Song Lin v Regina

Court of Criminal Appeal (NSW)|2007-12-11|Before: Basten JA, Barr J, Adams J

CITATION: Song Lin v Regina [2007] NSWCCA 368

JUDGMENT OF: Basten JA at 1; Barr J at 2; Adams J at 20

DECISION: 1. Grant leave to appeal and allow the appeal. 2.Quash the sentence appealed from and, taking into account the possession of cocaine noted in para 6 of the agreed statement of facts, sentence the appellant to imprisonment. Fix a non-parole period of 4 years, commencing on 2 January 2005, and a head sentence of six years. Declare that he is eligible to be released to parole on 1 January 2009.

PARTIES: Song Lin Regina

COUNSEL: J Overall T Thorpe

SOLICITORS: R Zhou S Kavanagh

IN THE COURT OF CRIMINAL APPEAL 2006/5223

BASTEN JA BARR J ADAMS J

21 DECEMBER 2007 SONG LIN v REGINA Judgment 1 BASTEN JA: I agree with the orders proposed by Barr J and with his Honour's reasons. 2 BARR J: Song Lin has applied for leave to appeal against a sentence imposed in the District Court. He pleaded guilty to the offence of knowingly taking part in the manufacture of the commercial quantity of methylamphetamine and asked the Court in sentencing him to take into account his possession of 0.26 grams of a prohibited drug, namely cocaine. He was sentenced to imprisonment for eight years with a non-parole period of six years. The maximum penalty is imprisonment for twenty years. The commercial quantity is 0.25 kilograms. 3 Kar Wah Lau and Kam Wing Lo were involved in the same manufacturing enterprise. Each pleaded guilty and was sentenced. Lau was charged with the manufacture of the large commercial quantity of methylamphetamine. The large commercial quantity begins at 1 kilogram, and the amount with which he was concerned was agreed to be 8.8 kilograms. He was sentenced to imprisonment for twelve years with a non-parole period of nine years. The maximum sentence for that offence is imprisonment for life. 4 Lo pleaded guilty to aiding and abetting Lau in the manufacture of the large commercial quantity of methylamphetamine. He was sentenced to imprisonment for six years with a non-parole period of four years. 5 There are two grounds of appeal. The first is the that the sentence is manifestly excessive. The second complains of a lack of parity between the sentence appealed from and that imposed on Lo. These grounds may be dealt with together. 6 The different ways in which the charges were framed against each offender, Lau with manufacturing, Lo with aiding and abetting manufacture and the applicant with being knowingly concerned in manufacture - was presumably intended to distinguish between their respective roles, though the precise charge finally preferred against each may have been a product of negotiation between the Crown and the individual accused. The forms of the individual charges is of limited use in assessing criminality. The only reliable indicator is what each offender did and with what intent. That and the range of sentences applicable - up to life imprisonment for Lau and Lo and up to twenty years' imprisonment for the applicant - were bound to be the principal determinants in sentencing.

The facts 7 A statement of agreed facts was tendered on the sentence of each of the three offenders. A laboratory was set up at a home unit at Carlingford, but there was no evidence about who established it. The unit was apparently under the control of a man who was never charged and was absent from Australia at all material times. Lau and Lo were Chinese subjects resident in Hong Kong. Lo came to Sydney in November 2004 and Lau in December 2004. The applicant was an Australian citizen resident living in Hurstville. The police watched the movements of the three and listened to their conversations between November 2004 and 2 January 2005, when they were all arrested. Upon Lo's arrival in Sydney Lin helped him to find accommodation in Chinatown. There were meetings and telephone calls between Lin and Lo and between Lo and Lau. There were many conversations in Cantonese between Lin and a man called Gan, who was not charged, in which Lin asked how to get his hands on things he needed to buy. Lin purchased or spoke about the purchase of a large number of items, including an enamel basin, bottles of water, a funnel, a water tin, a stove or burner, a vacuum cleaner for use as a blower, a gas stove, a silicon gun, a gas pressure reducing valve, plastic bags, rubber gloves, tongs, sealer, glue and a drill. Several of these things were found in the laboratory or at the applicant's residence after the arrest of the offenders. The applicant boasted to Gan about the way he had adapted a funnel by drilling to make the laboratory apparatus more effective. He frequently complained to Gan about Lau and Lo. He accused Lau of being secretive. He was contemptuous of Lo. He was seen in the company of both or either of them from time to time near the laboratory at Carlingford. He was not far from that place when he was arrested. 8 The statement of facts also contained a concession that the Crown could not prove that the applicant knew that the large commercial quantity of methylamphetamine was being manufactured.

The findings on sentence 9 Lo was sentenced in June 2006, his Honour described his role thus - It appears that the role played by the offender in the operation was that of a labourer. His job was to shop, assist others in their shopping, to remove garbage from the house where the manufacturing process was taking place and generally it seems to run around at the request of others. The others are Mr Lau who was the cook, and Mr Lin who appears to have played the role of organiser. I will sentence the offender on the basis that he did what he was directed to do by others. He was, it must be remembered, not charged by the Crown as a principal in the first degree but as an aider and abetter.

