Lin v R - [2010] NZCA 141

IN THE COURT OF APPEAL OF NEW ZEALAND
CA817/2009
[2010] NZCA 141
BETWEENOSCAR YU-CHENG LIN
Appellant

ANDTHE QUEEN
Respondent

Hearing:19 April 2010

Court:Glazebrook, Winkelmann and Venning JJ
Counsel:M A Edgar for Appellant
M D Downs for Respondent

Judgment:27 April 2010 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]       Mr Lin was found guilty of importing large quantities of pseudoephedrine (a Class C controlled drug) to New Zealand from China and a related count of possessing pseudoephedrine for supply. The pseudoephedrine was contained in a cold and influenza medication called Contac NT. Mr Lin contends that the sentence of three years imprisonment is manifestly excessive having regard to the sentences imposed upon his co-defendants and his prospect of reform (Mr Lin is 21 years old and without prior convictions). He also submits that a sentence of home detention should have been imposed, following R v Hill.[1]
[1]      R v Hill [2008] 2 NZLR 381 (CA).
[2]       The Crown submits that all of the defendants, including Mr Lin, were treated leniently as a consequence of the adoption of incorrect starting points.
Background
[3]       Mr Lin is one of a group of young men who imported Contac NT medication from China concealed in furniture and paraphernalia. The broader ring imported a total of 32.86 kilograms of Contac NT or 13.28 kilograms of pseudoephedrine with a potential yield of 6.64 – 9.94 kilograms of methamphetamine.
[4]       Mr Lin’s role was limited to providing two consignment addresses and handing the substance on to the co-defendant higher in the chain (Mr Chen). The first package connected with Mr Lin was intercepted. It contained 9.71 kilograms of Contac NT or 3.8 kilograms of pseudoephedrine with a potential yield of 1.9 – 2.85 kilograms of methamphetamine.
[5]       The second package was sent to Mr Lin’s home address. He was present and signed for it under a false name. The co-defendant (Mr Chen) came to collect it that afternoon. This package contained 5.3 kilograms of Contac NT or 2.2 kilograms of pseudoephedrine with a potential yield of 1.1 – 1.65 kilograms of methamphetamine.
[6]       Those higher in the chain of command, namely Messrs Chen and Nie, (ultimately) pleaded guilty and assisted the authorities. Mr Lin and the remaining co-defendant, Mr Xu, went to trial.
Sentencing remarks
[7]       Judge Sharp was dealing with the sentences of the four accused mentioned above: Mr Chen, Mr Nie, Mr Xu and Mr Lin. She noted that, in assessing the relevant starting points for each of the men, the balancing of three factors was necessary: the role played; the number of importations; and the quantity of pseudoephedrine. The Judge relied on the decision of Winkelmann J in R v Ho[2] which she considered had developed something of a tariff case reputation. In that case, a range of three to five years was suggested for those who are not the instigators, masterminds, prime movers and controllers of a Class…

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 Lin v R

Details

AGLC: Lin v R [2010] NZCA 141
Case: [2010] NZCA 141
Decision Date: 27 April 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Oscar Yu-Cheng Lin, who was convicted of importing large quantities of pseudoephedrine, a Class C controlled drug, from China to New Zealand and possessing the drug for supply. The primary contention was that the sentence of three years imprisonment was manifestly excessive, particularly when considering the sentences imposed on his co-defendants and his prospects of reform. Lin argued that, given his age and lack of prior convictions, a sentence of home detention should have been imposed. The Crown argued that all defendants, including Lin, were treated leniently due to the adoption of incorrect starting points.

The court examined the legal issues concerning the appropriate starting point for sentencing, the relevance of the quantity of the drug involved, and the applicability of home detention in this case. The court noted that the sentencing judge had relied on a High Court decision rather than relevant Court of Appeal authorities. The Crown highlighted that the starting point for one of the co-defendants was set too low, which would consequently affect the appropriate starting point for Lin. The court found that the starting point for Lin was reasonable given the judge's assessment of relative culpability and the generous discount applied, considering there was no guilty plea. The court also concluded that home detention was not appropriate due to the seriousness of the offending and Lin's prospects for rehabilitation.

In conclusion, the appeal was dismissed, and the sentence of three years imprisonment was upheld. The court found no basis to interfere with the sentencing judge's assessment and the overall sentence imposed.

Orders