R v Lin No. DCCRM-01-807

[2002] SADC 4

R v XIA MING LIN aka A DI XIE
[2002] SADC 4

Judge Lunn
Criminal

1. Xia Ming Lin, also known as A Di Xie, pleaded guilty in this Court on 29 October 2001 to the offence of being knowingly concerned in the importation of not less than a trafficable quantity of heroin contrary to Section 233B(1)(d) of the Commonwealth Customs Act 1901.  A nolle prosequi was entered on a second count of possessing a prohibited import and I ignore that count.

2. I act on the facts as disclosed in an agreed summary of facts and on what was put forward in the course of submissions.  Lin was an indigent illegal immigrant living in Sydney.  He was befriended by a person who gave him accommodation and other assistance.  He has declined to name that person.  That unnamed person offered him $1,000 to $2,000 to take part in the offence.  That unnamed person brought him to Adelaide and booked him into a room in an Adelaide motel under a false name.  This was on or about 18 March 2001 and he was booked in until 29 March.

3. On 26 March customs officers at the Australia Post Mail Exchange in Adelaide intercepted two boxes which had been posted from Thailand and addressed to Lin at the motel.  Upon examination it was found that each box had four plastic sachets secreted under the bottom cardboard flap.  Each sachet was found to contain about 30 grams of white powder of which 133.8 grams in total was pure heroin.  On 27 March the boxes were delivered to Lin at the motel and he signed receipts for them.  Shortly afterwards a search of his room revealed that both of the boxes had been opened and some of the sachets removed from the boxes,

4. At the same time as customs officers detected the two boxes addressed to Lin at the Mail Exchange they also detected two similar boxes containing heroin addressed to a James Arthur at another Adelaide motel.  The amount of heroin in the boxes addressed to Arthur was about 168 grams.  Arthur was charged with a similar offence of being knowingly concerned in the importation of heroin, but was not charged jointly with Lin.  Arthur pleaded guilty on 26 September 2001 and was sentenced by another Judge to imprisonment for four years with a non parole period fixed at 18 months.

5. Lin is 23 years of age and was born in China.  After some accusations about being involved in the construction of a defective building, which he claimed were false, Lin fled China in about 1996 and went to Taiwan.  In 1998 he entered Australia as an illegal immigrant and thereafter lived on the charity of friends and some casual work.  He speaks no English.  He has no family or support network in this State.

6. I have a report dated 17 December 2001 from Mr Balfour, a psychologist, whose contents I have taken into account.  Lin has no abnormal psychological condition and thus the report is merely additional background information.  He told Mr Balfour that he committed the offence because he needed the money.  Although he has some history of drug use it was not suggested that it was a major problem for him or related to the commission of the offence.  Although he wishes to remain in Australia, it is likely that Lin will be deported once his non parole period expires.  However, I am still to set a non parole period on the same criteria as if he was not apparently liable to deportation: Lee-Doyle v Police, Martin J, 16/8/01, Jud No [2001] SASC 292, unreported.

7. Upon his initial arraignment Lin pleaded not guilty but changed his plea to guilty before a trial date was set.  He is entitled to a substantial discount for that plea.  However, Lin has not co-operated with the police in disclosing the identity of the person who organised the offence because he says he fears for his safety if he does so.  That is his decision, but it means that he is not to receive any additional discount on his sentence for assisting in the administration of justice.  The general deterrent element of the sentence must make it clear to other persons in the position of Lin that they cannot protect the persons higher up the distribution chain of heroin and expect to be treated leniently: R v Barber (1976) 14 SASR 388.

8. Although Lin and Arthur were not jointly charged with the same offence, it was accepted that some considerations of parity were applicable for the sentence to be imposed on Lin.  However, it is only one factor in the sentencing process and the sentence received by Arthur is not my starting point.

9. I accept that Lin is contrite and remorseful for the offence.  It is unlikely that he would re-offend.  Serving a prison sentence in South Australia will be a hardship for him because of his lack of English and the absence of any family or friends in this State.

10. The authorities are clear that a substantial sentence must be imposed for reasons of general deterrence.

11. My starting point is a sentence of imprisonment for 6 years.  I am prepared to allow a discount of 25% for the plea of guilty.  Arthur received a total discount of 33-1/3% both for his plea and for some co-operation with the police.  Lin is not entitle to any discount for co-operation.  But for parity considerations I would not have granted him a discount of more than about 20% as there was a strong prosecution case against him.  Thus he will be imprisoned for 4½ years.  Because of the seriousness of the offence, and the need for the general deterrence element of the sentence to be reflected also in the non parole period, I am not prepared to fix the non parole period at less than half of the head sentence.  Accordingly, the non parole period is fixed at 2 years and 3 months.  Insofar as that may produce any disparity with the sentence imposed on Arthur I consider that proper sentencing principles require the non parole period to be as I have set it: R v Di Maria (1996) 67 SASR 466. Both the sentence and the non parole period are backdated to 27 March 2001 when Lin was taken into custody. There will be an order for the forfeiture of the heroin seized.