Lin v R; Ng v R

Ground 1

1. The nature of the assistance relied on in this case is unusual. The Applicants sought and in April 2013 obtained an interview with a law clerk employed by the solicitors who represented them. They told him that they wanted to assist authorities and obtain a lighter sentence, that he should speak to Mr Ng's father and that information would be forthcoming about a shipment of drugs. The law clerk contacted the NSW Crime Commission, spoke to the Applicants again and then in December 2013 or January 2014 went to Hong Kong. There Mr Ng senior informed the law clerk that a shipment of over 10 kg of drugs would be forthcoming but he should await a phone call for confirmation.
2. Some months later such a phone call was received. The caller did not give his name but said that he was calling on behalf of Mr Ng senior. He provided two consignment numbers and information to the effect that the shipment would arrive by air. The information provided led to the seizure of a significant quantity of drugs and the arrest of the consignee. Although the Crown contended before Sweeney DCJ that the circumstances did not amount to assistance by the Respondents her Honour concluded that their involvement in, and encouragement of, co-operation by others constituted co-operation that fell within the terms of s 16A(2)(h) of the Crimes Act 1914 (Cth). Her Honour found support for this conclusion in the decision of R v Jalalaty [2010] NSWSC 1561 and, at least in principle, was clearly correct.
3. Her Honour was also correct in observing that the fact that the information came from others did not reduce the value of the assistance but the Respondents' limited role did temper the discount she should award.
4. In so concluding it is appropriate to note the relevant terms of the Crimes Act and some aspects of the operation of the principle behind giving benefits for assistance to the authorities. Section 16A of the Act requires that a court, in determining a sentence to "impose a sentence that is of a severity appropriate in all the circumstances of the offence". Sub-section (2) requires the court to take into account a number of matters insofar as they are relevant and known to the court. One such matter is:- (h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences.
5. In R v Gallagher (1991) 23 NSWLR 220; (1991) 53 A Crim R 248 Gleeson CJ, with the concurrence of Meagher JA,, at p 230, 257 observed:- A judge who extends leniency on the ground here in question should say that this is being done and why. However, I am of the view that, subject always to any relevant statutory requirement, a sentencing judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is otherwise possible and appropriate to do so. For reasons earlier stated, there may be many cases in which it is either impossible or inappropriate to take that course. Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by "tariffs" derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice.
6. Any judgment as to the "degree" to which the Applicants have co-operated with authorities is well capable of considering what they have personally done, what information they have given, and whether their actions have merely been to point the authorities to others who do or might assist and/or encourage those others to provide assistance. Furthermore the place in the sentencing process of discounts for assistance and the discretionary nature of the assessment of those discounts means that a judge may take into account anything relevant.
7. Here, while the assistance to the authorities that resulted from the Applicants' actions was valuable, and their actions were an essential component of that assistance their role was limited and in valuing it the sentencing judge did not err in recognising that fact.
8. I might however add that there was one aspect of the matter which seems to have played no part in argument before her Honour or in her Honour's decision which is of concern. Mr Ng senior appears to have been the principal behind the importation in which the Applicants were engaged and to be someone who was approached regularly by people in Hong Kong and China to facilitate the importation of prohibited drugs into Australia. The Applicants first contacted the law clerk in on the topic in April 2013. The offence the subject of the information provided was committed in May 2014. It is by no means beyond the realm of possibilities that the offence the subject of assistance was the result of a plan to enable that assistance to be provided. If so, the assistance would merit no discount.
9. However, as this was not a topic canvassed below and the Crown is not seeking to have this Court reduce the allowance Sweeney DCJ made for assistance, I need not pursue that topic further.
10. The quantification of a discount for assistance is a matter involving the exercise of discretion or evaluation by a sentencing judge - see R v Chan [2010] NSWCCA 153 at [66]; R v Ehrlich [2012] NSWCCA 38 at [63]. The Applicants have failed to identify any error of fact or law made by her Honour in determining the discount for assistance, failed to show that her Honour had regard to any irrelevant matter or failed to consider a relevant matter or that her assessment was unreasonable or plainly unjust. I see no error unfavourable to the Applicants in the way her Honour went about the task. I would reject this ground of appeal.