10 His Honour noted claims made on behalf of Lo that Lo would serve his sentence harder because of the physical or mental illness of his wife, who was still in China, but rejected those submissions in the absence of any satisfactory evidence. His Honour rejected the claim, relaid through the report of a psychologist, that Lo was remorseful. However, his Honour noted a good report from the prison authorities about the behaviour of Lo since his arrest and made in his favour a finding that he was "remorseful but to a very limited extent". His Honour rejected a claim that Lo was motivated by the need to repay a debt. His Honour noted that Lo spoke little or no English and would lack visits from family members and that he would consequently serve his sentence harder. His Honour noted the early plea of guilty, registered in the Local Court, and said that he would reduce the sentence by twenty-five per cent on account of it. His Honour noted that Lo had no prior criminal history. In view of the fact that he was not young (he was forty-six years old), his Honour considered it unlikely that he would re-offend. For the purposes of s44 Crimes (Sentencing Procedure) Act his Honour observed that Lo would be serving his sentence in a foreign country and that the sentence would be harder because of the knowledge that he had left his family behind without his support. Those circumstances were special and resulted in the adjustment of the parole and non-parole components of the sentence. 11 His Honour sentenced the applicant and Lau in November 2006. The facts put before the Court on that occasion contained a significant change. Whereas in June it had appeared that the applicant had played the role of organiser, his Honour was not satisfied that his role was as great as that. His Honour said this - Mr Lin is an Australian citizen and his involvement in the process began much earlier than Mr Lau's. It seems that he first came to the attention of police on 17 November 2004, five days after Mr Lau arrived in Sydney and then was responsible for arranging things, so that Mr Lau would be able to manufacture the methylamphetamine in the manner I have described. When I sentenced Mr Lo I said that it appeared that Mr Lin played the role of organiser. However, it may not be that I am able to make the same finding when I sentence him. For reasons which are not at all apparent, but which are no doubt soundly based, the offender is charged with only knowingly taking part in the manufacture of less than a kilogram of methylamphetamine. That tends to suggest acceptance by the Crown that in this matter he acted at the direction of others. Mr Jeffreys submitted that I should find that his client was the general dog's body, who did not know that more than one kilogram of methylamphetamine was to be produced. I will sentence his client on that basis, because of the charge chosen by the Crown. However, that does not mean that Mr Lin's conduct is not serious. Quite clearly Mr Lin was a very enthusiastic participant in the manufacturing process. He seems to have had a personal interest in the outcome being successful, getting frustrated at times when things did not progress as quickly and as smoothly as he would have preferred. Mr Lin was deeply involved and went to considerable trouble to see the illegal enterprise come to fruition. Further, he was engaged on his illegal activities for some considerable time, much longer than Mr Lau, who came to the attention of the authorities later than Mr Lin.

12 Subjectively, Lin put forward a case comparable with Lo's. He was forty-three years old when sentenced. He was born in China and came to Australia in 1989. He had family in China. He had committed one minor criminal offence, which did not count in sentencing. He had pleaded guilty in the Local Court and had earned a twenty-five per cent discount. He wrote a letter to the Court saying how sorry he was, and his Honour accepted it.

The appeal 13 It was submitted on appeal, and may be accepted, that those who are convicted of association with the manufacture of the commercial quantity of a drug tend to receive lower sentences than those so concerned with the large commercial quantity. Reference was made to statistical records published by the New South Wales Judicial Commission. 14 It was submitted that the applicant played a similar role to Lo's but received a total sentence that was one-third greater and a non-parole period that was half as long again as Lo's. It was submitted that the telephone calls, the detail of which is set out in the statement of facts, showed that the applicant had no role in the manufacturing process and was prevented from seeing the process or having access to plans. Those submissions may be accepted. One of the applicant's complaints to Gan was that Lau refused to share significant information with him. So the applicant's role was limited to purchasing and, on the occasion about which he boasted, modifying equipment. He drove the other offenders around the city and accompanied them on visits to the casino, the Blue Mountains and other places. 15 It seems to me that these submissions are soundly based. It is correct to say, as his Honour remarked, that the applicant was an enthusiastic participant, was deeply involved and went to considerable trouble to see the illegal enterprise come to fruition. That conclusion may be reached from things the applicant was heard to say to Gan. That is not to say, however, that the others were not equally enthusiastic about what they did. Labours were divided and there can be no suggestion on the agreed facts that any of them failed to play his part. 16 The respective roles of Lo and the applicant were characterised in different words by his Honour but what emerges is that neither had any executive authority and carried out tasks from time to time as directed by somebody else. As his Honour found, the applicant acted over a longer time, but if his role was greater, as his Honour thought, it was not so much greater as to justify the difference in sentences and non-parole periods that is now complained of. And when it is remembered that the maximum sentence faced by Lo was imprisonment for life whereas that faced by the applicant was twenty years, it is surprising that the applicant's sentence is greater than Lo's. 17 I think that the applicant has a justifiable sense of grievance by reference to the sentence imposed on Lo. It seems possible that his Honour erred because he was misled, when sentencing Lo, about the role played by the applicant. However that may be, I think that this Court should interfere. 18 It seems to me that the applicant has much the same case as Lo had for the purposes of s44 Crimes (Sentencing Procedure) Act. This is his first time in custody. His family are in China and he will not have the benefit of their visits to support him. His sentence, as a result, will be served harder. To my mind these circumstances combine to justify an increase in the period of parole and corresponding reduction in the non-parole period. 19 I propose the following orders - 1. Grant leave to appeal and allow the appeal; 2. Quash the sentence appealed from and, taking into account the possession of cocaine noted in para 6 of the agreed statement of facts, sentence the appellant to imprisonment. Fix a non-parole period of 4 years, commencing on 2 January 2005, and a head sentence of six years. Declare that he is eligible to be released to parole on 1 January 2009. 20 ADAMS J: I agree with Barr J.

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