Yin v R

Case [2019] NSWCCA 217 17 September 2019

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Yin v Regina [2019] NSWCCA 217
Hearing dates: 28 June 2019
Date of orders: 17 September 2019
Decision date: 17 September 2019
Before: Bathurst CJ at [1]; Harrison J at [54]; N Adams J at [55]
Decision:
(1) Refuse leave to appeal.

Catchwords:
CRIME – Drug offences – Commonwealth offences – Import/Export border-controlled prohibited plant or drug – Import commercial quantity of methamphetamine – Two co-offenders

CRIME – Appeals – Appeal against sentence – Whether error in assessment of objective seriousness – Comparison of seriousness of applicant’s offending and that of two co-offenders
CRIME – Appeals – Appeal against sentence – Co-offenders – Disparity between sentences – Whether gives rise to a justifiable sense of grievance
Legislation Cited: Criminal Code (Cth)
Cases Cited: Biddle v R [2017] NSWCCA 128
Chan, Lo and Nguyen v R [2010] NSWCCA 153
Clarke v R [2015] NSWCCA 232
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Green v The Queen; Quin v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hordern v R [2019] NSWCCA 138
Klomfar v R [2019] NSWCCA 61
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Postiglione v The Queen (1997) 189 CLR 295
R v Lee [2007] NSWCCA 234
R v Nguyen; R v Pham [2010] NSWCCA 238
R v O’Donoghue (1988) 34 A Crim R 397
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Yuan [2015] NSWCCA 198
Turnbull v Chief Executive of the Office Environment and Heritage [2015] NSWCCA 278
Texts Cited: Nil
Category: Principal judgment
Parties: Po-Wen Yin (applicant)
The Crown (respondent)
Representation:
Counsel:
A Conwell (applicant)
A McGrath (respondent)
Solicitors:
Sunny Chen and Associates (applicant)
Commonwealth Director of Public Prosecutions (respondent)

File Number(s): 2016/299617
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Common Law

Citation:

Nil

Date of Decision:

18 September 2017 (date of conviction)
1 December 2017 (date of sentence)

Before:

Judge Sweeney

File Number(s):

2016/299617

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a two week trial, Mr Po-Wen Yin (the applicant) was found guilty of possessing a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to section 307.5(1) of the Criminal Code (Cth). The applicant was sentenced to 16 years imprisonment with a non-parole period of 10 years.

The offence involved the unlawful importation from Taiwan of 41 kilograms of methamphetamine of which 33 kilograms was pure methamphetamine. The sentencing judge found that the applicant committed his offence with two co-offenders, Mr Chun-Yuan Huang and Mr Wei-Len Lu. Mr Huang and Mr Lu pleaded guilty to a charge of attempting to possess a commercial quantity of methamphetamine and were each sentenced to 10 years imprisonment with a non-parole period of 6 years, after a 25% discount for their pleas of…

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 Yin v R

Details

AGLC: Yin v R [2019] NSWCCA 217
Case: [2019] NSWCCA 217
Decision Date: 17 September 2019

CaseChat Overview and Summary

The case of Yin v R involved two co-offenders, Yin and another individual, who were found guilty of importing a commercial quantity of methamphetamine, a prohibited drug, into Australia. The case was heard in the High Court of Australia, which was asked to review the sentence imposed on Yin and assess whether there was an error in the assessment of the objective seriousness of his offending, particularly in comparison to his co-offender. The central issue was whether the disparity in sentencing between Yin and his co-offender gave rise to a justifiable sense of grievance.

The court was required to consider whether the sentencing judge had erred in assessing the objective seriousness of Yin's offending. This involved evaluating the nature and extent of Yin's involvement in the drug importation scheme, as well as the impact of his actions on the community. The court also had to determine whether the significant disparity in sentences between Yin and his co-offender was justified and whether it gave rise to a sense of grievance. The assessment of the objective seriousness of the offending and the comparison of sentences between co-offenders were central to the court's decision.

The High Court found that the primary judge had not erred in assessing the objective seriousness of Yin's offending. The court determined that Yin's role in the importation of a significant quantity of methamphetamine was substantial and warranted a severe sentence. The court also concluded that the disparity in sentences between Yin and his co-offender did not give rise to a justifiable sense of grievance, as it reflected the differing levels of culpability and involvement in the offence. The appeal was ultimately dismissed.

The final orders of the court were to dismiss the appeal against sentence and affirm the sentence imposed on Yin by the sentencing judge. The court's decision emphasised the importance of considering the objective seriousness of the offence and the individual circumstances of each offender when determining an appropriate sentence.

Orders