Ground 2

1. Her Honour found:- On the basis of the activities performed by each of Mr Ng and Mr Lin in connection with the importation, I conclude they each performed an essential role with a high level of responsibility, focused on obtaining access to the containers retrieving the drugs from the containers, and delivering them to buyers in Australia. They were not simply couriers or warehousemen who were performing menial roles. They both took active roles in achieving their aim of obtaining access to the containers and the drug. Although they both acted on the directions and instructions of Ng Chung Hai, they both had senior responsible roles in Australia in securing the delivery of the containers, and retrieval and delivery of the drugs.
2. The agreed Statement of Facts set out in some 59 paragraphs incidents of the Applicant's offence and their actions. The actions included making arrangements with Mr Ng's half-sister to appear to be the consignee of the two shipping containers, having contact on a substantial number of occasions with shippers and further contact with Mr Ng's half-sister concerning arrangements, travelling from Hong Kong to Sydney and staying here for almost 2 weeks, discussing between themselves repairs to the containers, presumably after the drugs were removed, and difficulty in obtaining suitable material to effect this, and discussing other items needed. The discussions between the Applicants also extended to the packing of the drugs by Mr Lin and the inclusion of some powdered pepper to hamper sniffer dogs, the weight (not exceeding "twenty-two", presumably kilograms), the worth of the drugs ("$7,000 an ounce") and the price at which the drugs should be sold ("seventeen" or "seventeen five") and what arrangements should be made for the delivery and unloading of the containers. Other actions including discussions with Mr Ng's father in Hong Kong, finding, inspecting and then leasing premises to which the containers were to be delivered and having discussions with a potential buyer of the drugs.
3. (The references "seventeen" and "seventeen five" were accepted in the agreed Statement of Facts as references to $170,000 and $175,000 (per kilogram).
4. It was submitted that "The level of culpability of Mr Ng and Mr Lin is significantly lower based on the fact they were at the control of Mr Ng senior with no management or share of profits."
5. The submission should be rejected. The Applicants' roles were far removed from that of couriers and her Honour's finding that I have quoted were well justified. This ground of appeal also fails.

Ground 3

1. Mr Ng gave no evidence of what reward he was to receive or of the circumstances that led to his offending. Mr Lin said that he was to receive $HK200,000 - about $A27,700 - but given her Honour made no finding in this respect and clearly doubted Mr Lin's credibility, this cannot be relied on. Furthermore, the 21.9146 kg of methamphetamine involved in their offending is almost 30 times the minimum commercial quantity specified in Schedule 4 and for which Parliament has provided a heavy sanction. The Applicants were aware of the quantity and price. Their offending was deliberate and premeditated and, it may be inferred, because they thought the rewards, either monetary or familial, were worth the risks. As was said by Wood J in a well-known passage in Schaal (unreported, NSWSC, 8 September 1989), "just as those stakes (in the drug trade) are high, so, however, must be the risks if caught".
2. Methylamphetamine is a major problem in the Australian community. Most, if not all, of the propositions stated in R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72] have application to the approach that this Court should take and do not assist the Applicants.
3. The court was pressed by Counsel for the Applicants with a number of prior decisions - R v Studeniken [2004] NSWCCA 164; (2004) 60 NSWLR 1; Sukkar v R [2007] NSWCCA 298; R v Cas [2005] NSWCCA 192; NP v R [2008] NSWCCA 205; Mauceri v R [2007] NSWCCA 262.
4. However, these are not definitive of the appropriate range. Reference should be made also to R v Nguyen; R v Pham (supra) and Chan v R [2010] NSWCCA 153, cases relied on by the Crown.
5. I do not find it necessary to set out here the details of the numerous factors which led to the sentences imposed in these cases. I have read them and I am satisfied that there is nothing in them which indicates that the sentences imposed in this case were not within the legitimate exercise of her Honour's sentencing discretion. This ground also fails.

Order

1. Given the length of the sentences imposed I would grant leave to appeal but dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2016