generally.

19    I am satisfied in this case that the criminality of the applicant was extensive and that the sentence imposed below was entirely appropriate.

20    I would agree while leave to appeal should be granted the appeal should be dismissed.

21    GREG JAMES J: I agree with the orders proposed by the presiding Judge. I agree with the reasons she has given. I agree with the remarks made by the Chief Judge at Common Law.

22    BEAZLEY JA: The orders which the Court makes are as follows:

(i) Leave to appeal is granted.
(ii) The appeal is dismissed.
(iii) Confirm the sentence imposed by the sentencing Judge and note that the appellant is eligible to be released six months less two days from today having already served two months and two days of the custodial portion of the sentence.